Answer to the Declaration of the American which conftitute the colonial governments, three only excepted *. To what then does this charge amount? Do they mean, that his Majesty tion to acts of the colonial affemblies? is cautious in giving his royal confirmathat he takes time to revite them? that he waits till experience has proved them useful, before he gives them permanence and ftability? It was one of the ends for which this power was referved to the crown. Do they mean, that he has actually difallowed fuch acts as to his judgement appeared unfit to be allowed? That is the other end for which the power of difallowance was vefted in the crown. Do they complain of the exercise of this power? They complain, then, that they are not independent. To have an uncontrolled power of legiflation, is to be independent. ARTICLE I. He has refused his affent to laws, the most wholefome and neceffary for the public good. [xxxviii. 434.] ANSWER. Quod dedit principium adveniens? From the very outfet we may judge of the candour of the congrefs. Let any man unacquainted with the conftitution of America, but ask his felf, what conclufion he would draw from the perufal of this article? Would he not naturally conclude fuch to be the conftitution of America, that the King was of neceffity a party in every act of colonial legiflation? that no law could take effect, have any operation, till the royal affent was obtained? So far is this from being the cafe, that in every colony, there is a complete colonial legislature on the spot. In the royal governments, ART. II. He has forbidden his goverthis legislature confifts of his Majesty's nor to pafs laws of immediate and prefgovernor, the council, and houfe of affing importance, unlefs fufpended in their fembly, or reprefentatives. By his com- operation till his aflent fhould be obtainmiffion under the great feal, the govered; and when fo fufpended, he has utnor is authorifed to give the royal affent terly neglected to attend to them. to bills prefented to him by the council and affembly. From the moment of their receiving that affent, thefe bills become laws, have all the force and effect of laws. In this refpect the colonies have an advantage over Ireland. There a fpecial commiffion is required to empower the Lord Lieutenant to give the royal affent to each specific bill. [8.] But this power of assenting to laws not yet framed, is of the molt facred nature; too high to be intrufted to the difcretion of any fubject without fome controul, The King, therefore, retains the power of difallowing all laws to which the governor may have affented, and thereby voiding the act, if it be found to be inconfiftent with the tenor of his inftruetions, the good of the particular province, or the welfare of the empire at large. In the colony of Maffachufet'sbay, this difallowance must be fignified within three years in that of Pennfylvannia within fix months, from the time that the law is prefented to the King in council; in all the others without limitation of time. This power is exercised by the King in council; it has been exercifed by all his predeceffors, from the first establishment of the colonies; it is exprefsly referved in all the charters and commiffions VOL. XXXIX. ANS. This article contains two diftinct charges: the one, That his Majefly has inftructed his governors, not to pafs certain laws, unlets their operation be fufpended till his Majefty's pleasure be known; the other, That to laws pafled with this claufe of fufpenfion, his Majefty has utterly neglected to attend. Like the preceding one, this article is couched in terins that milead, that imply a falfehood. For would not any one conclude, that, in giving fuch inftructions, his Majefty had aflumed a new power, unexercifed by any of his predeceffors? introduced a practice unknown in former reigns? To what purpofe are these facts alledged? Is it not to characterife the government of his prefent Majefty; to diflinguith his conduct from that of his predeceffors; to citablifh the charge of ufurpation? Nothing, however, can be farther from the truth. For upon inquiry it will appear, that this practice, of inftructing the governor not to give his affent to laws of a particular and extraordinary nature, - and it is to fuch only that the case ap Namely, Maryland, Connecticut, and Rhode island. Even in thefe colonies, fince the Revolution, but not in the prefent reign, has this power been exercifed. plies; plies, until his Majefty could judge of the fitness and propriety of them, is fo far from being novel, that it was eftablished, and uniformly prevailed, before the acceffion, not of his prefent Majefty, but even of his Majefty's family, to the throne t. So far then as this article is brought to establish the charge of ufurpation in his prefent Majefty, it is abfofutely falfe. Is it meant to infinuate any objections to the measure itself? Let us fhortly expofe the nature of those inftructions. And here it may be neceffary to premife, that the governor of every colony has a negative in the paffing of all laws; and that he is controllable in the exercise of that power, by fuch inftructions as he fhall from time to time receive from the King, under his fignet and fign-manual, or by order in his privy council. Thofe who know the constitution of the colonies governed under immediate commiffion from his Majefty, and it is to thofe only that the cafe applies,- know this to be the fact. This once admitted, it follows, that there is a conftitutional power in the crown, of inftructing the governor to refufe his affent to fuch laws as his Majefty judges unfit to be paffed. By this teft then let us examine the juftice, or injuftice, of thefe inftructions. To what bills do these inftructions apply? To fuch only as are of an extraordinary nature, affecting the trade and fhipping of G. Britain, the prerogatives of the crown, and the property of the fubjects of the empire in general. Poffible it was, that laws of this nature fhould be paffed by the colonial legifla tures. It was more than poffible. Such laws were paffed. Frequent complaints of them occur in the journals of both houfes of parliament. in the first instance, to refuse their affent to all extraordinary bills, affecting the trade, or navigation, or property, of its fubjects in general, or its own juft and conftitutional prerogative. These points might, and perhaps not improperly, have been referved to the fole cognifance of the fupreme legiflature of the whole empire. But government, it should feem, apprehenfive, on the one hand, that this might, in fome cafes, bear hard on the colonies; and unwilling, on the other, to entrusft to the fole judgement of a local governor, what ought to be fubmitted to the judgement of the King, better able to fee and to combine the interefts of the empire at large, did not adopt this expedient. Under thefe circumftances, what was to be done? It was not, I fuppofe, to be endured, that local fubordinate legislatures fhould pass laws injurious to all the fubjects of the empire. How then were they to be reftrained from the affumption of a power they were fo prone to affume? Would not the crown have been juftified, had it recurred to the moft obvious expedient; to that which would prefent itself at firft fight? The expedient, I mean, of directing the governors, The practice was begun by Q Anne in the year 1708, and has ever fince been retained. Still eafier muft it have been to justify the crown, had the governors been inftructed not to affent to any fuch extraordinary law, till a copy of the bill fhould have been tranfinitted, and the royal approbation obtained. But fo anxious was the crown to guard against every unneceffary inconvenience that might accrue to the colonies, that even this expedient was not adopted without a particular qualification. Had the copy of the bills been tranfmitted, they muft, when returned with the royal approbation, have waited for another assembly; have repaffed through all the forms of being read, debated, and approved, by the assembly, the council, and the governor. Much time might have been loft, and the operation of the law, where the law was approved, fufpended longer than was needful. To prevent this inconvenience it was, that the governors were impowered to give their affent, even to these extraordinary bills, provided only that a clause were inserted, suspending the operation of the law till his Majefty's pleasure should be known. It would not, I believe, be easy to fix upon any period, where it would have been proper to have recalled an inftruction, firft fuggefted by reafons which were then conclufive, and which have ever fince been acquiring new force. The colonies indeed have thought otherwife. Twice at leaft have they addreffed the British House of Commons to intercede with the crown for the very purpofe of recalling this inftruction. How were their petitions received? The Journals fhall answer for us (vol. 22. p. 145). In the year 1733, in the 6th of George II. "A "A memorial of the council and reprefentatives of the province of the Maffachufet's-bay was prefented to the Houfe, and read; laying before the Houfe, the difficulties and diftreffes they laboured under, arifing from a royal inftruction, given to the governor of the faid province, in relation to the iffuing and difpofing of the public monies of the faid province; and moving the Houfe to allow their agent to be heard by counfel upon this affair; representing alfo the difficulties they were under from a royal instruction, given as aforefaid, reftraining the emiffion of bills of credit; and concluding with a petition, that the Houfe would take their cafe into confideration, and become interceffors for them with his Majefty, That he would be graciously pleafed to withdraw the said inftructions, as contrary to their charter, and tending, in their own nature, to diftrefs, if not ruin them." What faid the Houfe to this petition? Did they think that his Majefty affumed an unconftitution, or exercifed an improper power, in iffuing these inftructions? Let us hear the refolutions of the Houfe. "Refolved, That the complaint contained in this memorial and petition, is frivolous and groundlefs, an high infult upon his Majefty's government, and tending to fhake off the dependency of the faid colony upon this kingdom, to which by law and right they are and ought to be subject. [vol. 21. P. 145.] Refolved, That the faid memorial and petition be rejected." In what inftance, I would afk, during the prefent reign, has the British government expreffed itself in terms more ftrong or pointed? What act is there of the prefent reign, that afferts with great er energy the dependence of the colonies, or the fupreme authority of parliament? Were these refolutions of the Houfe extorted from them by furprise? wrung from them by a fudden fit of refentment? or adopted haftily? or was the fubfequent conduct of the colonial legiflature fuch as to call for a relaxation, in the ftrictness of thefe inftructions? or Confult the journals of the Commons: fee what paffed on the 24th of April 1740, juft feven years after the refolu. tions recited above. Read the following refolution: "Refolved, nemine contradicente, That an humble addrefs be prefented to his Majefty, to return his Majefty thanks, for the orders he hath already given; and humbly to defire him, that he will be graciously pleased to require, and command, the refpective governors of his colonies, and plantations, in America, punctually and effectually to observe his Majefty's royal inftructions." (vol. 23. P. 528.). And what were the inftructions to which the Commons allude? Thefe very inftructions; not to give affent to certain laws, "without a claufe were inserted in such act, declaring, that the fame fhall not take effect until the faid act fhall be approved by his Majefty." To what objection then can a measure all at once become liable, to which his Majefty's predeceffors were advised, after the matureft deliberation, by their privy council; which they have been fo repeatedly intreated never to abandon, never to relax, by the great council of the empire? The congrefs, I fuppofe, did not imagine, that any force or poignancy was added to the charge, by characteriling the laws fubject to the clause of fufonfion, by the titles of, "Laws wholefome and neceffary to the public good," " of immediate and preffing importance."For what do thefe epithets prove? Their own opinion of these laws: -- that, and nothing else. And who could entertain a moment's doubt of their opinion of them? No doubt, the laws, which, from a regard to the common interefts of the whole empire, were made fubject to the fufpending claufe, would appear "very wholefome and neceffary," of immediate and preffing importance," to the particular affemblies who paffed them; and that for the very fame reafons that to him whofe duty it is to watch over the interests of all his fubjects, they might appear unfalutary,and deltructive of the public good. And this will fuggeft an unanswerable reply to the second charge alledged in the article before us, "That to laws paffed with this claufe of fufpenfion, his Majefty has utterly neglected to attend." For to what does this charge amount? To this and no more: That thefe laws appearing to his Majefty to be repugnant, either to the particular interefts of the one particular province in question, or to the general good of his whole empire, he with-held his affent. Should a bill be prefented by the Lords and Commons of Great Britain to which La ART. III. He has refufed to pafs other laws for the accommodation of large diftricts of people, unless those people would relinquish the rights of reprefentation in the legislature; a right ineftimable to them, and formidable to ty rants only. ANS. Let the fenfe of this article be precifely expreffed; strip it of the indecent reflections which clofe it, and to what does it amount? To this only: That his majefty has not seen fit to confer the privilege of fending members to the provincial affemblies, on people forming, or meaning to form, certain communities in certain diftricts. The members of the congrefs indeed, whether through inadvertence or defign, have fo worded this article, as to make it convey an idea, which yet they dared not openly exprefs. They talk of relinquishing a right: but they will not pretend it to have been a condition propofed, that the perfons to be accommodated were to give up any right which they then actually enjoyed; the condition was, only, that they fhould not be invefted with a right which they did not then enjoy. If, as inhabitants of one diftrict or members of one commanity, they had already a right of fending a reprefentative, they were not called upon to relinquish that right: they were only told, that in becoming inhabitants of another district, members of another community, the right would not be conferred on them. Though, from the inaccuracy of the phrafe, it may feem to be infinuated, it is not meant, that his Majelly intended to diminish, but only that he refused to increase the actual number of reprefentatives. And is this too a proof of ufurpation? Is the exercife of this power, in general, to be deemed unconftitutional? In this particular inftance, did the refufal, of which the congress complains, originate with his prefent Majelty? or, in making it, did he only perfift in a plan, for wife reasons, adopted by his royal predeceffor? Let us firft confider, whether the exercife of this power, in general, can be deemed unconftitutional. In England, it has been a matter of debate, whether the King, by his fole authority, might, or might not, create, or revive, parliamentary boroughs But it never was yet pretended, that such boroughs could be either created, or revived, without his confent. Whether they be created, or revived, as in the cafe of Newark, by the fole act of the King; or, as in the cafes of the Welch counties, of Chefter, and of Durham, by the concurrent act of the King, Loids, and Commons; in either cafe, a voluntary act of the King is neceffary; in either cafe, therefore, the King may refufe to do that act. Thus ftands the cafe in England. How ftands it in America? In the original charters granted to the first adventurers in America, the idea of territorial reprefentatives could hardly find a place. The firft adventurers were confidered as a trading company; the firft fettlers as fervants acting under them t. The colonies were confidered, not fo much in the light of provinces, as of factories. For provifions for territorial reprefentatives, it is not here that we muft look: we must go on to fuccceding charters, when the colonies began to be confidered as provinces. The directions given in these charters, on this point, are various. In fome, not the number only, of reprefentatives to be chofen, is fixed; but the places too which are to have the right of chufing them. In others, thefe points appear ⚫ See Douglas's Hiftory of the cafes of controverted elections, vol. 1. p. 68. 69. 70. note (c), and the authorities there cited. ↑ See the examination of these charters in the remarks [xxxvii. 324 ] on the 13th parlia ment. In the formation of government in the Jerteys on the furrender of the charter in the year 1702; in the Grenades and other recent cftablifhments. to to have been originally left to the direction of the general assemblies*; that is, of the governor, council, and freemen. In moft of the proprietary governments, to the difcretion of the proprietor †. So far, however, is it from appearing, that the crown meant to give up, in America, that power which it retained and exercifed in England; the power, I mean, of preventing the number of reprefentatives from being increased, or the privilege of fending reprefentatives from being conferred, against, or even without its confent; that the crown has actually retained, and actually exercifed, the yet more important power, of increafing the number of reprefentatives, of conferring the privilege of fending reprefentatives by its own fole authority. The province of New Hampshire" affords us a remarkable proof. Towards the beginning of the year 1745 the Governor of New Hampshire had iffued a writ to the fheriff of the province, commanding him to make out precepts for the election of perfons to serve in the general affembly. Befide the towns to whom precepts had ufually been fent, the writ commanded, that precepts fhould likewife be sent to other townthips, newly erected. The precepts were fent, and members returned. But the houfe of reprefentatives refused to admit them. This refufal was reported to his Majefty. The report was examined with great deliberation: the opinion of the great law-officers, the prefent Lord Mansfield, and the late Sir Dudley Ry der, was taken; and the event was, that in the year 1748 the Governor was directed to diffolve that affembly; and, when another should be called, to iffue his Majefty's writ to the fheriff, commanding him to make out precepts to thefe new-erected towns, for the election of members to fit in the affembly.--And the rights of these members the Governor was commanded to fupport; -Becaufe (fay the inftructions) his Majefty may lawfully extend the privilege of fending reprefentatives to fuch towns as his Majefty fhall judge worthy thereof." After many prorogations, and alternate meffages between the Governor and Houfe of Representatives, these members were admitted. • Maffachufett's, Rhode island, &c. † Pennsylvania and Maryland. But thefe charters have undergone many alterations. See Douglas's Summary, vol. 2. p. 35. 36.73. 74. 75. If therefore the crown has retained the power of extending the privilege of fending reprefentatives to fuch towns as his Majesty shall think worthy thereof; can any reafon be affigned, why it should not retain the lefs important, less dangerous power, of preventing that privilege from being extended againft, or without his confent? I fay, lefs dangerous; because, though the former may, the latter cannot, be abused, to the purpose of acquiring unconftitutional powers. And could we, in defiance of the whole tenor of his Majesty's conduct, allow ourfelves to fufpect him of fuch a defign, we fhould expect to find him profufe in the exercise of the power of extending this privilege, rather than tenacious of the exercife of the power of reftraining it within its prefent bounds. Thus far as to the exercife of this power in general. As to the exercise of it in the particular inftance before us, the refufal of which the congrefs complains, did not, as they would have it underftood, originate with his prefent Majefty: in making it, he only perfifted in a plan, for wife reasons adopted by his royal predeceffor. By an original defect in the charter granted by K. William to the province of Maffachufet's-bay, the council was left more dependent on the House of Reprefentatives than was confiftent with the right balance of power. Not only were the members of it annually elected, they were even amoveable, by the House. In many cafes the Council and Houfe of Reprefentatives fit and vote together. The fuffrages are taken viritim; the number of the Council is limited to twenty-eight, that of the Representatives amounts to a hundred and fifty. It is therefore obvious, that the power of deciding in all thefe queftions is folely in the Reprefentatives. As if this were not enough, fome defigning men contrived to throw more weight into the popular scale, already preponderant, by erecting new, and by fubdividing large and well-regulated, into small and jangling townships. On all of thefe was the power conferred of fending reprefentatives; a power which they exercised, or declined, juft as it ferved the ends of party. Already did the number of reprefentatives in this fingle province exceed that in five of the moft confiderable provinces around it; already had many inconveniencies been felt by the intrufion of ignorant reprefentatives, who were chofen, and came, only to |