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 governance styles.23 As a result, the people in Quebec had no expectation of legislative rights. In contrast, English colonies had diverse governance structures. By the late colonial era, miniature Westminster models developed in nearly all of the colonies. Because of England’s limited resources, the English usually founded their settlements as proprietary colonies with council leadership rather than as royal colonies.24 The earliest British colony in America, as laid out in the First Charter of Virginia, received indirect governance through the Council of ​ ​ Virginia. This was an ineffective council located in England, some 3,700 miles away from Virginia.25 Governors quickly became an important part of colonial governments. In both proprietary colonies and royal colonies, governors were “quasi-feudal” leaders acting on behalf

16 Dewar, "Litigating Empire: The Role of French Courts in Establishing Colonial Sovereignties," 55. 17 Dewar, "Litigating Empire: The Role of French Courts in Establishing Colonial Sovereignties," 69. 18 Bailey, Latin America: The Development of Its Civilization, 152-154. ​ ​ 19 “Money Bills to Follow Parliamentary Style for Barbados, Bermuda, Jamaica, Leeward Islands, Maryland, New Hampshire, New Jersey, New York, South Carolina and Virginia,” in Royal Instructions to Colonial Governors ​ 1670-1776, ed. Leonard Woods Labaree (New York: Octagon Books, 1967), 170. ​ 20 Taylor, Colonial America: A Very Short Introduction, 111-112. ​ ​ 21 Greene, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and ​ the United States, 23-24; Determining who should receive English rights led to contention at first. The English did ​ not bestow full rights on Ireland because it was a conquered land. Colonies in America fit a new definition because they had been “vacant” lands settled only by Englishmen. Of course, this unenlightened way of thinking neglected to consider the fact that numerous tribes of Native Americans already possessed this land. In 1670, Chief Justice John Vaughan ruled in Craw vs. Ramsey that colonies acquired by conquest and colonization should be treated ​ ​ differently. Dutton vs. Howell further confirmed this idea by establishing that Englishmen who colonized ​ ​ “uninhabited” lands ought to hold English rights as “their birthright.” 22 David Milobar, “Quebec Reform, the British Constitution and the Atlantic Empire: 1775-1775,” in Parliament ​ and the Atlantic Empire, ed. Philip Lawson (Edinburgh: Edinburgh University Press, 1995), 67. ​ 23 Alan Taylor, Colonial America: A Very Short Introduction (Oxford: Oxford University Press, 2013), 111-112. ​ ​ 24 Milobar, “Quebec Reform, the British Constitution and the Atlantic Empire: 1775-1775,” 65-67; Greene, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 23-24. ​ 25 “The First Charter of Virginia, April 10, 1606,” The Avalon Project, Yale Law School, accessed November 28, ​ ​ 2018, http://avalon.law.yale.edu/17th_century/va01.asp.

of either the company or the monarch.26 In August of 1624, King James II issued a writ of quo ​ warranto, annulled the Proprietary Charter of Virginia, and in the following year, King Charles I ​ established Virginia as a royal colony.27 Monarchs used writs of quo warranto to dissolve ​ corporate charters. This writ required that a colony submit its charter for examination.28 Dissolution could result either from an illegal charter or misadministration.29 After declaring the existing charters invalid, King James needed to only resume the prerogatives which his predecessors had surrendered to proprietors.30 The king gave Joseph Dudley the first royal commission to rule Virginia on his behalf.31 English kings had already established their right to rule all English citizens after conflicts with “local privilege and feudal anarchy” in the Middle Ages.32 Within two years of his accession, King James II brought quo warranto proceedings ​ against all continental proprietary and charter governments except for Pennsylvania as well as many Caribbean colonies.33 Such changes affected both the mainland colonies and those which remained loyal during the revolutionary war.34 In both types of colonies, governors served as the executive and also as the representative of the crown or company.35 From the beginning, the extent of a governor’s power was not a settled issue.36 Britain had long possessed a larger constitution formed of a diverse series of precedents and individual laws—such as the Magna Carta—that addressed specific rights and issues. The British New World colonies were among the first modern states to have specific written charters and constitutions. While colonists and leaders used such written documents, their political views of the extent and limits of power were parts of a larger and evolving story of English constitutionalism. No one was sure exactly which rights extended to Britons residing in the New World.37 From the Middle Ages on, the English spoke of their “constitution,” but “English political and legal thinkers had difficulty defining precisely what the English constitution was.”38 Colonists wanted “the same “liberties and privileges” belonging to free, native-born Englishmen.”39 In particular, English colonists hoped for the “basic protections, confirmed by Magna Carta and the Petition of Right, against imprisonment, loss of life, or

26 “The First Charter of Virginia, April 10, 1606,” The Avalon Project, Yale Law School, accessed November 28, ​ ​ 2018, http://avalon.law.yale.edu/17th_century/va01.asp. 27 Greene, The Provincial Governor in the English Colonies of North America, 3; Philip S. Haffenden, "The Crown ​ ​ ​ ​ and the Colonial Charters, 1675-1688: Part II," The William and Mary Quarterly 15, no. 4 (1958): 453-54, ​ ​ www.jstor.org/stable/2936901. 28 Haffenden, "The Crown and the Colonial Charters, 1675-1688: Part II," 453-54. 29 Mary Lou Lustig, The Imperial Executive in America: Sir Edmund Andros, 1637-1714, (Madison [N.J.]: Fairleigh ​ ​ Dickinson University Press, 2002), 101. 30 Greene, The Provincial Governor in the English Colonies of North America, 15. ​ ​ 31 Greene, The Provincial Governor in the English Colonies of North America, 16. ​ ​ 32 Greene, The Provincial Governor in the English Colonies of North America, 18-19. ​ ​ 33 Greene, The Provincial Governor in the English Colonies of North America, 17; Haffenden, "The Crown and the ​ ​ Colonial Charters, 1675-1688: Part II," 457. 34 Haffenden, "The Crown and the Colonial Charters, 1675-1688: Part II." 457. 35 Greene, The Provincial Governor in the English Colonies of North America, 10. ​ ​ ​ ​ 36 Greene, The Provincial Governor in the English Colonies of North America, 31. ​ ​ ​ ​ 37 Greene, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and ​ the United States, 23. ​ 38 Jack P. Greene, “The Origins of American Constitutionalism,” in The United States Constitution, ed. A. E. Dick ​ ​ Howard (Washington: Smithsonian Institution Press, 1987), 23. 39 Jeffrey K. Sayer, “English Law and the “Rights of Persons,” in Order and Civility in the Early Modern ​ Chesapeake, ed. Debra Meyers and Melanie Perreault (Lanham: Lexington Books, 2014), 74. ​

dispossession of property without due process of law and exemption from taxation without consent.”40 Most English charters from the Caribbean to the northern Atlantic seaboard adopted similar language, and one common definition of gubernatorial power claimed the right to “punish, pardon, govern, and rule.”41 What exactly did this mean? This description seemed much like the role of the king in England, but no one was sure whether the limitations extant in Britain extended to the New World. It should, therefore, be of no surprise that early governors attempted to emulate the most absolutist Stuart Monarchs.42 Governors sought power for themselves, their socio-economic class, and the crown.43 At the same time, early America contained some of the first representative bodies in the modern world. A power struggle was inevitable.44 Did the extent of gubernatorial power remain in the executive realm or did it extend to legislative and judicial affairs? The definition and evolution of the executive’s role differed between colonies.

III. Constitution Building in the Colonial Era

Many historians view constitutional history as merely a post-independence struggle; therefore, no clear synthesis exists that considers colonial-era gubernatorial power as constitutional precedent. Numerous books illustrate the lives and political posturing of colonial governors, but the greater portion are either biographical texts about specific governors or encyclopedic studies.45 Historians have documented the lack of judicial independence in the colonial era as well, but the best analysis has failed to compare this to the development of an independent legislative branch.46 Many previous studies show how colonists sought to incorporate parts of the larger English law into their governance but most of these studies focus more on the incorporation of civil law rather than constitutional law.47 Research that covers this power struggle generally predates the new international focus on the broader Atlantic world and

40 Greene, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and ​ the United States, 25. ​ 41 Greene, The Provincial Governor in the English Colonies of North America, 32. ​ ​ ​ ​ 42 Michael Watson, “The British West Indian Legislatures in the Seventeenth and Eighteenth Centuries: An Historiographical Introduction,” in Parliament and the Atlantic Empire, ed. Philip Lawson (Edinburgh: Edinburgh ​ ​ University Press, 1995), 91. 43 Greene, The Provincial Governor in the English Colonies of North America, 204; Carla Gardina Pestana, "The ​ ​ Problem of Land, Status, and Authority: How Early English Governors Negotiated the Atlantic World," The New ​ England Quarterly 78, no. 4 (2005): 523-526. http://www.jstor.org.libproxy.uoregon.edu/stable/30045579. ​ 44 Bernard Bailyn, The Origins of American Politics (New York: Alfred A. Knopf, 1967), 106. ​ ​ 45 A number of encyclopedic works exist such as John Raimo, Biographical Directory of American Colonial and ​ Revolutionary Governors, 1607-1789 (Westport: Meckler Books, 1980; There are also many books on individual ​ governors, such as Lustig, The Imperial Executive in America: Sir Edmund Andros, 1637-1714. One book that ​ ​ looks at governors and their power more broadly is Greene, The Provincial Governor in the English Colonies of ​ North America. Greene takes a comprehensive look at colonial governors and includes constitutional infringement ​ and precedent, but only as part of an older text covering all details of colonial governors. Because Greene provides comprehensive information about all aspects of gubernatorial power, his book provides a less tailored approach to specific constitutional issues. 46 Smith, “An Independent Judiciary: The Colonial Background.” 47 Warren M. Billings and Brent Tarter, “Esteemed Bookes of Lawe” and the Legal Culture of Early Virginia ​ (Charlottesville, University of Virginia Press, 2017); Bookes of Lawe is a key example of a book that focuses on ​ ​ legal culture, common law, and jurisprudence rather than constitutional theory and practice in colonial government.

therefore neglects the loyal colonies in Canada and the Caribbean.48 This is an improper teleological approach because it views the colonial past only in light of the early republic.49 In addition to looking at all of the colonies, it is essential to provide the backdrop of English legal history and a brief comparison with governance in other empire’s colonies. Newer studies provide information about similar power struggles that occurred in the West Indies and Canada, but neglect to synthesize this into the topical issue of executive overreach.50 Some historians have discussed aspects of the balance of power struggle, but these studies usually only touch on a short era, aspect, or individual.51

i. The Importance of the Executive

Some historians recognize the implications of the colonial era’s power structure on constitutional development, but they rarely provide research into this. While some historians have shown the encroachment of governors into legislative or judicial territory, it is rare that they see this as a part of a larger constitutional struggle that occurred in both England and America. A number of historians argue that lower houses eventually came to great power, but the reasons for their rise and the fall of governors are rarely considered. A synthesis of the best research from numerous sources shows that the fall of gubernatorial power came primarily as a result of conflict with legislatures. Bringing Latin American governance into such a study is necessary because it outlines the absolutist despotism that British governors aimed to emulate. Previous researchers have not underscored this fact. This is also important because Britain eventually governed large parts of Latin America and retained anti-democratic governing styles in these regions. No previous work attempts to understand colonial-era executive reach into legislative and judicial matters as constitutional precedent while incorporating analysis of the larger Atlantic world, socio-economic factors, and English precedent.

48 Main, The Upper House in Revolutionary America, 1763-1788 (Madison: University of Wisconsin Press, 1967); ​ ​ Main’s book is an excellent example of how most historians in earlier eras neglected the loyal colonies. He describes the roles and political posturing of upper houses both in relation to governors and lower houses of assembly. Nevertheless, he completely neglects to include loyal colonies both in anecdotal explanations and in numerical analyses. Historians that fail to account for loyal colonies marginalize widespread views. Loyal colonies should also be of great importance to any book on upper houses. 49 Watson, “The British West Indian legislatures in the Seventeenth and Eighteenth Centuries: An Historiographical Introduction,” 89; Watson argues that this teleological style extends into the analysis of the successes and failures of Caribbean governance. 50 Lawson, Parliament and the Atlantic Empire; Many modern historians liberate their studies from the narrow ​ ​ confines of nationalistic approaches to history. In his book, Lawson links the colonies to the larger Atlantic world with a focus on the Caribbean and Canada. He briefly discusses governance, but provides no real analysis of constitutional theory. 51 Haffenden, "The Crown and the Colonial Charters, 1675-1688: Part II;" Main, The Upper House in Revolutionary ​ America, 1763-1788; Robert J. Dinkin, Voting in Provincial America: A Study of Elections in the Thirteen Colonies, ​ ​ 1689-1776 (Westport: Greenwood Press, 1977); Pestana, “The Problem of Land, Status, and Authority;” Haffenden ​ mostly emphasizes the beginning of the balance of power struggle. A number of previous works similarly limit analysis to a short era. Other historians touch on the broader topic of executive power in the colonies as part of larger studies on closely related topics. This can be seen in such works as Main’s The Upper House in ​ Revolutionary America, which focuses on upper houses and Dinkin’s Voting in Provincial America, which focuses ​ ​ ​ ​ ​ ​ ​ ​ ​ on electoral politics of the era. Finally, some historians, such as Pestana, focus on only a part of the struggle, such as the socio-economic motivations and disparities that underlay gubernatorial overreach.

New research into the gubernatorial power struggle in the colonial era is necessary for a few key reasons. Constitutional development in America is a story older than the United States Constitution, and it is necessary to link colonial governance to the broader constitutional struggle in the Atlantic world. 52 In summary, this paper synthesizes new and old research to understand how the role of governors evolved across the diverse British American colonies in the context of the Atlantic world.

ii. Examples of Gubernatorial Overreach

Before looking at the encroachments of executive authority, it is important to understand the roles of governors in the colonies. Overall, governors held responsibilities similar to English kings. Governors had the right to establish ports, markets, and fairs and to incorporate towns and cities.53 They held the right to pardon, except for treason and felony, and to appoint judges.54 Governors held the authority to negotiate with Native Americans, lead their cabinet, and decide on ecclesiastical matters. Their consent was required for legislation and they had the right to sit with the council, an upper house composed of their appointees.55 They also held the powers of prorogation and dissolution of legislatures.56 Colonial constitutions generally had vague rules. On the extremes, Rhode Island and Connecticut adopted largely democratic models while full royal governance was common in some southern and middle colonies as well as in the West Indies.57 Conquered colonies generally received the most oppressive governance with no semblance of constitutional rights. Most colonies fell somewhere in between these extremes, presenting a question of how much authority governors should possess. No common definition of the separation of powers existed.58 Across nearly all of the colonies, governors controlled the judicial branch and sometimes violated basic rights.59 Early governors also tended to dominate the legislative branch. One notably centralized authority was the governor of New York. Early governors in that colony held “the right to legislation, with or without council.”60 Colonists generally saw the governorship as a vice-regal position that inherited the same limits as the crown.61 Nevertheless, governors both for their own power and on behalf of the crown worked tirelessly to extend their power into all governmental affairs. The Caribbean colonies, with their extensive wealth from sugar, tended to

52 Philip Lawson, Parliament and the Atlantic Empire (Edinburgh: Edinburgh University Press for the Parliamentary ​ ​ History Yearbook Trust, 1995), 1. 53 Greene, The Provincial Governor in the English Colonies of North America, 93. ​ ​ 54 Ibid. 55 “Style and Form of Enacting Laws for Bahamas, Barbados, Bermuda, Georgia, Grenada, Jamaica, Leeward Islands, Maryland, Massachusetts, New England, New Hampshire, New Jersey, New York, North Carolina, Nova Scotia, South Carolina and Virginia,” in Royal Instructions to Colonial Governors 1670-1776, ed. Leonard Woods ​ ​ Labaree (New York: Octagon Books, 1967), 126-127. 56 “Assembly Not to Sit Longer Than Necessary for Virginia,” in Royal Instructions to Colonial Governors ​ 1670-1776, ed. Leonard Woods Labaree (New York: Octagon Books, 1967), 93. ​ 57 Greene, The Provincial Governor in the English Colonies of North America, 5. ​ ​ ​ ​ 58 Robert J. Dinkin, Voting in Provincial America: A Study of Elections in the Thirteen Colonies, 1689-1776 ​ (Wesport: Greenwood Press, 1977), 5. 59 Pestana, “The Problem of Land, Status, and Authority,” 523-526. 60 Jackson Turner Main, The Upper House in Revolutionary America, 1763-1788 (Madison: University of Wisconsin ​ ​ Press, 1967), 6; Greene, The Provincial Governor in the English Colonies of North America, 35, 114. ​ ​ ​ ​ 61 Greene, The Provincial Governor in the English Colonies of North America, 34. ​ ​ ​ ​

be an experimental ground for more Stuart-like, oppressive policies.62 The crown also pressured governors to exert as much royal influence as possible in other colonies. In a notable case of royal control, the Stuart monarchs consolidated numerous northeastern colonies to create a more centralized, larger colony in which they could better exert hegemony.63 The crown had similar intentions for unification of Virginia and Maryland, but with the Glorious Revolution came an end to the James II and his extreme goals.64 Who had the key role in the balance of power in the early colonies? Lord Delaware received the first gubernatorial commission to govern Virginia in 1610. This commission united executive, judicial, and legislative powers under his control.65 Although later commissions generally provided for more separated powers, governors unceasingly sought to extend their domination as far as possible into legislation and the courts. Colonial American governors encroached most widely into judicial areas. Such overreach was easy considering the vague intent and limits of gubernatorial power. The English saw the king as “the fountain of justice and general conservator of the peace of the kingdom.”66 As the viceroys of the king in the colonies, governors attempted to utilize this idea as a precedent for judicial power. The crown commissioned governors to “constitute and appoint courts of judicature and justice.”67 Colonial governors appointed judicial officers much as the king did in England.68 Governors also extended their reach by eliminating those judges that they disliked.69 The limits of this power varied across colonies. In Jamaica, governors powerfully extended their hold on the judicial branch. In 1751, the assembly there passed an act requiring that judges could only serve under “good behavior.”70 The governor had the power to determine, in consultation with his council, the definition of such “good behavior.”71 Such policies helped governors to retain a dominant position over potentially uncooperative courts. Governors’ roles in the judicial branch, however, were not limited to the erection of courts and appointments thereto. Rather, governors were a part of the judicial system itself. Governors and their councils commonly formed the highest

62 Main, The Upper House in Revolutionary America, 1763-1788, 4. ​ ​ 63 Haffenden, "The Crown and the Colonial Charters, 1675-1688: Part II," 456-457. 64 Haffenden, "The Crown and the Colonial Charters, 1675-1688: Part II," 464. 65 Greene, The Provincial Governor in the English Colonies of North America, 34. ​ ​ ​ ​ 66 William Blackstone, Commentaries of the Laws of England: A Facsimile of the First Edition of 1765-1769 ​ (Chicago: University of Chicago Press, 1979), 199. 67 “Creation of Courts in New Provinces for East Florida, Grenada, Quebec, and West Florida” (1763), in Royal ​ ​ ​ Instructions to Colonial Governors 1670-177, ed. Leonard Woods Labaree (New York: Octagon Books, 1967), ​ 295-296. These charters include very specific language stating that governors “are authorized and empowered, with the advice and consent of our council, to constitute and appoint courts of judicature and justice.” In contrast, the crown gave most colonial governors a more vague set of implied powers to set up courts. This can be seen in “Account of Judicial Organization to be Sent for Bahamas, Barbados, Bermuda, Grenada, Jamaica, Leeward islands, Maryland, Massachusetts, New England, New Hampshire, New Jersey, New York, North Carolina, Nova Scotia, South Carolina, and Virginia,” in Royal Instructions to Colonial governors 1670-1776, ed. Leonard Woods Labaree ​ ​ (New York: Octagon Books, 1967), 296-297. 68 “Charter of Connecticut” (1662), in The Federal and State Constitutions, Colonial Charters, and Other Organic ​ Laws of the United States, ed. Ben Perley Poore (Washington: Government Printing Press, 1878), 255. ​ 69 “Judges Commissions During Pleasure Only for Bahamas, Bermuda, Georgia, Jamaica, leeward Islands, New Hampshire, New Jersey, New York, North Carolina, Nova Scotia, South Carolina, Virginia,” in Royal Instructions ​ to Colonial Governors 1670-1776, ed. Leonard Woods Labaree (New York: Octagon Books, 1967), 367-368. ​ 70 Joseph H. Smith, “An Independent Judiciary: The Colonial Background,” 1117-1118. 71 Ibid., 1114.

courts of appeals in each province.72 This is a further demonstration that there was “little scientific definition” of the separation of powers.73 It should come as no surprise that such a situation was ripe for abuse. Governors packed lower courts with their allies. When the courts did not serve justice, appellants could only petition to the governor who had packed the courts in the first place.

a. Corruption as a Result of Concentrated Executive Power in the Colonies Corruption and injustice resulted. One notable example is the case of Nicholas Bayard of New York. Bayard had served as an alderman, or elected member of the municipal council, in the city of New York.74 In 1702, the lieutenant governor brought charges against Bayard for criticizing the governor. A packed court tried Bayard and found him guilty. After losing his case in the lower courts, he appealed to the governor and council. His defense argued that “neither the address or petition itself, or any matter therein contained is criminal and illegal.”75 Furthermore, his defense complained that the appellate council refused “to produce the copies” of any “offense against the law, for which the petitioners may legally be committed.”76 The governor’s esquire and lieutenant governor, John Nanfan, in turn, argued that the law must prosecute anyone who endeavored to “disturb the peace, good, and quiet of this their majesties’ government, as it is now established.”77 Nicholas Bayard was said to have “appeared by the oaths of several persons examined before us in council, by conspiracy” to have attempted a “manifest disturbance of the peace of the same.”78 This disturbance was the propagation of “scandalous libels, whereby they have endeavored to render the past and present administration, vile and cheap in the eyes of the people.”79 Under this corrupt judicial system, the governor and his appointed council exacted revenge and found Bayard guilty.80 The authorities then punished Bayard by drawing and quartering him.81

Such injustice inevitably resulted from a broken system that allowed governors near-total domination of the judicial branch. On the island colony of Montserrat, Governor Osborne

72 “Appeals to Governor and Council and to Privy Council for Bahamas, Barbados, Dominica, East Florida, Georgia, Grenada, Jamaica, Leeward Islands, New Hampshire, New Jersey, New York, North Carolina, Nova Scotia, Quebec, St. Vincent, South Carolina, Virginia, and West Florida,” in Royal Instructions to Colonial Governors 1670-177, ed. ​ ​ Leonard Woods Labaree (New York: Octagon Books, 1967), 325-327; This can also be seen in “Appeals to Governor and Council Alone for Jamaica and Virginia,” in Royal Instructions to Colonial Governors 1670-177, ed. ​ ​ Leonard Woods Labaree (New York: Octagon Books, 1967), 318. 73 Greene, The Provincial Governor in the English Colonies of North America, 140. ​ ​ 74 The Trial of Colonel Nicholas Bayard, in the Province of New York, for High-Treason: 14 William III. (1702), in ​ ​ A complete collection of state trials and proceedings for high treason and other crimes and misdemeanors from the earliest period to the year 1783, ed. By T. B. Howell (London: Longman, Hurst, Rees, Orme and Brown, 1816; ​ Hathitrust), 471. https://babel.hathitrust.org/cgi/pt?id=nyp.33433067404859;view=1up;seq=250; Merriam-Webster’s Online Dictionary, s.v. “alderman,” accessed November 28, 2018, ​ https://www.merriam-webster.com/dictionary/alderman. 75 The Trial of Colonel Nicholas Bayard, 473. ​ ​ 76 Ibid. ​ 77 Ibid. ​ 78 The Trial of Colonel Nicholas Bayard, 474. ​ ​ 79 Ibid. ​ 80 Greene, The Provincial Governor in the English Colonies of North America, 143. ​ ​ ​ ​ 81 Ibid. ​

similarly packed courts.82 Beyond exacting revenge, Governor Osborne used his judicial power to enrich himself. In one case, his courts tried and executed a Mr. Waad. Governor Osborne then simply seized Waad’s property to enrich himself.83 The same governor, with no judicial oversight to stop him, also seized the lands of a wealthy widow.84 Such examples demonstrate the danger that existed when such diverse judicial powers existed in a single head. Using these methods, colonial governors came to be the dominant power in judicial areas, thereby solidifying their overall control of colonial governance. Such encroachments also extended into legislative areas.

IV. Executive and Legislative Overlap in the Colonial Era In the early period after colonization, colonial governors contested legal battles for the right to legislate—that is “to make or enact laws”.85 Just as English kings sought to extend their power and counter that of Parliament, so too did governors work to extend their power into this sphere. In England, kings held limited legislative power as a result of the centuries-long struggle between Parliament and the crown. The government of European-colonized America was largely a blank slate at first. Subjects had little ability to appeal to England and there was no clear delineation of which constitutional rights extended into the colonies. Kings and their gubernatorial viceroys worked to exert their power and diminish representative democracy. The crown clearly envisioned a strong role in this area as it required governors to oversee the creation of “good and wholesome laws.”86 The last major colonial governor to hold complete legislative powers was Edmund Andros who governed the Dominion of New England.87 This was a short-lived consolidated colony designed to extend centralizing Stuart rule in the colonies. The power of the despotic and intolerant Andros depended upon the stability of the centralized restored Stuart regime in England. The Glorious Revolution brought both a new monarch and an end to such oppressive measures in the colonies. Governors, nevertheless, exerted their hegemony over the legislative realm. At the close of the colonial era, Governor Thomas Hutchinson of Massachusetts outlined the commonplace view of late colonial governors when he spoke of how the legislature was “a subordinate Power in Government which, whilst it keeps within its Limits, is not subject to the Controul [sic] of the supreme Power.”88 Even at the end of ​ ​ the colonial era, governors argued that they held the superior position in government. Nevertheless, they recognized the powers of an ascendant and often domineering legislature. Early governors often had the right to make laws. The “Charter of Massachusetts Bay” gave governors the right to make all necessary rules.89 In the “Grant of the Province of Maine”, ​

82 Pestana, “The Problem of Land, Status, and Authority,” 523-526. 83 Ibid. ​ 84 Pestana, “The Problem of Land, Status, and Authority,” 529. 85 Merriam-Webster’s Online Dictionary, s.v. “legislate,” accessed November 28, 2018, https://www.merriam-webster.com/dictionary/legislate. 86 “Power to Summon Assemblies for Leeward Islands,” in Royal Instructions to Colonial Governors 1670-1776, ed. ​ ​ Leonard Woods Labaree (New York: Octagon Books, 1967), 90. 87 Greene, The Provincial Governor in the English Colonies of North America, 39. ​ ​ ​ ​ 88 Kilberg, “We the People: the Original Meaning of Popular Sovereignty,” 1071. 89 “Charter of Massachusetts Bay, 1691,” The Avalon Project, Yale Law School, accessed December 2, 2018, ​ ​ http://avalon.law.yale.edu/17th_century/mass07.asp.

the king gave the governor full authority in making and executing law.90 Although the governor was required to only pass laws “in accord with the laws of England,” he could suspend them at will for martial law.91 By the end of the colonial era, the trend had shifted and only conquered colonies lacked representative legislatures. Because the French empire had previously governed Quebec with an absolutist hand, this colony received no legislature under its new British government.92 In English-settled colonies, colonists demanded representative assemblies in accordance with English constitutional principles. As a result, such outright lawmaking by governors was atypical by the end of the colonial era. In 1678 the crown, along with the governor of Jamaica, tried to force Poyning’s law onto the colony.93 The English had already dictated this oppressive law to Ireland. Poyning’s law terminated the right of parliament and representation until England itself annexed the colony.94 Unable to abolish colonial legislatures, governors sought to control and subvert them instead. Across the colonies, governors dominated legislative affairs by appointing and heading the upper house as well as by appointing loyal lower house members to simultaneously hold executive and cabinet positions. Governors held a few demarcated constitutional roles in legislation. In addition to the right to veto legislation, governors had the right to sit in upper houses.95 Most British charters in both the mainland and West Indies separated legislatures in a bicameral fashion into two distinct houses.96 The lower house, whether called the house of delegates, or burgesses, was generally representative, albeit of a narrow class of citizens.97 Upper houses, or councils, were composed of appointed members who represented a far narrower, elitist group. Counsellors served as natural allies for governors and the crown.98 This natural alliance between the governing executive and upper house also existed in England, where the House of Lords was often the representative of the monarch.99 Some more democratic colonies, such as Massachusetts, elected councilors who could check the power of governors, but in most colonies, they simply served as

90 “Grant of the Province of Maine, 1639,” The Avalon Project, Yale Law School, accessed December 2, 2018, ​ ​ http://avalon.law.yale.edu/17th_century/me02.asp. 91 Ibid. ​ 92 “Great Britain: Parliament – The Quebec Act, October 7, 1774,” The Avalon Project, Yale Law School, accessed ​ ​ December 2, 2018, http://avalon.law.yale.edu/18th_century/quebec_act_1774.asp. 93 Lawson, 92-95; “Poynings’ Method for Jamaica and Virginia Legislation for Jamaica and Virginia,” in Royal ​ Instructions to Colonial Governors 1670-1776, ed. Leonard Woods Labaree (New York: Octagon Books, 1967), ​ 125. 94 Ronald V. Sires "Government In The British West Indies: An Historical Outline." Social and Economic Studies 6, ​ ​ no. 2 (1957): 112, http://www.jstor.org.libproxy.uoregon.edu/stable/27851098. 95 Greene, The Provincial Governor in the English Colonies of North America, 41, 159. ​ ​ 96 “Style and Form of Enacting Laws for Bahamas, Barbados, Bermuda, Georgia, Grenada, Jamaica, Leeward Islands, Maryland, Massachusetts, New England, New Hampshire, New Jersey, New York, North Carolina, Nova Scotia, South Carolina and Virginia,” 126-127. 97 Jack P. Greene, “The Role of Lower Houses of Assembly in Eighteenth-Century Politics,” in Essays in American ​ Colonial History, ed. Paul Goodman (New York: Holt, Rinehart and Winston, 1967), 433. Although somewhat ​ representative, lower houses predominantly contained members of the wealthy new colonial elite that sought to extend their own vested interests. 98 “Repair to Province and Summon Council for Bahamas, Barbados, Bermuda, East Florida, Georgia, Jamaica, Maryland , Massachusetts, New England, New Hampshire, New Jersey, New York, North Carolina, Nova Scotia, Pennsylvania, South Carolina, and Virginia,” in Royal Instructions to Colonial Governors 1670-1776, ed. Leonard ​ ​ Woods Labaree (New York: Octagon Books, 1967), 15. This text illustrates how monarchs called the upper house “our council.” This language represented the fact that the council was a natural ally. 99 G. B. Roberts, The Functions of an English Second Chamber (London: Allen & Unwin, 1926), 12. ​ ​

an instrument of gubernatorial power.100 In South Carolina, only one member of the council owned less than 1,000 acres and members on average owned around 5,000 acres.101 The fifteen members of this council also owned more than 1,200 slaves.102 Few members were new to wealth, or noveaux riches, and the majority were English-born aristocrats heavily invested in ​ ​ mercantile wealth.103 Both the council members and governor remained stuck in a positive feedback loop, or vicious cycle, in which wealth begat more power which in turn led to yet more wealth.104 In reality, both the upper and lower houses “represented and defended” property, but the upper house spoke for a narrower set of interests.105 Governors nominated or appointed councilmembers, cementing their natural economic alliance.106 When meeting together, the Governor was supposed to hold the position of primus inter pares or “first among equals”, but in ​ reality, governors usually simply manipulated and used counselors.107 In addition to these constitutional methods of gaining power, governors also reached beyond such well-accepted roles to exert hegemony over legislatures. Governors extended great subversive control through the patronage system.108 As the head of the executive branch, governors could give or sell offices away. While this often led to personal enrichment, governors also used this approach to manipulate legislatures.109 By offering titles and salaries to legislators, governors severely compromised the independence of the legislature.110 Legislators that held executive positions formed pro-governor factions which were the earliest political parties in British America.111 This corrupt system also existed in Britain, where the King appointed Members of Parliament to hold executive roles. After Britain in 1716 banned “ordinary-keepers,” or government workers from sitting in parliament, a number of colonial legislatures moved to stop this practice.112 Governors also tried to determine the elected membership of the legislature. In an early case of manipulating electoral borders, Governor Wentworth of New Hampshire attempted to create electoral districts that favored his own

100 Robert E. Brown, Middle Class Democracy and the Revolution in Massachusetts, 1691-1780 (New York: Russell ​ ​ & Russell), 62. 101 Main, The Upper House in Revolutionary America, 1763-1788, 7. ​ ​ 102 Ibid., 6-7. ​ ​ 103 Ibid., 231. ​ ​ 104 Pestana, “The Problem of Land, Status, and Authority,” 516-519. 105 George Athan Billias, Law and Authority in Colonial America (New York: Dover, 1970), 128. ​ ​ 106 “Creation of Councils in new Provinces for East Florida, Grenada, Quebec and West Florida,” in Royal ​ Instructions to Colonial Governors 1670-1776, ed. Leonard Woods Labaree (New York: Octagon Books, 1967), 19; ​ Governors in these colonies had the right to appoint council members directly. Note that these were all colonies that Britain conquered and took from Spain and France. In most colonies, governors had to nominate members for final decision by the crown; “Governor to Make Nominations For Council for Bahamas, Barbados, Bermuda, Jamaica, Leeward Islands, Maryland, New England, New Hampshire, New Jersey, New York, North Carolina, Nova Scotia, South Carolina and Virginia” in Royal Instructions to Colonial Governors 1670-1776, ed. Leonard Woods Labaree ​ ​ (New York: Octagon Books, 1967), 50; These latter colonies required governors to nominate councilmembers for final selection by the crown. Generally, governors nominated three allies for the crown to choose from. 107 Greene, The Provincial Governor in the English Colonies of North America, 24, 26; Ronald V. Sires, ​ ​ ​ ​ "Government In The British West Indies: An Historical Outline,” 111. 108 Ibid., 157. ​ ​ 109 Ibid., 114. ​ ​ 110 Ibid., 157. ​ ​ 111 Dinkin, Voting in Provincial America: A Study of Elections In the Thirteen Colonies, 1689-1776, 9. ​ ​ 112 Greene, The Provincial Governor in the English Colonies of North America, 158. ​ ​ ​ ​

government.113 His attempts failed, but they demonstrate how creatively governors sought to extend their power. Through the calling, prorogation, and dissolution of colonial legislatures, governors commanded massive amounts of control. Governors, like the king, held the power to summon and dismiss assemblies.114 Prorogation allowed governors to dismiss sessions of a legislature, while the right to dissolution allowed governors to call for a new election and body.115 English monarchs had long used this right for their advantage. Colonial governors used this right to manipulate assemblies. When election results favored the administration, governors would prolong the life of the assembly. In Virginia, a single session legislated on and off from 1727 to 1734.116 Another favorable session remained in power with no elections from 1742 until 1747.117 As a corollary, governors who faced difficult assemblies simply chose not to call sessions.118 In response to this encroachment, assemblies in Pennsylvania and Massachusetts required annual elections at fixed dates.119 Limitations on gubernatorial power succeeded because assemblies held the power of the purse. The power of the purse was sufficient to give legislators a negating tool. In conjunction with the popular appeal of assemblies and support for enlightened governments, this power allowed legislatures to limit gubernatorial power. In Virginia, Maryland, and several Caribbean colonies such as Barbados and the Leeward Island, the crown guaranteed governors a salary.120 Governors requested guaranteed funding in other colonies such as Jamaica, but failed to achieve that goal.121 In other colonies, the legislature provided this salary.122 Legislatures withheld the gubernatorial salary for negotiation. Even in those colonies that provided a guaranteed salary, governors had to call legislatures in order to raise taxes or tap into government revenues.123 Eventually, legislative assemblies came to be the “supreme power” in various colonies.124 There are many reasons that the legislatures rose ascendant while gubernatorial power declined. For one, by the late colonial era, the power of the purse was constitutionally in the hands of

113 Dinkin, Voting in Provincial America: A Study of Elections in the Thirteen Colonies, 1689-1776, 96. This paper does not use the term gerrymander because it is a later convention. 114 “Assembly Not to Sit Longer Than Necessary for Virginia,” in Royal Instructions to Colonial Governors ​ 1670-1776, 93; The Virginia commission illustrates how governors were supposed to “take care that the assembly ​ called by you from time to time do not sit any longer than you shall find necessary.” 115 Oxford Dictionary, s.v. “Prorogation,” accessed November 28, 2018, https://en.oxforddictionaries.com/definition/prorogation; Oxford Dictionary, s.v. “Dissolution,” accessed November 28, 2018, https://en.oxforddictionaries.com/definition/dissolution. 116 Greene, The Provincial Governor in the English Colonies of North America, 154-155. ​ ​ ​ ​ 117 Ibid. ​ 118 Ibid., 146. ​ ​ 119 Ibid., 145-146. ​ ​ 120 Greene, Peripheries and Center, 14. ​ ​ 121 Ibid. ​ 122 “Money Bills to Follow Parliamentary Style for Barbados, Bermuda, Jamaica, Leeward Islands, Maryland, New Hampshire, New Jersey, New York, South Carolina and Virginia,” in Royal Instructions to Colonial Governors, ​ 170. 123 Ibid. ​ 124 Watson, “The British West Indian Legislatures in the Seventeenth and Eighteenth Centuries: An Historiographical Introduction,” 89-91; Thomas Jefferson Wertenbaker, The Shaping of Colonial Virginia (New ​ ​ York: Russell & Russell, 1958), 63.

legislatures.125 In order to keep governments running, governors bargained away their power.126 As populations grew, so too did the size of assemblies. Governors had trouble manipulating larger assemblies with patronage.127 Legislatures effectively countered electioneering attempts. 128 The seventeenth and early eighteenth centuries in England demonstrated the futility of countering the will of a democratic upper class. Likewise, in the colonies, governors found themselves opposed not only by assemblies but also by the body politic, that is, the people who had elected the legislatures. There should be no question about the links between English constitutional development and that in the American colonies. The orations of American legislatures heavily cited Josh Rushworth’s Historical Collections, a “subversive book” which ​ ​ described the English parliament’s legal battles with the Stuart kings.129 Colonial legislators also extensively cited William Blackstone’s Commentaries on the Laws of England, as well as ​ ​ various political works by Montesquieu and Locke.130 In the end, legislatures came to be the dominant power by the end of the colonial era.131

V. Conclusion The United States Constitution is part of a larger constitutional history. Our understanding of executive authority comes from both the written and unwritten constitutions that have influenced this country. A look at the role of colonial governors is important for a number of reasons. First, it provides the background and contextualization in which one can understand the United States Constitution. In direct response to the despotic centralized power of governors in the colonial era, revolutionary-era leaders drafted founding documents with weak executives, powerful legislatures, and a distinct separation of powers. While philosophical ideas no doubt played a role in this development, the extensive historical power struggle was a more direct cause. In contrast to the early state constitutions and Articles of Confederation, the United States Constitution re-established a moderately strong executive in the presidency. In some ways, this was a conservative move to bring back more centralization. Because the Articles of Confederation failed to provide effective governance, realism also motivated the change to a stronger executive. Although the United States Constitution brought back executive power, it also distinctly separated and limited powers. Having seen despotism first hand in colonial governance, the founders sought to put limits on executive power. This study also shows the results of alternative constitutional power structures. Across the colonies, governors held diverse powers. The cases of such colonies as New York and Montserrat demonstrate the importance of an independent judiciary free from executive control. Additionally, the right of prorogation in such colonies as Virginia shows how governors could subvert popular will. The patronage system further shows the danger of allowing officials to

125 “Money Bills to Follow Parliamentary Style for Barbados, Bermuda, Jamaica, Leeward Islands, Maryland, New Hampshire, New Jersey, New York, South Carolina and Virginia,” in Royal Instructions to Colonial Governors, ​ 170. 126 Greene, The Provincial Governor in the English Colonies of North America, 203-204. ​ ​ ​ ​ 127 Dinkin, Voting in Provincial America: A Study of Elections in the Thirteen Colonies, 1689-1776, 96. ​ ​ 128 Dinkin, Voting in Provincial America: A Study of Elections in the Thirteen Colonies, 1689-1776, 96. ​ ​ 129 Greene, The Provincial Governor in the English Colonies of North America, 104. ​ ​ ​ ​ 130 Akhil Reed Amar, America's Unwritten Constitution: The Precedents and Principles We Live By (New York: ​ ​ Basic Books, 2012), 7-8. 131 Greene, The Provincial Governor in the English Colonies of North America, 146, 205. ​ ​ ​ ​

serve in multiple offices. Early America provides some of the earliest founding documents and ideas about the role of executive power. Largely divorced from European squabbling yet with diverse experimental models and results, the British colonies from the Caribbean to Canada are the ideal subject for such research. By the time of the American Revolution, many colonists harbored deep skepticism towards the English monarch and his New World representatives. As Thomas Jefferson wrote, Americans “shed monarchy with about as much ease as one would have attended their throwing off an old and putting on a new suit of clothes.”132 This skepticism toward the king makes sense when one considers the drawn-out struggle over executive authority in the colonial era. A close reading of the Declaration of Independence shows that such complaints about the king appointing “judges dependent on his will,” and “dissolving houses,” were actually complaints about colonial governors.133 An understanding of the colonial-level power struggle allows one to understand the political culture in which the founders wrote the earliest state constitutions, the Articles of Confederation, and the United States Constitution. Under gubernatorial domination, the interests of the home government and colonial administration were usually one and the same—imperialistic, elitist, mercantilist, anti-reformist, and out of touch with the people. Early colonial governors gained enormous legal powers that extended their control over legislative and judicial matters. As legislatures grew in power, governors lost their near-universal dominion. In this context of usurpation, despotism, and political strife, the founding fathers drafted the principal documents of the United States with a focus on the separation and balance of powers.

132 Gordon S. Wood, The Radicalism of the American Revolution (New York: A.A. Knopf, 1992), 109. ​ ​ 133 “The Declaration of Independence, July 4, 1776,” The Avalon Project, Yale Law School, accessed December 2, ​ ​ 2018, http://avalon.law.yale.edu/18th_century/declare.asp.