The Royal Disallowance. by Charles M

342 American Antiquarian Society. [Oct., THE ROYAL DISALLOWANCE. BY CHARLES M. ANDREWS The royal disallowance of colonial laws, when con- sidered in all its phases, becomes a subject of far too wide a scope to be dealt with in the brief space at my disposal. I propose, therefore, to limit my discussion to one phase only, that which concerned the authorities at home. The influence of the disallowance in the colonies themselves is an intricate and difficult question that can be answered satisfactorily only after a thorough study has been made of the history of each individual colony. In what I have to say, I shall treat briefly of the early history of the disallowance, of the procedure accompanying its exercise in England, and of the rules that the British authorities laid down for their own guidance. No adequate attempt has yet been made to define these rules or to study in any systematic way the policy based upon them. One reason for this neglect is, undoubtedly, the belief that British policy was a negligible factor in colonial history and may be ignored by the historian. As I consider this belief to be erroneous, I deem it only a matter of common honesty to find out what this policy was, how far it was applied in dealing with colonial legislation, and to what extent it was justified from the point of view of England's constitutional past and the demands of her imperial and commercial systems. The evidence does not lie on the surface, but must be searched for in parliamentary acts, governor's instructions, and royal disallowances. The royal disallowance has been commonly inter- preted as if it were an act of royal legislation, and the 1914.] The Royal Disallowance. 343 Privy Council itself defined it as "the negative which the crown has reserved to itself upon acts of legislation in the American colonies. " But it was not an act of legislation in the same sense that a royal veto of a parliamentary bill was an act of legislation. The latter was the exercise by the king of his right as a constituent member of the British parliament. In exercising this right the king acted alone, making no use of the Privy Council, for the Council had no place among the law-makers of England. The royal disallowance' was an executive rather than a legislative act, performed not by the king but by the Council as his executive agent. It was an exercise of the royal prerogative, an expression of the king's supreme authority in the enacting of laws by inferior law-making bodies, whose right to make laws at all rested on the king's will. The legislatures in the colonies were not parliaments, that is, from the legal point of view they were not in any sense comparable with the supreme law-making body in England. It is true that they frequently made this claim and constantly exercised powers that lay beyond the bounds of their legal right, but properly their powers were only those of a provincial assembly or, in the case of the corporate colonies, of a provincial court with the right to legis- late for the good government of the company or fellow- ship. Except where the king had bound himself by his charters, he had the right at all times to prevent these assemblies from "usurping authorities that were inconsistent with the peace and good government of the province." The royal disallowance was, therefore, not a veto but an act of regulation and control, in the same sense that a royal letter and instruction was an act of regulation. In fact, disallowance and instruction were synonymous, for both expressed in different forms the royal will. The Privy Council, which was the king's mouthpiece in the matter, frequently issued a new instruction instead of a disallowance; while in all the 344 American Antiquarian Society. [Oct., governors' instructions clauses were inserted that were dormant disallowances, in that they required the governors to refuse their assent to all measures of a certain class that might be passed by the provincial legislature. Thus the royal disallowance was but one of the means employed by the king, through the Privy Council, to confine the colonial legislatures within the constitutional bounds of their powers. The royal right was never defined and never denied, even by the colonies themselves, for the colonies were the king's colonies, such charters as they had came from him, their officials were his appointees, and all .orders and instructions ran in his name. They were never "parcel of the realm," but were possessions of the crown of Great Britain. The right of disallowance was exercised from earliest times". Laws .passed by the first assemblies in Ameri- ca, those of Virginia in 1619 and of Bermuda in 1620, were recognized as subject to the approval of their respective companies in England, and the laws of Bermuda were actually sent over for confirmation. The Massachusetts Bay Company in 1628-1629 instructed its Salem plantation to send over all laws and orders for examination by the company at home. In 1629, five years after the Virginia colony had been taken over by the crown. Governor Harvey in his petition for a charter took for granted the king's right to approve or disapprove of the laws passed in the colony, and in the royal reply he was instructed to see that all laws and orders were transmitted and such as were allowed were to be but temporary and "change- able at his Majesty's pleasure." In 1631 the bur- gesses of Virginia despatched the first collection of acts of a royal province ever sent to England. By 1638 the practice had become well established. I know of no law actually disallowed at this early period, but one was suspended in 1638 and ordered "to lie by" for further consideration. After 1660 the right was afi&rmed, and in 1663 the rule was laid down for 1914.] The Royal Disallowance. 345 Barbadoes that acts should be in force but one year unless confirmed; The rule was extended to two years in 1664 for Jamaica. One clause of a Barbadoes act was disallowed in that year, the first certain in- stance of a disallowance that I can discover. As far as the continental colonies are concerned, the first recorded disallowance is that of all the laws of Bacon's assembly in 1676, hardly a disallowance properly so- called as the assembly was deemed irregular. The routine of transmission had got fairly well fixed before the end of the seventeenth century. Maryland, Connecticut, and Rhode Island were not required by their charters to transmit their laws, though all did so to a greater or less extent. The Car- olinas and the Jerseys likewise sent over ho laws, until after they had become royal provinces. Massachu- setts was in the same class until 1684, but after 1691 regularly transmitted her laws, while Pennsylvania, though a proprietary colony, was required to do so from the beginning. Before the end of the colonial period was reached, every colony had had one or more laws disallowed; during the eighty-three years of her second charter, Massachusetts had forty-seven public laws and twelve private laws disallowed; while with other colonies the number was much greater. The machinery of transmission was very far from perfect, even among the royal colonies. Many laws were never sent over; others were never acted upon or were held so long that months and even years elapsed before a decision was reached. During the early period the English government was uncertain how to proceed. Before 1670 laws were acted upon by the Privy Council with the advice of its committee. In 1670 the special plantation council of that year was ordered to examine the laws of the colonies and if any were "found inconvenient or contrary to the laws" of England or to the "honour and justice" of the government they were to be im- mediately annulled. But the special councils ap- 346 American Antiquarian Society. [Oct., parently took no action in the matter, for no reports issued by them relating to colonial acts have been found, and in 1674 the Shaftesbury council was still debating "the best way for his Majesty to confirm the laws made by the plantations." In 1675 colonial business was again taken into the hands of the Privy Council and entrusted to its committee, the Lords of Trade, and then the procedure as finally adopted was introduced. Laws were sent from the colonies to both the Lords of Trade and the secretary of state, and by the former reported on to the Council, with or without the advice of the crown lawyers. The first reports recommending disallowance of acts regularly passed were in 1678, when certain acts of Jamaica, and others of Virginia, passed in February, 1677, to meet the situation raised by Bacon's Rebellion, were declared null and void. When fully developed the course of a law was some- what as follows. The Privy Council, to which after 1730 all laws were sent directly, handed over the laws to its committee. This committee was quite compe- tent to act alone, but generally referred the laws to the Board of Trade for report. In making up its report the board called upon a great variety of coun- sellors for advice: first, its own special solicitor, ap- pointed in 1718, or the regular law officers of the crown, who might and occasionally did reverse the opinion of the solicitor; then in special cases, other departments of government, the bishop of London, agents of the colony, ex-governors, or others familiar with colonial affairs.

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