Monday, February 16, 1767
Remainder of Governor Winthrop's second Letter to Governor Bradford, begun in our last.
If we go back as far as the reign of Elizabeth, we find her, on one occasion, infringing on this priviledge, of the Commons, of judging solely, of their own elections and returns. This attempt was however so warmly resented by the Commons, that they instantly voted “That it was a most perilous precedent, when two knights of a county were duly elected, if any new writ should issue out, for a second election, without order of the house itself; that the discussing and adjudging of this and such like differences, belonged only to the house; and that there should be no message sent to the Ld. Chancellor, not so much as to enquire what he had done, in the matter; because it was conceived to be a matter derogatory to the power and priviledge of the house.”1
After this vote, which had in it something of the spirit of liberty and independency, we hear of no more disputes upon that subject, till we come to the reign of James the first, whose whole life was employed in endeavouring to demolish every popular power, in the constitution, and to establish the awful and absolute sovereignty of Kingship, that, as he express'd himself to the convocation, Jack and Tom, and Dick and Will, might not meet and censure him and his Council. And in order to accomplish the important purpose of his reign, he thought that nothing could be more useful, than to wrest from the Commons, into his own hands, or those of his creature, the Chancellor, the adjudication of their elections and returns. Outlaws, whether for misdemeanours or debts, had been declared by the judges, in the reign of Henry the sixth, incapable by law of a seat in the house, where they themselves must be lawgivers. Sir Francis Goodwin was now chosen for the county of Bucks, and his return was made as usual into Chancery. The Chancellor decreed him an outlaw, vacated his seat, and issued writs for a new election. Sir John Fortesque was chosen in his room. But the first act of the house was to reverse the decree of the Chancellor, and restore Goodwin to his seat. At James's instigation the Lords desired a conference on this subject, but were absolutely refused by the Commons, as the question regarded intirely their own priviledges. They agreed however to make a remonstrance to the King, by their speaker; where they maintained that tho' the returns were by form made into chancery, yet the sole right of judging
with regard to elections belonged to the house itself. James was not
satisfied, and ordered a conference between the house and the judges. The Commons were in some perplexity. Their eyes were now opened, and they saw the consequences of that power, which had been assumed, and to which their predecessors had in some instances blindly submitted.2
This produced many free speeches in the house, “By this course, said one member, the free election of the counties is taken away, and none shall be chosen but such as shall please the King and Council. Let us therefore with fortitude, understanding and sincerity, seek to maintain our priviledges. This cannot be construed any contempt in us, but merely a maintenance of our common rights, which our ancestors have left us, and which is just and fit for us to transmit to our posterity.” Another said, this may be called a quo warranto to seize all our liberties. “A Chancellor, added a third, by this course may call a parliament consisting of what persons he pleases. Any suggestion by any person, may be the cause of sending a new writ. It is come to this plain question, whether the Chancery or Parliament ought to have authority.”3
The Commons however, notwithstanding this watchful spirit of liberty, appointed a committee to confer with the judges before the King and Council. There the question began to appear a little more doubtful than the King had imagined, and to bring himself off, he proposed that Goodwin and Fortesque should both be set aside, and a writ be issued by the house, for a new election. Goodwin consented, and the Commons embraced this expedient; but in such a manner, that while they shewed their regard for the King, they secured for the future, the free possession of their seats, and the right which they claimed of judging solely of their own elections and returns. Hume who will not be suspected of prejudice against the Stuarts, and in whose words very nearly this story is related, remarks at the conclusion, “Power like this, so essential to the exercise of all their other powers, themselves so essential to public liberty, cannot fairly be deemed an encroachment in the Commons, but must be regarded as an inherent priviledge, happily rescued from that ambiguity, which the negligence of former parliments had thrown upon it.”4
Smollet concludes his account of this affair with this reflection, “Thus the commons secured to themselves the right of judging solely in their own elections and returns.”5
And my Ld. Bolingbroke, whose knowledge of the constitution will not be disputed, whatever may be justly said of his religion, and his morals, remarks upon this transaction of James thus, “Whether the will of the Prince becomes a law independently of parliament, or whether it is made so upon every occasion, by the concurrence of parliament, arbitrary power is alike
established. The only difference lies here. Every degree of this power, which is obtained without parliament, is obtained against the forms, as well as against the spirit of the constitution; and must therefore be obtained with difficulty and possessed with danger. Whereas in the other method of obtaining and exercising this power, by and with parliament, if it can be obtained at all, the progress is easy and short, and the possession of it is so far from being dangerous, that liberty is disarmed, as well as oppressed by this method; that part of the constitution (viz. the house of commons) which was instituted to oppose the encroachments of the Crown, the maladministration of men in power, and every other grievance, being influenced to abet these encroachments, to support this mal-administration, and even to concur in [op]
posing the grievances.”6
Now if we compare the attempt of King James, with the attempt of the Governor, who can discern a difference between them? James would have vacated the seat of Sir Francis Goodwin, because his election was against law, i.e. because Sir Francis was an outlaw; The Governor would have vacated the seats of Col. Gerrish and Capt. Little, because their election was against law, i.e. because they were both chosen and returned by a town, which by law was to choose and return but one. The King in one case, the Governor in the other, made himself judge of the legality of an election, and usurped authority to vacate the seats of members. I consider the power of the Chancellor here, which the King contended for as the power of the King, because there is no great difference in such cases, as has been very well known from the time of James to this day, between the power of the creator and that of the creature. And I say vacate the seats, because an exception from the Dedimus, is an absolute annihilation of a gentleman's seat, because by charter no man can vote or act as a representative till he has taken the oaths. It is as entire an exclusion from the house as an expulsion would be.
We will now if you please throw together a few reflections upon the soothing, amazing, melting solution of this arduous difficulty, with which Philanthrop has entertained the public.
He begins with an instruction to the Governor from his Majesty, not to consent to the division of towns.7
There has often been conversation during the administration of several late Governors, concerning such a royal instruction, which for any thing that I know may be a good one: but let it be good or evil, or whether there is any such or not, it has been found in experience, that when the division of a town would make way for the election of a friend, this instruction
has been no impediment; and I need not go further than Concord and Newbury for two examples of this. Though I must go as far as the celebrated Berkshire for an instance of another member and favorite chosen and returned, as expressly against the instruction and law of the province, and knowingly suffered by the Governor to be sworn, without any exception in the Dedimus, and to vote for the Council, and finally left to the house, without any exception, caveat, message or hint to judge of their privilege, and vacate his seat. But to return to the instruction, is it a command to the governor to take upon himself to judge of the legality or illegality of the choice, returns or qualifications of the members of the house? No man will pretend this, or dare to throw such an infamous affront upon his Majesty or his Ministers, who perfectly know that even his Majesty himself has no right or authority whatever to judge in this matter. And that for the King himself to attempt to judge of the elections, returns or qualifications of the members of the house of Commons, or of the house of Representatives, would be an invasion of their privilege, as really as for them to coin money, or issue commissions in the militia, would be an encroachment on the Royal prerogative. If Newbury had sent ten, and Boston forty members, has the common law, or any act of parliament, or any law of the province, or this his Majesty's instruction, made the governor the judge, that those towns have not a right by law to send so many? The only question is, who shall judge? Is it the purport of that instruction, that the governor should except the forty and the ten out of the Dedimus? Would it not be as much as the King would expect of the governor, if he should give the Dedimus in the usual form, that is, to swear all the members, and leave it to the house to judge who the members were? And if the governor really supposed, as Philanthrop says he did, that the house would be jealous of the honor of their own laws, why should he have taken that jealousy away from them? Why did he not leave it to them to vindicate their own cause? If he had known any facts in this case, of which the house was not apprized, it would have been friendly and constitutional in him to have hinted it privately to some member of the house, that he might have moved it there. But there was no pretence of this, the case of Newbury being as well known to the house as to the governor. Or if he must have inserted himself in the business publickly, he might have sent the necessary information to the house in a message, recommending it to their consideration, not giving his own opinion, for this would have been an infraction of their privilege; because they are the sole judges in the matter, and ought not to be under the in•
fluence even of a message from his E——y, expressing his opinion, in deciding so very delicate a point as elections and returns, a point on which all the peoples liberties depend. Five members chosen and returned by Boston would be an illegal election; but how should the Governor come by his knowledge, that Boston had chosen and returned five? how should the precepts and returns come into his hands? It is no part of his Excellency's duty to examine the returns which are made to the sheriff, and lodg'd in the secretary's office. There can be no objection to his looking over them to satisfy his curiosity; but to judge of them belongs wholly to another department. Suppose him to have inspected them, and found five returned for Boston, would not this be as manifestly against the spirit of the instruction, and the standing law of the province, as the case of Newbury? And what pretence would he have to judge of this illegal election, any more than of any other? Suppose, for instance, it was proved to his Excellency, that twenty members returned were chosen by corruption, that is, had purchased the votes of the electors by bribery; or let it be proved that any number of the members had taken Rhode-Island or New-Hampshire bills, were out-laws, or chosen by a few inhabitants of their towns without any legal meeting, these would be equally illegal elections, equally against the instruction, and the law of the land: but shall the governor judge of these things, and vacate all such seats, by refusing them their oaths? Let it be suggested that a member is an infant, an idiot, a woman in man's cloathing, a leper, a petit-maitre, an enemy to government, a friend to the governor's enemies, a turbulent destroyer of the public peace, an envious malicious pretender to patriotism, any one of these, or a thousand other pretences, if the Governor is once allowed to judge of the legality or illegality of elections and returns, or of the qualifications or dis-qualifications of members, may soon be made sufficient to exclude any or all whom the Governor dislikes.8
The supposition that Boston should send forty, and all the other towns ten, is possible; but it is not less improbable that the Governor, and all others in authority, should be suddenly seized with a delirium, negative every counsellor chosen, dissolve the house, call another, dissolve that, command all the militia to muster and march to the frontiers, and a thousand other raving facts; and all that can be said is, that when such cases shall happen, the Government will be dissolved, and individuals must scramble as well as they can for themselves, there being no resource in the positive constitution for such wild cases. But surely, a negative, a right of exception in the Dedimus, would be of no service to him in such a case. So that no
justification or excuse for the Governor's apprehensions or conduct, can be drawn from such supposed cases.
How the Governor's conduct in signing the bill for dividing Newbury came to be considered as so very friendly, and highly obliging, is not easily comprehended, unless every act of the Governor is to be considered in that light. If he signed the bill to oblige any particular friend, or in order that a friend's friend might get into the house, it was friendly and obliging no doubt to such friends: but if he signed it because he thought it for the general good, as I suppose he did, it was a part of his general duty, as governor, and no more obliging than any other act of equal importance. I suppose here that such conduct was not inconsistent with what he knew to be the intention of his instructions; for surely no man will call it friendly and obliging wilfully to break his instructions, for so small a benefit to the province as dividing a town. So that he can't be imagined to have run any risque in this case, any more than in any other instance of his duty.
It is asserted that the Governor had been misinformed concerning the custom of the house. How far this is true I know not. But had he been informed that they had a custom to let the Governor judge of their elections and returns! a custom to let him pick out whom he would to be sworn, and whom he would to send home! unless he had been informed of such a custom, I cannot see that any other misinformation can defend or even palliate his taking that part upon himself. But surely he had opportunity enough to have had the truest information. There were gentlemen eno' of both houses ready to acquaint him with the customs, nay the journals of the house would have informed him that the returns were all read over the first day before they proceeded to the choice of counsellors. And he ought, one would think, to have been very sure he was right, before he made so direct an onset on so fundamental a priviledge. Besides it has been, and is very credibly reported, and I believe it to be true, that he gave out, more than a week before that election, what he would do and did, and that some of his friends fearing the consequences, waited on him on purpose to diswade him from such an attempt, but without success. So that it was no sudden thought, nor inadvertency, nor rashness of passion—I report this as I have before some other things, from credible information, and real belief, without calling on witnesses by name, as such evidence is lately come in fashion, and is thought alone sufficient to support narratives and depositions sent to the boards at home, charging the blackest crimes on the country, and some of the most respectable characters in it. But admitting he was
misinformed of the custom, I can't see that this is of any weight at all in the dispute. Whether the house examined any returns at all the first day or not, he could have no pretence to interpose. If he thought the custom was to examine no returns till the second day, and that such a custom was wrong, and ought to be altered, he might for ought I know, unexceptionably have sent a message, recommending this matter to the consideration of the house, not dictating to them how they should decide, much less should he have decided himself without consulting them, much less should he have taken from them the opportunity of judging at all, as by excepting the gentlemen out of the Dedimus in fact he did.
Philanthrop makes it a problematical point, whether his E——y's apprehensions or the custom of the house be most consonant to reason and our constitution. I confess myself at a loss to know from his account what his E——y's apprehensions were. If he means that his E——y apprehended that the house ought to change their custom, and decide upon all elections and returns before they proceed to the choice of councellors, I agree with him that such a point is immaterial to the present dispute, but if he means that his E——y apprehended he had a right to except such members out of the Dedimus as he pleas'd, or any members at all, he begs the question, and assumes that it is problematical whether he is or is not sole judge of elections, has or has not the same cathartic negative to administer when he thinks proper to the house, as he has to the board, which according to all the authorities I have cited before, and according to common sense, is to make it problematical whether the Governor has or has not plenary possession of arbitrary power.
It is asserted by our writer, that the two gentlemen were sworn and voted or might have voted. As to their being sworn, there could not possibly any harm accrue from any gentleman's taking the oaths of allegiance, subscribing the declaration, &c. and if the committee had been pleased to swear the whole country on that occasion, no damage would have been done, and from whence the Governor's dread of administering the oaths of allegiance to those gentlemen could arise, I can't conceive; from scruples of conscience it could not be, because he has often taken those oaths himself. As to the gentlemen's voting, I believe Philanthrop is mistaken, because I have been strongly assured they did not, but that they stood by, till the elections were over, as it was expected by the other members that they should. However I do not affirm this—The gentlemen themselves can easily determine this matter.
Philanthrop is often complaining of skulking, dark insinuations, &c. but I know of no man who deals in it so much as he. Witness among a thousand others, his base insinuations about the Senate and Gazette in his first piece, and what he says in his last about such a thing, being given out from a certain quarter, from what principle he will not say, a very dark unintelligible insinuation of no body knows what, against no body knows whom, which leaves every body to fix what he will on whom he will, and tends only to amuse and mislead.9
And nearly of the same character is a curious expression, somewhere in the piece, calling the exception of the two gentlemen out of the Dedimus, a Caveat to the House—which is about as sensible as it would be to cut off a man's legs and chain him fast to a tree, and then give him a caution, a Caveat, not to run away.
That the Governor did not succeed in his attempt is no proof that he did not make it. Our thanks are not due to him, but to the house, that this Dedimus was not received; all the members sworn by virtue of it, and itself lodged on file, as a precedent, to silence all envious and revengeful declaimers, both for himself and all his successors. It is equally true that King James did not succeed in his attempt, but gave it up. Yet all historians have recorded that attempt as a direct, and formidable attack on the freedom of elections, and as one proof that he aimed at demolishing the constitution, at stretching prerogative beyond its just bounds, and at abridging the constitutional rights and liberties of the nation. What should hinder but that a Governor's attempt should be recorded too? I doubt not a Bacon quibbling and canting his adulation to that Monarch in order to procure the place of Attorney General or Lord Chancellor, might celebrate his Majesty's friendly, modest, obliging behaviour in that affair: yet even the mighty genius of Bacon could never rescue his sordid soul from contempt for that very adulation, with any succeeding age.