Executive Power in the Colonial Era As Constitutional Precedent

Establishing and Losing Boundless Authority: Executive Power in the Colonial Era as Constitutional Precedent Weston McClain University of Oregon Spring 2019 I. Introduction Constitutional history does not begin and end with the 1789 United States Constitution. The modern United States inherited a complex legal tradition of common law and constitutionalism from both its colonial predecessors and from England. Many of the ideas and experiences that guided and inspired revolutionary-era leaders came from the colonial experience. The American government was originally a blank slate. Some believed that English rights should extend to the colonies.1 Others sought to establish more centralized governments in line with feudal ideas of sovereignty and royal prerogative. The result was a diverse set of experiments in human governance. Gubernatorial power, in particular, differed across the colonies. This difference was the result of the struggle and evolution of executive power in the colonial era. Early colonial governors held a great deal of power and exercised that power both in truly executive matters and in a combined set of legislative and judicial areas as well. The later colonial era is largely the story of ascendant “democratic” lower houses which ultimately contested and limited that executive power.2 This struggle is a part of the larger history of English constitutionalism and led directly to the founding fathers’ support for the balance of power. II. Historical Background To understand the political struggle in the colonies, it is important first to understand the larger English constitutional system. In the late Middle Ages and early modern era, English governance developed from an absolute monarchy into three main spheres—an executive sovereign, a judiciary, and a legislative branch in the form of Parliament. In 1748, Montesquieu defined these three types of power as inherent in any government, although he clarified that such powers were sometimes “unified in the same person.”3 In discussing the English constitution, Montesquieu moved between identifying judicial functions as a distinct “judiciary” or as merely as a separate part of the “executive, in regard to things that depend on the civil law.” 4 In reality, the judiciary was a partially independent body under some control of the crown. By the thirteenth century, the English viewed judges as “servants of the law first and the king afterwards.”5 Although never as controversial as the separation of legislative and executive powers, judicial independence slowly evolved during the Stuart era and English Civil War.6 The monarch, as the ultimate dispenser of justice in his 1 Jack P. Greene, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607-1788 (Athens: University of Georgia Press, 1986), 23. 2 Evarts Boutell Greene, The Provincial Governor in the English Colonies of North America (Cambridge, Massachusetts: Harvard University Press, 1898), 205. 3 Charles De Secondat Montesquieu, The Spirit of Laws (Edinburgh: A. Donaldson, 1768), 197-198; Montesquieu gave the examples of the Italian Republics and Turkey as states where such powers remained in a single individual. He contrasted these as inferior to the separated system of constitutional monarchies like England. 4 Ibid., 197-198. 5 Frederic W. Maitland and Francis C. Montague, A Sketch of English Legal History (New York: G. P. Putnam’s Sons, 1915), 83. 6 Joseph H. Smith. “An Independent Judiciary: The Colonial Background,” University of Pennsylvania Law Review 124 (1976): 1106, https://scholarship.law.upenn.edu/penn_law_review/vol124/iss5/2/. kingdom, originally had the right to remove judges who were not in his pleasure.7 In 1641, the king was limited only to remove justices for misbehavior.8 After the monarch removed several judges for political reasons, Parliament, in 1701, passed a law requiring that it, not the king, should determine whether judges mishandled their commissions.9 An independent English legislature goes back much further. Legislative limitations on the crown go back as far as Magna Carta in 1215.10 The English originally saw Parliament more as “the people” than as a specific branch of government, but by the colonial era, Parliament had become “powerful, fully sovereign, and ostensibly eternal.”11 Such distinct governmental branches did not exist across Europe. Instead, most countries in Europe were heavily centralized and their colonies reflected this absolutist way of thinking. Understanding governance in the British colonies requires knowledge of the context of the larger Atlantic world with its shared and differing ideas and experiences. The extent of executive and centralized authority varied widely across colonies and empires. Some empires had strictly defined ideas of the extent of executive authority and the encroachment of such powers into legislative and judicial areas. In the Spanish Empire, for example, governors were widely separated from legislative authority, though this was simply because all legislation came as top-down policy directly from Spain.12 British colonists tended to view the Spanish empire as autocratic. While mercantilist policies kept the British and Spanish colonies largely separate, they did come into increasing contact in the late colonial era. French colonial governance evolved within the larger framework of Bourbon absolutism. Legal pluralism, or numerous stratified government structures at different levels, manifested itself in the French colonies. The “metropolitan” or city-based leaders of New France often created “feudal enclaves” that fit within the stratified government.13 Councils, which were similar to English-style upper houses, came into existence alongside governors.14 Gubernatorial powers generally resembled those in the British colonies as French monarchs gave governors the rights “to distribute land, establish forts and other buildings, and to engage in trade relations with the native inhabitants.”15 With no 7 Smith, “An Independent Judiciary: The Colonial Background,” 1105-1106; Oxford Reference, s.v. “quamdiu se bene gesserint,” accessed November 28, 2018, http://www.oxfordreference.com/view/10.1093/oi/authority.20110 803100357561; The right to dispose of judges at pleasure was known in England as quam diu nobis placuerit and in America as durante bene placito. In contrast, quamdiu se bene gesserint only allowed governors to dispose of judges if they fell out of good behavior. Judges held judicial commissions, as the Latin translates “as long as he shall behave himself well.” This differs from durante bene placito, which literally translates as “during the pleasure of the grantor.” Although the change to “good behavior” intended to limit complete subjugation of judicial independence, governors could still claim a judge they disliked was acting against the law as a pretense for removal. 8 Smith, “An Independent Judiciary: The Colonial Background,” 1106-1107. 9 Smith, “An Independent Judiciary: The Colonial Background,” 1110. 10 Andrew G. I. Kilberg, “We the People: the Original Meaning of Popular Sovereignty,” Virginia Law Review 100, no. 5 (2014): 1070, https://www.jstore.org/stable/24362715. 11 Kilberg, “We the People: the Original Meaning of Popular Sovereignty,” 1070-1071. 12 Helen Miller Bailey, Latin America: The Development of Its Civilization (Englewood Cliffs, New Jersey: Prentice-Hall Inc., 1962) 152-154. 13 Lauren Benton and Richard J. Ross, "Empires and Legal Pluralism: Jurisdiction, Sovereignty, and Political Imagination in the Early Modern World," in Legal Pluralism and Empires, 1500-1850, ed. Lauren Benton and Richard J. Ross (New York: NYU Press, 2013) 8; Helen Dewar, "Litigating Empire: The Role of French Courts in Establishing Colonial Sovereignties," in Legal Pluralism and Empires, 1500-1850, ed. Lauren Benton and Richard J. Ross (New York: NYU Press, 2013), 57,60. 14 Alan Taylor, Colonial America: A Very Short Introduction (Oxford: Oxford University Press, 2013), 42-43. 15 Dewar, "Litigating Empire: The Role of French Courts in Establishing Colonial Sovereignties," 53. legislature, the main conflict in the French colonies was between the “metropolitan” governments and the monarch.16 Distinctions between French colonies were usually the result of differences in the character of governors who often had rival jurisdictions.17 The relative uniformity within the Spanish and French empires strikingly contrasted with the multiplicity of governing styles in British colonies. French Louisiana and French Acadia, for example, had very similar governments. In contrast, the governments of British Quebec and British Massachusetts differed greatly. French and Spanish governors received pay directly from the crown and therefore had “enormous power to enforce laws.”18 By the late colonial era, in most British colonies, the legislature held the power of the purse which allowed for legal battles. 19 After the Seven Years’ War, the British largely incorporated the French Colonies into their own empire.20 Since the inhabitants of conquered territories were not English citizens, the empire did not deem it necessary to confer English constitutional rights in such acquired colonies.21 As a result, such colonies as British Quebec lacked any representational system.22 Such regressive policies were successful in conquered colonies simply because the Catholic empires of France and Spain already held absolutist

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