1. Kennedy, Archibald, An Essay on the Government of the Colonies (New York, 1752), 23, 26Google Scholar. See, e.g., Act for the Paying and Discharging the Several Debts (New York, 1715), (Evans 1771), 85 Published Colonial Records of the American Colonies 160, 160 (CR 35. New York, Reel 1).

2. For the settlement of debts directly by the assembly, see, e.g., Act for raising a fund, 1708, The Colonial Laws of New York from the Year 1664 to the Revolution (Albany, 1894)Google Scholar (hereafter cited as Col. Laws), 1:628-30; Act for raising £253, 1708, ibid., 624-25; Act for the Treasurer['s] issuing bills of credit, 1709, ibid., 698-700. For the delegation of payment authority to commissioners, see, e.g., Act for levying £6000, 1709, ibid., 654-55; Act to ap-point commissioners, 1711, ibid., 727-28. The New York assembly apparently used similar methods from the late 1730s on, although Charles Spencer's work may indicate an interim period during which the House asserted its authority less explicitly. See, e.g., Act to apply the sum of £617, 1742, ibid., 203; Spencer, Charles W., “The Rise of the Assembly, 1691–1760,” in History of the State of New York, ed. Flick, A. C. (New York, 1933), 2:173–75.Google Scholar

3. The term “constitutional” has several meanings in the American context. I refer throughout the paper to constitutional history in its generic or most inclusive sense as the study of how people define political community in law. For the shifting use of the term in America to refer to particular written constitutions, see Wood, Gordon S., The Creation of the American Republic, 1776–1787 (Chapel Hill, 1969), 259–305.Google Scholar

4. It is probable that legislative adjudication occurred widely in the American colonies; if it did, its impact on American constitutional thought and practice would obviously be more pervasive. I selected New York as the subject of this case study in part because Jack P. Greene's work, while not so characterizing it, indicates the existence of the legislative adjudication in North Carolina, South Carolina, and Virginia. See Greene, Jack P., The Quest for Power: The Lower Houses of Assembly in the Southern Royal Colonies, 1689–1776 (Chapel Hill, 1963), 51–71.Google Scholar Among the remaining royal colonies, Massachusetts was notoriously independent; the terms of political arguments before the Revolution imply that the legislature exercised some significant adjudicative authority there. See, e.g., Otis, James, A Vindication of the Conduct of the House of Representatives (Boston, 1762).Google Scholar Descriptions of legislative operations in New Jersey suggest that it followed a pattern similar to that of New York. See, e.g., Kemmerer, Donald L., Path to Freedom: The Struggle for Self-Government in Colonial New Jersey, 1703–1776 (Princeton, 1940), 21–113.Google Scholar I consider evidence of legislative adjudication in these and other colonies in Desan, , “The Constitutional Commitment to Legislative Adjudication in the Early American Tradition,” Harvard Law Review 111 (1998)CrossRefGoogle Scholar: (forthcoming).

5. See, e.g., Kemp, Betty, King and Commons, 1660–1832 (London, 1957), 32–75Google Scholar; Holdsworth, William S., A History of English Law, 3d ed. (London, 1944), 9:7–45Google Scholar; Roseveare, Henry, The Treasury, 1660–1870: The Foundations of Control (London, 1973), 17–45.Google Scholar

6. See, e.g., Jaffe, Louis, “Suits Against Governments and Officers: Sovereign Immunity,” Harvard Law Review 77 (1963): 1-2, 19Google Scholar; Street, Harry, Governmental Liability: A Comparative Study (Cambridge, Eng., 1953), 7–10.Google Scholar There is, as Jaffe observes, “little in the books” about claims for money damages during the eighteenth century. Jaffe, “Suits Against Governments and Officers,” 8. That is because the action was elsewhere than in the courts. The fragmentation of the literature is reinforced by the disjuncture occasioned by the Constitution. Although that moment left the practice and rhetoric of legislative adjudication largely intact, Article III represents the beginning of the modern era for the courts later interpreting their own history; the legislative history of the colonial period is correspondingly marginalized. Floyd D. Shimomura's article is exceptional for its attempt, though brief, to probe the roots of the legislative tradition. See Shimomura, , “The History of Claims against the United States: The Evolution from a Legislative toward a Judicial Model of Payment,” Louisiana Law Review 45 (1985): 627–33.Google Scholar There is also a small literature on the creation of claims courts in the United States that identifies the earlier era of legislative management of claims. See, e.g., Wiecek, William, “The Origins of the United States Claims Court,” Administrative Law Review 20 (1968): 387.Google Scholar

7. Jack P. Greene's comprehensive account of the expansion of legislative authority in the Southern colonies contains the most intriguing references in the literature. Greene, however, wrote to document the rise of the assemblies against imperial power, a goal that did not raise the issue of the legislatures' relationship with developing colonial courts. See Greene, Quest for Power, 51-71. For similar descriptions of the practice in Virginia, see also Bailey, Raymond C., Popular Influence Upon Public Policy: Petitioning in Eighteenth-Century Virginia (Westport, Conn., 1979), 129–30Google Scholar; Pargellis, Stanley, “The Procedure of the Virginia House of Burgesses,” William and Mary Quarterly, 2d ser., 7 (1927): 142–57.CrossRefGoogle Scholar

8. See, e.g., Greene, Evarts B., The Provincial Governor in the English Colonies of North America (Cambridge, Mass., 1898), 121-24, 177–82CrossRefGoogle Scholar; Labaree, Leonard W., Royal Government in America: A Study of the British Colonial System before 1783 (New Haven, 1930), 269–311.Google Scholar On New York, see Spencer, Charles W., Phases of Royal Government in New York 1691–1719 (Columbus, Ohio, 1905), 97–156Google Scholar and “The Rise of the Assembly,” 195-97.

9. See, e.g., Wood, Creation of the American Republic; Pocock, J. G. A., The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, 1975)Google Scholar; Amar, Akil Reed, “Of Sovereignty and Federalism,” Yale Law Journal 96 (1987): 1425.CrossRefGoogle Scholar

10. Assembly message to Council, 10 October 1705, Journal of the Votes and Proceedings of the General Assembly of the Colony of New-York (1691–1765) (New York, 1764–1766), 1:206Google Scholar (hereafter cited as JGA); Act to supply defects of an act for appointing commissioners, 1703, Col. Laws, 1:548. For a restatement of the imperial allocation of the power to levy taxes to the assembly and the power to spend to Crown appointees, see, e.g., Governor Cornbury to Lords of Trade, 8 July 1705, Documents Relative to the Colonial History of the State of New-York, ed. O'Callaghan, E. B. (Albany, 1853–1887), 4:1145–46Google Scholar (hereafter cited as Docs. Col. Hist.); see generally Labaree, Royal Government, 214–15.

11. For the trans-Atlantic character of developments in the American colonies and in New York particularly, see, e.g., Bailyn, Bernard, The Origins of American Politics (New York, 1968)Google Scholar; Katz, Stanley N., Newcastle's New York: Anglo-American Politics, 1732–1753 (Cambridge, Mass., 1968), 3–20CrossRefGoogle Scholar; Murrin, John, “The Menacing Shadow of Louis XIV and the Rage of Jacob Leisler: The Constitutional Order of Seventeenth-Century New York,” in New York and the Union, ed. Schechter, Stephen and Bernstein, Richard (Albany, 1990), 29–71.Google Scholar

12. See, e.g., Katz, Newcastle's New York, 8-9; Kemp, King and Commons, 32-75; Thomas, P. D. G., The House of Commons in the Eighteenth Century (Oxford, 1971), 65–88.Google Scholar

13. Roseveare, The Treasury, 1660–1870, 23-25, 31-32, 48. As Roseveare emphasizes, the ability to control the application of revenue to expenditures that the Treasury sought was a matter distinct from the authority to spend, i.e., to select the expenditures themselves. The latter power was retained by the Crown acting with the Privy Council and the Cabinet. Ibid., 27-29, 34; see also Baxter, Stephen B., The Development of the Treasury, 1660–1702 (Cambridge, Mass., 1957), 49-50, 56-60, 78.Google Scholar

14. Additional Aid of 1665, 17 Car. 2, c. 1. The creation of “Treasury Orders” as the currency of the Additional Aid levy itself located the Treasury as the necessary center of distribution.

15. Ibid.; see generally Chandaman, C. D., The English Public Revenue, 1660–1688 (Oxford, 1975), 295–99.Google Scholar The constitutional turmoil that followed attempts earlier in the seventeenth century to raise loans or revenue through the prerogative courts or with the help of the army removed those courses of action as practical alternatives after the Restoration. Roseveare, The Treasury, 1660-1870, 22.

16. Downing used the London Gazette solicitously to notify holders of Orders of the time-table for their payment. See, e.g., excerpts from London Gazette, nos. 135 (4 March 1667) (noting that “there remains Money in the Bank” for the Crown's creditors), 245 (23 March 1668) (calling in all claims for registering “least otherwise any new Charge upon the said Revenue exclude them”), 411 (25 October 1669) (reminding those not yet claiming payment to come to the Exchequer “that they may receive their Money due”), reprinted in Roseveare, The Treasury, 1660-1870, 125-26; see ibid., 25-26, 31-37. Charles II extended the guarantee of “in course” payment by royal proclamation. Ibid., 32. Parliament endorsed the royal action when it provided by statute that the Treasury Orders issued on ordinary revenues were negotiable. 19 & 20 Car. 2, c. 4.

17. For the formal sources of Treasury authority, including the Privy Seal, see Chandaman, English Public Revenue, 290; Clark, Dora Mae, The Rise of the British Treasury: Colonial Administration in the Eighteenth Century (New Haven, 1960), 6–7.Google Scholar For the structural developments that attributed supervisory power to the Treasury, and for the continued expansion of Treasury power in the eighteenth and nineteenth centuries, see Roseveare, The Treasury, 1660-1870, 17-73. For references to and examples of the Treasury's routine settlement authority, see Baxter, Development of the Treasury, 24-25, 42-43, 75-78; Leder, Lawrence H., Robert Livingston, 1654–1728, and the Politics of Colonial New York (Chapel Hill, 1961), 185–96Google Scholar; see also Macbeath v. Haldimand, 1 T.R. 177 (1786) (Mansfield, C.J.); ibid., 181 (Willis, J.). The treasurer's oath of office compelled him “truly to keep and dispend the king's treasure.” The Case of the Bankers, in A Complete Collection of State Trials, ed. Howell, T. B. (London, 1812), 14:64Google Scholar (Somers, J.) (hereafter cited as Bankers’ Case). Lord Somers evoked the traditional image of the treasurer's authority when he noted that “My lord chief justice Coke has a fancy… that [the treasurer's] white staff was given him ‘to drive away importunate suitors.’” Ibid., 103.

18. The Treasury issued some Treasury Orders directly to contractors and public creditors. Others went to spending departments of government like the Navy, which ran their operations under the authority of long-running pay establishments that greatly reduced departmental accountability to the Treasury. Chandaman, English Public Revenue, 296; Roseveare, The Treasury, 1660-1870, 24, 37-40; see also Baxter, Development of the Treasury, 3, 43-46, 69 (describing residual power of the Treasury to allow unauthorized expenses and to approve selective issues when an establishment was in arrears). The control that the Treasury had varied considerably across the departments, and some decreasing number of monies like the secret funds continued to be issued outside the Treasury's jurisdiction. See generally Baxter, Development of the Treasury, 1-3, 7-13, 23, 54-56, 68-78, 122, 132-33; Roseveare, The Treasury, 1660-1870, 38, 62-67; Clark, Rise of the British Treasury, 3, 7-8, 10-14. For descriptions of the powers bestowed on the Treasury by the 31 January 1668 Order of Council (expanding the Treasury's control vis-à-vis the Secretaries of State) and the 17 June 1667 Order of Council (establishing the rule of “special sanction” that granted oversight of departmental spending to the Treasury), see Baxter, Development of the Treasury, 12-16; Roseveare, The Treasury, 1660-1870, 26-27, 37-38, 62, 66-74. Both orders are reprinted by Roseveare. Ibid., 113-15,, 118. For Edmund Burke's words, see Works, octavo ed. (London 1808), 3:310, quoted in Bankers' Case, 30 note.

19. Bankers' Case, 1-114. Two analyses usefully locate the Bankers' Case in the financial history. See J. Keith Horsefield, “The ‘Stop of the Exchequer’ Revisited,” The Economic History Review, 2d ser., 35 (1982): 511-28; Richards, R. D., “The ‘Stop of the Exchequer,’” Economic History 2 (1933): 45–62.Google Scholar The standard treatment of the case in the legal literature is by William Holdsworth, who considers the influence that the case had on nineteenth-century legal developments, an approach that has left the case's constitutional signficance and much of its contemporary doctrinal impact unexplored. See Holdsworth, English Law, 9:32-42.

20. See Richards, “The ‘Stop of the Exchequer,’” 45; Horsefield, “The ‘Stop of the Exchequer’ Revisited,” 512. For Charles's commitment to pay “in course,” see Proclamation of 18 June 1667, quoted in Roseveare, The Treasury, 1660-1870, 32. For the Treasury Commissioners' views on the Crown's financial health, see, e.g., “Scheme for settling his Majesty's expense upon the several Branches of his Majesty's Revenue, presented to his Majesty by the Lords Commissioners of his Treasury,” 20 October 1668, reprinted in Roseveare, The Treasury, 1660-1870, 120-24. On the Crown's financial situation and the overissue of Treasury Orders generally, see ibid., 39-40; Chandaman, English Public Revenue, 297-98; Horsefield, “The ‘Stop of the Exchequer’ Revisted,” 511-13.

21. The fact that the Stop was partial—whole categories of expenses such as the salaries of ministers and the support of guards and garrisons continued to be paid—made even more dramatic the breach of the promise to creditors of “in course” repayment. For the partial nature of the Stop, see Horsefield, “The ‘Stop of the Exchequer’ Revisited,” 513.

22. The king began paying his creditors again in 1677, granting them annuities out of the hereditary excise, redeemable upon payment of the principal. Payment continued intermittently until Charles's death in 1685 but stopped shortly afterwards. Bankers’ Case, 3, 48 (Somers, J.); Horsefield, “The ‘Stop of the Exchequer’ Revisited,” 514-17. On parliamentary proposals to over-obligate the hereditary excise and on total amounts available from the excise, see Horsefield, “The ‘Stop of the Exchequer’ Revisted,” 515, 517-18.

23. See Bankers'Case, 57, 68 (Somers, J.); Holdsworth, English Law, 9:22. By the late seventeenth century, immunity doctrine was an immensely complicated area of the law in which procedural form and proper forum depended heavily on the type of claim and remedy at issue. See generally Holdsworth, English Law, 9:7-15. My discussion here is specific to claims for monetary recompense from the Crown.

Claimants on the Crown could also sometimes bring suits against its agents, although that route was limited in certain respects. See generally Jaffe, “Suits Against Governments and Officers,” 1-39. The bankers in fact may have attempted to sue farmers of the excise. See Horsefield, “The ‘Stop of the Exchequer’ Revisited,” 517.

24. Scholarship that explores the financial development of the Treasury (and is thus not concerned with issues of legal remedy for their own sake) operates on the assumption, apparently shared by the reformers at the Treasury, that the public had no recourse but to depend on the reliability of administrative actors. E.g., Roseveare, The Treasury, 1660-1870, 32-33. By contrast, payment of a debt symbolized by a pro tally could be enforced by a suit against the Receiver of the Exchequer. As a result, the Treasury's use of that device was very restricted by the late seventeenth century. See Chandaman, English Public Revenue, 288 n.3, 294.

25. Those supporting the petition to the barons predictably denied the novelty of the procedural route used by the bankers, characterizing it as a monstrans de droit. See, e.g., Bankers' Case, 107 (Case of the Plaintiff); Considerations humbly offered to the great councel of England in Parliament assembled (London, 1699).Google Scholar It appears quite clear, however, that the petition was procedurally unprecedented. See Holdsworth, English Law, 9:33-35; Bankers' Case, 77-84 (Somers, J.). Somers's assessment of the case's significance is at ibid., 43. By 1696, when Somers issued his opinion, outstanding interest alone on the bankers’ claim would have amounted to an immediate debt of £1.1 million at a moment when outstanding tallies already represented a debt of £8 million, according to Horsefield's figures. See Horsefield, "The ‘Stop of the Exchequer’ Revisited,” 520.

26. Bankers’ Case, 105, 108, 110-11. For the legal course of the Exchequer, see Plucknett, Theodore F. T., A Concise History of the Common Law, 5th ed. (Boston, 1956), 170–72Google Scholar.

27. Holdsworth, English Law, 9:20; Bankers' Case, 58 (Somers, J.).

28. Bankers' Case, 105 (Somers, J.).

29. Ibid., 103 (Somers, J.), 26 (Treby, J.).

30. Bankers' Case, 103, 105 (Somers, J.). For a description of the burden of the Nine Years War, see, e.g., Jones, J. R., Country and Court: England, 1658–1714 (Cambridge, Mass., 1978), 256–78.Google Scholar

31. Baxter, Development of the Treasury, 1-2, 109-12. The Lord High Treasurer of England held office jointly as the Treasurer of the Exchequer. Ibid. The Court of the Exchequer (or Exchequer of Pleas) had originally developed within the Upper Exchequer (or Account) to enforce revenue collection, a history enlisted by both Treby and Somers to distinguish its common law jurisdiction from that of the treasurer, who controlled the issue of funds. See Bankers' Case, 25 (Treby, J.); ibid., 46-48, 53, 65 (Somers, J.); see generally Plucknett, Concise History, 170-72. Although the language used by Somers and Treby sounded the terms of the Treasury's origins and ignored its current and more specialized administrative structure, their identification of executive and judicial functions in practice and conception was common in the period. See, e.g., Bankers' Case, 26 (Treby, J.); ibid., 65, 66 (Somers, J.); see also the somewhat inconsistent terminology at ibid., 68, 71, 73 (Somers, J.); see generally, Jones, W. J., Politics and the Bench: The Judges and the Origins of the English Civil War (London, 1971), 15–20Google Scholar; Vile, M. J. C., Constitutionalism and the Separation of Powers (Oxford, 1967), 28–75.Google Scholar

32. Bankers’ Case, 53 (Somers, J.). Holdsworth agrees with this assessment (English Law, 9:33-35); Horsefield takes a contrary position (“The ‘Stop of the Exchequer,’ Revisited,” 520). Renowned as “one of the most elaborate arguments ever delivered in Westminster Hall,” Somers's opinion also became a point in his impeachment ten years later and deserves further exploration in political context. State Trials, 14:234. The opinion could have been an effort to save the Crown from a huge liability. Horsefield, “The ‘Stop of the Exchequer’ Re-visited,” 520. At the same time, restricting the judicial remedy would have limited the Crown's ability, by successfully over-obligating itself, to pressure the Commons into additional appropriations. Parliament could, of course, ignore the need; the Crown would in the long run further undermine its own credit.

33. Bankers' Case, 36 (Holt, J.); see also ibid., 109 (Case of the Plaintiff). The use of private law analogies was fairly traditional. See, e.g., Lampson, Edward, “Some New Light on the Growth of Parliamentary Sovereignty: Wimbish v. Taillebois,” American Political Science Review 35 (1941): 952–60.CrossRefGoogle Scholar

34. The “in course” reform survived the Stop of the Exchequer; that mode of proceeding in fact became standard to the government's financial operation in the eighteenth century. See Chandaman, English Public Revenue, 297-98; Roseveare, The Treasury, 1660-1870, 40. For reviews of currents in religious and economic thought that could also have contributed at a conceptual level to Holt's more individualistic approach, see Hill, Christopher, The Century of Revolution, 1603–1714 (New York, 1980), 63-85, 139–60Google Scholar; Joyce Appleby, Liberalism and Republicanism, 34-123, 161-87. Petitions to the King and Parliament included Considerations humbly offered to the great councel of England in Parliament assembled (London 1699)Google Scholar; The case of many thousands of His Majesty's subjects, who for valuable considerations are entituled, under the letters patents of King Charles the Second, to annual sums out of the hereditary revenue of excise (London, [1699/1700]); The deplorable condition of the assignees of sundry goldsmiths (London, 1697)Google Scholar; The case of the assignees of the goldsmiths, for their interest granted to be paid out of the hereditary revenue of excise (London, 1689)Google Scholar; The case of the patentees and their assignees who are intitled to several annual payments out of the hereditary excise (London, 1695)Google Scholar.

35. Bankers' Case, 109 (Case of the Plaintiff), 110 (Journal of Lords).

36. On the Commissions of Public Accounts, see Downie, J. A., “The Commission of Public Accounts and the Formation of the Country Party,” English Historical Review 91 (1976): 33–51CrossRefGoogle Scholar; Shaw, William A., ed., Calendar of Treasury Books, 1689–1692 (London, 1931), 9:cli–clxxivGoogle Scholar (“Commissioners of Public Accounts”) and Calendar of Treasury Books, Introduction to Vols. XI-XVII, 1695–1702 (London, 1934), clv–clxxxviGoogle Scholar (“Commission for Taking and Stating the Public Accounts”); Rubini, D. A., Court and Country, 1688–1702 (London, 1967), 68–92.Google Scholar On legislative initiatives more generally, see ibid.; Roseveare, The Treasury, 1660-1870, 47-74, and The Treasury: The Evolution of a British Institution (London, 1969), 66–67.Google Scholar The Commons had previously asserted the power to scrutinize expenditures, most notably in the fifteenth century, but had sustained none of those attempts as it would two centuries later. Roseveare, The Treasury, 1660-1870, 46-49; see also Roskell, J. S., “Perspectives in English Parliamentary History,” Bulletin of the John Rylands Library 46 (1963–1964): 468–74Google Scholar (reviewing decline in parliamentary control of taxation and audit under Tudors). Roskell dates the resurrection of significant auditing attempts to the 1624 Subsidy Act. Ibid., 472-73 and n.3.

37. See, e.g., 17 Car. 2, c. 1; 19 & 20 Car. 2, c. 4; see also, for example, parliamentary support for the ratification of “in course” payment as part of the Exchequer reform of 1696, reviewed by Roseveare, The Treasury, 1660-1870, 51-52.

38. See sources cited at note 33. The Stop generally impaired available credit, bankrupted something like twenty of the Crown's major financiers, left approximately 2,500 of their sub-creditors and customers empty-handed, and sent a number of individuals—claimants still on the Crown—to debtors’ prison. Horsefield, “The ‘Stop of the Exchequer’ Revisited,” 523-27; see also Richards, “Stop of the Exchequer,” 45-62; Roseveare, The Treasury: The Evolution, 66-68; Roseveare, The Treasury, 1660-1870, 51, 55-56. For Parliament's actions, concurrent with those of the Treasury and the courts, to resolve the Bankers’ Case, see Horsefield, “The ‘Stop of the Exchequer’ Revisited,” 514, 517-19, 520-21, 523. The opposition legislator was Sir William Coventry, 28 April 1675, quoted in Roseveare, The Treasury, 1660-1870, 55.

39. An act for Appointing and Enabling Commissioners to Examine Take and State the Publicke Accounts of the Kingdome, 2 Will. & Mary, sess. 2, c. 11. The initial statute was continued by 3 Will. & Mary c. 6; 4 Will & Mary c. 11; 5 & 6 Will. & Mary c. 23; 6 & 7 Will. & Mary c. 9; 7 & 8 Will. 3, c. 8.

40. The mandate to “examine take and state the public accounts” directed the Commission to identify “how and in what manner and by whome and to whome the same have beene ordered paid or disposed.” 2 Will. & Mary, sess. 2, c. 11, sec. 1. Commissioners appointed in Charles II's reign had provided a precedent with a similar mandate, although they were not members of Parliament. See 19 & 20 Car. 2, c. 1. For examples of inquiries made by the Commission (and of Crown obstruction) in William's reign, see Downie, “Commission of Public Accounts,” 33, 40-47. The task of scrutinizing accounts required at least a determination as to whether deserving claimants were going unpaid. That goal is most evident in the assignment given the commissioners to investigate ship repairs performed under James, including “how the said sums of money were employed and whether the same were expended for that service.” 2 Will. & Mary, sess. 2, c. 11, sec. 9.

41. An Act for the appointing Commissioners to take examine and determine the Debts due to the Army Navy and for Transport-Service, 11 Will. 3, c. 8, secs. 1-5; see also 13 & 14 Will. 3, c. 1, secs. 1-8, 10; 1 Anne c. 24 (authorizing settlement of claims); 2 & 3 Anne c. 17, secs. 52-60 (same). Evidence that the commissioners controlled funds is in the record of their actions. See, e.g., Treasury report on petition of Robert Livingston, 1 June 1704, Calendar of Treasury Books, January 1704 to March 1705, ed. Shaw, William A. (London, 1938), 19:562–64Google Scholar; Treasury minutes on petition of Lt. Gov. Ingoldsby, 19 May 1703, Calendar of Treasury Books, 1703, ed. Shaw, William A. (London, 1936), 18:51.Google Scholar The requirement that debentures ordered by the commissioners be issued by the paymaster ofthe Army created an opportunity for Treasury intervention. See, e.g., Treasury report on Livingston, 1 June 1704, Calendar of Treasury Books, January 1704 to March 1705, 18:562-64; Leder, Robert Livingston, 186-95.

42. 12 & 13 Will. 3, c. 12 and c. 15; see also Bankers’ Case 23, 24 (Treby, J.) (identifying parliamentary power). The judicial verdict for the bankers had dictated payment ofthe arrears due them from the hereditary excise. That fund was shortly afterwards obligated by Parliament to the supply of 1700. The Treasury made a few partial payments to one creditor in 1701. It refused additional issues, perhaps because the hereditary excise was exhausted, until Parliament reserved a portion of incoming hereditary excise to pay off the debt; Parliament's remedy allowed only a much reduced rate of interest. See 12 & 13 Will. 3, c. 12, sec. 15; Horsefield, “The ‘Stop ofthe Exchequer’ Revisited,” 522-23.

According to Baxter's description of the procedure for paying court-ordered judgments, the Receipt generally drew the necessary funds from the incident accounts of the Usher of the Upper Exchequer. Baxter, Development ofthe Treasury, 132. That fund would have been overwhelmed by the size of the bankers'debt. For the ability of the Treasury to resist a court judgment, see Bankers’ Case, 23, 24 (Treby, J.).

43. See Holdsworth, English Law, 9:39; cf. Macbeath, 1 T.R. 177. The development of sovereign immunity doctrine in the eighteenth century remains obscure, lacking any adequate treatment in the scholarly literature. See Jaffe, “Suits Against Governments and Officers,” 7-8. For example, Lord Somers's opinion came to be cited as authoritative, a phenomenon that may accurately have reflected the practical realities but was at odds with the law as formally established in the Bankers’ Case. See Comyns, John, A Digest of the Laws of England, 4th ed. (London, 1800)Google Scholar, D 78, D 81, D 87 (also citing Holt, J., cont.); see also Macbeath, 1 T.R. 176-77.

44. See the discussion of suits against officers in Macbeath, 1 T.R. 172, 176-82; Jaffe, “Suits Against Governments and Officers,” 14-18.

45. The powers of the parliamentary commissioners had always been limited by executive management or obstruction of legislative orders, including those appropriations expressly made by the House. See Leder, Robert Livingston, 187-94. For the ability of the Treasury to ensure that the “Course of the Exchequer” was maintained even in case of statutorily ordered payments, see Baxter, Development of the Treasury, 132-33; Chandaman, English Publie Revenue, 290; cf. Roseveare, The Treasury, 1660-1870, 53. On the other hand, the Commons had other institutional weapons. In the Bankers’ Case, it effectively controlled the ability of creditors to recover by the way it obligated the parliamentary funds at issue. For parliamentary obligations of the hereditary excise claimed by the bankers, see Horsefield, “The ‘Stop of the Exchequer’ Revisited,” 520-23.

46. See Downie, “Commission of Public Accounts”; Thomas, House of Commons, 65-88; Brewer, John, The Sinews of Power: War, Money, and the English State, 1688–1783 (Cambridge, Mass., 1990), 21–22.Google Scholar For an analysis of the huge administrative state that supported the military undertakings of the empire in the next century, see Brewer, Sinews of Power, passim. For the prominence of the Treasury, especially under Walpole's regime and in dispensing funds for colonial administration, see Clark, Rise of the British Treasury, 1-4, 39-202.

47. The development of accountability to the Parliament took several centuries, partly be-cause that seemingly straightforward goal was in fact a complicated institutional challenge. Its accomplishment, which Roseveare dates to the latter half of the nineteenth century, required the distribution of myriad tasks (including estimating expenses, allocating funds, settling claims, disbursing money, and auditing records) to various institutions and actors legislative, judicial, and administrative. See generally Roseveare, The Treasury, 1660-1870, 46-74.

48. See, e.g., Rubini, Court and Country, 70 (reviewing Commissioners' loyalty to the Revolution settlement); see generally Brewer, Sinews of Power, 21-22; Katz, Newcastle's New York, 8-9; Morgan, Edmund S., Inventing the People: The Rise of Popular Sovereignty in England and America (New York, 1988), 17–121.Google Scholar On the financial retreat during the eighteenth century, see Thomas, House of Commons, 74, 76-77, 82-88; Roseveare, The Treasury, 1660-1870, 58-59, 63-64, 68.

49. See Royal Instructions to British Colonial Governors, 1670–1776, ed. Labaree, Leonard W. (New York, 1935)Google Scholar, sees. 264(d), 265 (money to be appropriated for “the public uses of [the] province and the support of government thereof, as by the said act or order shall be directed”); instructions cited in Lord Cornbury to Lords of Trade, 8 July 1705, Docs. Col. Hist., 4:1145.

50. See Deputy Auditor George Clarke, State of the revenue of New York, 7 October 1706, New York (Colony) Council Papers, vol. 51, New York State Archives, Albany; Calendar of Council Minutes, 1668–1783, compiled by Fernow, B. (Harrison, N.Y., 1987)Google Scholar, passim, for years 1691-1706 (hereafter cited as Cal. Coun. Min.); see also Treasury proceedings on petition of Benjamin Fletcher, 2 December 1701, Calendar of Treasury Books, 1 October 1700 to 31 December 1701, ed. Shaw, William A. (London, 1938), 16:410–11.Google Scholar The Council may on occasion have sought the opinion of the House, in the form of a report, before resolving a claim. See Leder, Robert Livingston, 86 n.24. A Crown agent, the collector and “receiver general” (one individual held both offices jointly) held all colony funds. See, e.g., Act for paying debts, 1692, Col. Laws, 1:312, 314; Act for appointing commissioners, Au-gust 1700, ibid., 430; see also Act for paying debts, 1714, ibid., 815; Smith, William Jr, The History of the Province of New-York, ed. Kammen, Michael (Cambridge, Mass., 1972), 1:98.Google Scholar

51. Lord Cornbury to Charles Hedges, 15 July 1705, Docs. Col. Hist, 4:1154-55; Instructions cited in Cornbury to Lords of Trade, 8 July 1705, ibid., 1145-46; see also Governor Hunter to Secretary St. John, 12 September 1711, ibid., 5:255-56; Cornbury to Lords of Trade, 6 November 1704, ibid., 4:1122; Spencer, Royal Government, 99.

52. See, e.g., Assembly message to governor, 5 June 1703, JGA, 1:169 (resolving that award should be made to injured soldier); Assembly resolve, 1 May 1702, ibid., 142 (resolving that commissioners of accounts should be allowed a particular per diem and “therefore desire the Governor and Council, would take care for the satisfying of them accordingly”); Assembly resolve, 23 November 1702, ibid., 155 (salary for printer).

53. See, for example, the futile efforts of Richard Greener to collect from the Executive Council twenty pounds awarded by the House “in consideration of his sufferings” after his testimony “relating to his wounds he received in the late [Leislerian] Disorders[,]... the damage he sustained, and the misery he a long time endured.” Assembly proceedings, 5 June 1703, JGA, 1:169. Greener tried to collect by petitioning the governor and Council. Greener, petition of 20 April 1703, Calendar of Historical Manuscripts in the Office of the Secretary of State, Albany, N. Y, 1664–1776, ed. Callaghan, Edmund B. O. (Albany, 1866), 2:310Google Scholar. Six months later, his widow Jane invoked their help, “her husband having died in consequence of [the] wound received.” Jane Greener, petition of 19 October 1703, ibid., 317. The executive council rejected her petition. Council proceedings, 23 October 1703, Cal. Coun. Min., 190. She, or a member of her family, submitted a last petition in 1705. See petition of 11 January 1705, Calendar of Historical Manuscripts, 2:334. Apparently, the Council never issued payment.

54. Lovejoy, David S., The Glorious Revolution in America (New York, 1972), 1-219, 334–78Google Scholar; Greene, Jack P., Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607–1788 (Athens, Ga., 1986) 7–42Google Scholar; Katz, Newcastle's New York, 10, 14-15.

55. See Greene, Peripheries and Center, 30-35; Kammen, Michael G., Deputyes and Libertyes: The Origins of Representative Government in America (New York, 1969), 9–10Google Scholar; Labaree, Royal Government, 7-8, 172-79. English subjects had the right to be represented when laws were made or taxes levied, but Parliament met that claim and could act in the name of the colonies. Thus the colonial assemblies functioned at the sufferance of the Crown, as local bodies similar to municipal councils. Labaree, Royal Government, 207, 212-17; Greene, Quest for Power, 12-13, and Peripheries and Center, 30-35. For the depth of Anglo-American disagreement over the analogy between colonial assemblies and the House of Commons, see Greene, , “Political Mimesis: A Consideration of the Historical and Cultural Roots of Legislative Behavior in the British Colonies in the Eighteenth Century,” American Historical Review 75 (1969): 337, 347–53.Google Scholar Concerning the Crown's power to authorize representative activity by either local assemblies or the British Parliament, see Black, Barbara A., “The Constitution of Empire: The Case for the Colonists,” University of Pennsylvania Law Review 124 (1976): 1157, 1174-94, 1198–1207.CrossRefGoogle Scholar

56. For instructions on permanent revenue, see Royal Instructions, secs. 279-89 (Jamaica), sec. 290 (Georgia, North Carolina), secs. 291-92 (New York). On the reduction of royal revenues, see ibid., sec. 268; Labaree, Royal Government, 21 A. On the councils' right to amend money bills, see Royal Instructions, sec. 180. On the requirement that disbursements be by gubernatorial warrant, see ibid., sec. 304. On the requirement that grants be made to the Crown, see ibid., secs. 261, 264, 265, and in the form of general, not specific, appropriations, see ibid., sec. 304 (Virginia, from 1683 to 1715), sec. 308 (Jamaica, 1771), sec. 309 (Massachusetts, 1730), and secs. 310-11 (South Carolina, 1770 and 1774). See generally Labaree, Royal Government, 274-75.

57. See generally Greene, Peripheries and Center, 7-42; Greene, “Political Mimesis”; Kammen, Deputyes and Libertyes, 3-67; Lovejoy, Glorious Revolution, passim; Murrin, John M., “The Myths of Colonial Democracy and Royal Decline in Eighteenth-Century America,” Cithara 5 (1965): 53, 61–69.Google Scholar

58. See Kammen, Deputyes and Libertyes, 46-47 Lovejoy, Glorious Revolution, 107–21, 354-64. John M. Murrin's work in particular explores how New York's representative tradition became articulated as a distinctively English commitment, a political and cultural phenomenon that exacerbated differences between its Dutch and English populations. See “The New York Charter of Liberties, 1683 and 1691,” in Roots of the Republic: American Founding Documents Interpreted, ed. Schechter, Stephen (Madison, Wis., 1990), 52-54, 55-57, 62–63Google Scholar; “The Menacing Shadow of Louis XIV,” 35-41, 55-56; and “English Rights as Ethnic Aggression: The English Conquest, the Charter of Liberties of 1683, and Leisler's Rebellion in New York,” in Authority and Resistance in Early New York, ed. Pencak, William and Wright, Conrad (New York, 1988), 56–94.Google Scholar

59. Historical Statistics of the United States: Colonial Times to 1970 (Washington, D.C., 1975)Google Scholar, Part 2, 1171. Of the 5,000 white males, only those with an estate freehold worth at least forty pounds or granted freemanship by a municipal corporation qualified to vote, probably some 2,500 to 3,000 people. See Kammen, Michael G., Colonial New York: A History (New York, 1975), 207, 209.Google Scholar For the geography and heterogeneity of New York, see Lovejoy, Glorious Revolution, 99, 100, 104; Tully, Alan, Forming American Politics: Ideals, Interests, and Institutions in Colonial New York and Pennsylvania (Baltimore, 1994), 14.Google Scholar

60. Kammen, Colonial New York, 69-72, 105; Lovejoy, Glorious Revolution, 1-9, 106-21, 208-11; Murrin, “Charter of Liberties,” 47-58. For a contemporary view, see Cornbury to Hedges, 15 July 1705, Docs. Col. Hist., 4:1150-55.

61. The rebellion displaced royal authority from May 1689 until March 1691. Despite their protestations of loyalty to William and Mary, the Leislerians were turned out and prosecuted when officials sent by William arrived in New York. For the range of interpretations that Leisler's Rebellion has evoked, see Kammen, Colonial New York, 119-27 (on the ethnic insecurity of the old Dutch settlers, vehement anti-Catholicism and fears of a papal conspiracy, conflict between Long Island interests and Dominion rule, and strife between farmers and merchants); McAnear, Beverly, “Politics in Provincial New York, 1689–1761” (Ph.D. diss., Stanford University, 1935), 69–113Google Scholar (on ethnic and economic tensions that pitted the Dutch and some populists against a controlling circle of New York City merchants); Murrin, “Charter of Liberties,” and “The Menacing Shadow of Louis XIV” (on the Rebellion within the larger context of European tensions, including Dutch “Orangeite” sentiment and Calvinist commitment versus bourgeois Protestant and Catholic norms); Tully, Forming American Politics, 17-27 (on religious difference and complexity of other divisions).

62. See Tully, Forming American Politics, 17-27; Lovejoy, Glorious Revolution, 334-40; Osgood, Herbert L., The American Colonies in the Eighteenth Century (New York, 1924), 2:49–62Google Scholar; Spencer, Royal Government, 9-10, 37, 41, 44, 85.

63. See, e.g., Act for regulating the damages, 1691, Col. Laws, 1:262; see generally Osgood, American Colonies, 1:229-30, 245-53, 275-77, 281-82; Spencer, Royal Government, 5, 7, 18-22, 38-40, 47, 53-55; Spencer, “Rise of the Assembly,” 155-58.

64. While Bellomont may have intended to avoid playing into the partisan strife, his reforms of land-grant practice and privateering cut too deeply into Anti-Leislerian territory to avoid antagonizing that faction. Osgood, American Colonies, 1:272-92; Spencer, Royal Government, 8-9, 16, 20, 49-50, 81-82, and “Rise of the Assembly,” 160-62. Leislerians celebrated their relative power most dramatically by orchestrating the symbolic reinterment with dignity of their leader Jacob Leisler, who had been given an ignominious burial after his execution in 1691. Osgood, American Colonies, 1:275.

65. For the character of Nanfan's administration, see sources cited at note 61. Nanfan's administration followed a brief Anti-Leislerian interim under William Smith's presidency as senior Council member. Spencer, Royal Government, 40-43. For Cornbury's allegiances, see, e.g., Cornbury to Lords of Trade, 29 Sept. 1702, Docs. Col. Hist., 4:999; Cornbury to Lords of Trade, 23 June 1702, ibid., 960. In one of his first initiatives after the elections returned Anti-Leislerians to office, Cornbury procured the repeal of the previous assembly's legislative output, an act itself later repealed by a Crown anxious to dampen partisan rancor. See Act for the repealing several acts, 1702, Col. Laws, 1:523, with Headnote. Livingston's observation is in his letter to Mr. Lowndes, 2 June 1707, Calendar of Treasury Papers 1702–1707, ed. Redington, Joseph (London, 1874), 3:513.Google Scholar

66. For a historical review of sovereign immunity, see Holdsworth, English Law, 9:7-32. The immunity of the Crown apparently extended to the Governor in his official capacity. See, e.g., Cornbury to Lords of Trade, 17 June 1704, Docs. Col. Hist., 4:1098; see also Earl of Bellomont to Lords of Trade, 24 October 1698, ibid., 410 (implying gubernatorial immunity in other doctrinal areas).

67. Act for establishing courts, 1691, Col. Laws, 1:229, 231. Upon expiration of its statutory authorization, the Supreme Court of Judicature was renewed by executive proclamation in 1699, a status that haunted it throughout New York's colonial history. See Sosin, Jack M., The Aristocracy of the Long Robe: The Origins of Judicial Review in America (New York, 1989), 133.Google Scholar

68. See, e.g., Act for defraying charges, 1691, Col. Laws, 1:237; Act for £2000, 1691, ibid., 241-42; Act for raising 220 men, 1692, ibid., 285-86; Act for £2000, 1702, ibid., 513; Act for defraying charges, 1703, ibid., 539-42; Act for £3000, 1706, ibid., 593-97; Act for defense fund, 1706, ibid., 600. For a review of methods of enforcing the revenue system, see Anderson, Samuel, “Taxation in Colonial New York, 1691–1755” (Ph.D. diss., University of Washington, 1953), 125, 127-28, 144-45, 155, 163, 174, 226–27.Google Scholar For prosecutions of those owing quitrents, see Osgood, American Colonies, 2:116, 428 and n.3; see also Opinion of Attorney General Northey, 12 March 1703, Docs. Col. Hist., 4:1033 (noting ability of Crown to bring royal officials to account for moneys received).

69. The first serious court challenge to the pervasive authority of colonial or state legislatures occurred, as far as I am aware, in 1781. It was brought by a merchant who attached property of Virginia in a Pennsylvania court. Nathan v. Virginia, 1 U.S. 77 (Common Pleas, Phil. County, 1781). The challenge failed. Chisholm v. Georgia, 1 U.S. 419 (1793), a suit against the state of Georgia in federal court, probably represents the first successful breach. The judicial advance made in that case was blocked by the ratification of the Eleventh Amendment. In 1781, the New York legislature did, on its own initiative, delegate appellate authority to review the settlement of some disputes over depreciated accounts to the Court of Chancery. See Laws of the State of New York (Albany, 1886), 1781, c. 50, 376.Google Scholar

70. In particular, a temporary Leislerian majority began investigating Governor Fletcher's finances by reviewing accounts of taxes, revenue, and public debts. Crown officials refused to cooperate with the legislators or with those appointed by the assembly. See Spencer, Royal Government, 116, and “Rise of the Assembly,” 159-60; MeAnear, “Provincial New York,” 151-52. A close balance of power in the House allowed legislators to continue to pressure Fletcher in return for funds through 1695 and may have inspired some effective oversight later even by Fletcher's allies who whitewashed the record upon their return to power. See McAnear, “Provincial New York,” 154-55; Osgood, American Colonies, 1:256, 258.

71. The first of the additional revenue acts did not indicate the preferences of the assembly; it trustingly granted funds to “be only appropriated and applyed to the payment of such debts due for the support of the government aforesaid.” Act for paying debts, 1692, Col. Laws, 1:312-13. The next several acts allocated funds both to residual debts and to particular prospective expenses. See Act confirming an act for paying debts, 1694, ibid., 331; Act confirming an act for satisfying debts, 1694, ibid., 342. In 1696, the assembly specified eleven debts for repayment, including several “for the payment thereof the additional duty was first raised.” Act confirming an act for paying debts, 1696, ibid., 367-69. The act required creditors to register their debts in an attempt to enforce the payments, including those that had been ineffectually stipulated in earlier acts. Ibid; see also Act for granting an additional duty, 1701, ibid., 467, 469-70 (awarding amounts for services by particular officials; act repealed).

72. See Act for appointing commissioners, August 1700, appointing commissioners because “some persons pretend great sumes of mony yet to remaine unpaid and that the funds granted in generall assembly have been not sufficient to defray the same,” ibid., 430. For the initial statute and its successors, see Acts for appointing commissioners, August 1700 and November 1700, ibid., 430-32,441-44; Act for continuing commissioners, 1702, ibid., 493. The statute empowered the commissioners with necessary faculties to investigate and determine claims—the authority to order records from royal officials, to subpoena witnesses, and to examine them under oath. Ibid.; see also Act for appointing commissioners, November 1700, ibid., 442-43.

73. The commissioners were Leonard Lewis, Abraham Governour (Speaker of the House), Rip Van Dam, Cornelius Sebring, and David Provoost, all staunch Leislerians, or at least sympathetic to the cause. Acts for appointing commissioners, August and November 1700, ibid., 431, 442. Spencer, Royal Government, 117. All were members of the assembly except merchant Rip Van Dam. See Bonomi, Patricia U., A Factious People: Politics and Society in Colonial New York (New York, 1971Google Scholar), App. B. One of the principal targets of the commissioners' investigations was Robert Livingston, who had resisted Leislerian control of Albany. See Act to oblige Robert Livingston, 1701, Col. Laws, 1:461-66; Leder, Robert Livingston, 57-76. On the partisan settling of claims, see also Act for granting an additional duty, 1701, Col. Laws, 1:467,469-70 (rewarding particular officers); see generally Spencer, Royal Government, 115-16.

74. Act for paying debts, 1702, Col. Laws, 1:479, 485. Claims transmitted to and allowed by a more centralized group of commissioners, also Leislerians, were certified to the royal collector and receiver general, who was prohibited from issuing funds levied by the act except according to the debts allowed by the commissioners. Ibid., 479,485-86. The commissioners appointed to receive claims from the county commissioners were Abraham de Peyster, Samuel Staats, Robert Walter, and William Atwood. Ibid., 486. For their partisan affiliation, see Spencer, Royal Government, 115-16.

75. The New York statute, “An Act for appointing & enabling Com[missione]rs to examine & take & state ye publick acco[un]ts of this Province,” August 1700, authorized its appointees to take the accounts “of all money of the said publick revenue of this province.” Col. Laws, 1:430-31. The English statute, “An Act for appointing and enabling commissioners to examine take and state the publicke accounts of the kingdom,” authorized its appointees to take the accounts “of all moneys of the publicke revenue of the Crown.” 2 Will. & Mary, sess. 2, c. 11, sec. 1.

The provincial commissioners were to examine accounts of revenue distributed “and every part thereof to any person or persons whatsoever or for what use or uses soever.” Col. Laws, 1:431. Their English counterparts were to examine accounts of revenue collected “by any person or persons whatsoever and how and in what manner and by whome and to whome the same have been ordered paid or disposed.” 2 Will. & Mary, sess. 2, c. 11, sec. 1.

76. See 2 & 3 Anne c. 17. New York troops and creditors, who had claims dating to 1691, warranted a mention in the renewal of the army commissioners' authority in 1703 because “the rolls of several musters of the said forces ha[d] been lost at sea or otherwise destroyed or mislaid,” delaying their prompt settlement. Ibid., sec. 56.

77. See New York Council to Lords of Trade, 10 March 1701, Calendar of State Papers, Colonial Series. America and West Indies, 1701, ed. Headlams, Cecil (London, 1910), 119–120Google Scholar (hereafter cited as Calendar of State Papers, America); Cornbury to Lords of Trade, 17 June 1704, Docs. Col. Hist., 4:1097-98.

78. The merchants included Robert Livingston, Peter Schuyler, and Stephen Van Cortlandt. See Livingston to Lords of Trade, 22 August 1701, Calendar of State Papers, America (1701), 461-62; Treasury report on Livingston, 1 June 1704, Calendar of Treasury Books, January 1704 to March 1705, 19:562-64. For their membership on the Council, see Bonomi, Factious People, App. D., 313-14. Former administrators Fletcher and Ingoldsby had also supported the troops they commanded. Digest of New York accounts sent to Lords of Trade, 8 November 1698, Calendar of Treasury Papers, 1697–1701/2, ed. Redington, Joseph (London, 1871), 2:239.Google Scholar Others who made advances included William Stamp, Peter Fauconnier, and several captains of Independent Companies (William Hyde, James Weems). See respectively ibid., (1697-1702), 2:540 (Stamp, Fauconnier, 22 November 1701); ibid., (1702-1707), 3:130 (Fletcher, Ingoldesby, Hyde, 22 March 1703); ibid., (1697-1702), 2:249 (Hyde, 3 December 1698); ibid., 555 (Weems, 8 January 1702). The Treasury rejected a petition from Fletcher and others in early 1703 on the ground that their pay was more appropriately adjusted by the Commissioners for stating the accounts of the army. Ibid., (1702-1707), 2:130 (22 March 1703).

79. In fact, in 1702, several Council members who had advanced funds were appointed commissioners. Act for paying debts, 1702, Col. Laws, 1:486 (A. DePeyster, S. Staats, R. Walter). William Atwood, another commissioner, joined the Council in 1701. Ibid. For Council membership, see Bonomi, Factious People, App. D, 314.

80. Those employed under the Andros regime predominantly became Anti-Leislerians. Tully, Forming American Politics, 18, 22-23. James Graham, an Andros associate, was the Speaker of the New York assembly for most of its first decade. See Kammen, Colonial New York, 139; Bonomi, Factious People, App. B. The Anti-Leislerians dominated the New York Assembly during the administration of Lord Cornbury. See below, 290. Accounts of the lives of New York merchants describe their efforts to get paid by the Crown through conventional demands on the ministry, including petitions to the Board of Trade, Privy Council, and Treasury. See, e.g., Leder, Robert Livingston, 81-85, 89-91, 103-16, 137-38, 185-99; Clark, Rise of the British Treasury, 10-12. I have seen no references indicating that any New Yorker creditors tried to use the courts, either before or after the Bankers' Case. Caleb Heathcote, one such creditor, is a good example of a provincial with well-connected family in England; his brother Gilbert was a successful trader, banker, and member of Parliament. For Gilbert's career, see Dixon R. Fox, Caleb Heathcote, Gentleman Colonist (1926), 5-6; Baxter, Development of the Treasury, 183. On the dissemination of opposition thought more generally, see Greene, “Political Mimesis,” 347-53.

81. The dimension of the credit crisis at issue in the Bankers' Case should not obscure the analogous character of the legislative authorities claimed in England and America. In both places, legislators asserted the power to determine a wide range of claims formerly traditionally resolved by administrative or judicial officers. The claims in New York included many demands for the repayment of financial advances to the colony. See, e.g., Act for raising a fund, 1708, Col. Laws, 1:628-30; Act for the Paying and Discharging the Several Debts (New York, 1715), (Evans 1771), 160 (identifying repayment of “money… advanced”), 166 (repayment of amounts advanced by Governor Robert Hunter). In addition, repayment would eventually be made from both ordinary and extraordinary revenues: thus, the “Act for the Paying and Discharging the Several Debts” was funded out of the excise, conventionally part of the ordinary revenue. See Act for laying an excise, 1713, Col. Laws, 1:785. Finally, the dimension of the money controlled by the colonial assembly would eventually be huge, relative to colonial revenues. See below, 310-11.

82. Act for paying debts, 1702, Col. Laws, 1:479, with Headnote; Act for the repealing [sic] several acts, 1702, ibid., 523, with Headnote.

83. Cornbury to Lords of Trade, 3 May 1702, Docs. Col. Hist, 4:955; Tully, Forming American Politics, 53.

84. Act for appointing commissioners, 1702, Col. Laws, 1:518.

85. The language is statutory. Act for granting £2000, 1702, ibid., 508. For the legislators' indictment of their predecessors and an account of their deliverance by Lord Cornbury, see Assembly address to Queen, 26 November 1702, JGA, 1:156-57.

86. Nicolls had long been a force in New York politics as part of the powerful bloc of merchants who had dominated the province since the early 1680s. Like his father, Matthias Nicolls, he had held office under Thomas Dongan, who had governed the province before the extension of the Dominion. Lovejoy, David, “Equality and Empire: The New York Charter of Libertyes, 1683,” William and Mary Quarterly, 3d sen, 21 (1964): 507CrossRefGoogle Scholar; Earl of Bellomont to Lords of Trade, 8 May 1698, Docs. Col. Hist, 4:306-10. See generally Lovejoy, Glorious Revolution, 113-14, 118-19, 321, 338, 355-63; McAnear, “Provincial New York,” 84, 133-34, 138; Bonomi, Factious People, 86. For the election dispute involving Nicolls, see McAnear, “Provincial New York,” 187-91; see also Cornbury to Lords of Trade, 18 May 1702, Docs. Col. Hist., 4:958-59.

87. In New York, ordinary revenues included duties on trade (the “customs”), the excise, quitrents, fines and forfeitures, and weigh-house duties. Spencer, Royal Government, 99. Extraordinary taxes were most commonly general property taxes. Ibid., 108; see also Bonomi, Factious People, 79-80. The distinction between the two kinds of revenue was not airtight; legislators were prone to take wartime needs into account in granting “ordinary revenues” as well. See, e.g., Act establishing a revenue, 1692, Col. Laws, 1:288.

Recent estimates are that ordinary revenues between 1691 and 1715 averaged 4000 pounds/year; extraordinary revenues averaged 2,700/year. Bonomi, Factious People, 80 n.33. But Spencer estimated that during the two decades after 1691 extraordinary levies for defense “considerably exceeded” the amount raised in ordinary revenue. Royal Government, 107-8, 110. The levy of ordinary revenue was itself beset by problems, including poor collection systems, graft, and wartime interruptions in trade. Ibid., 100-102.

88. See Revenue act, 1691, Col. Laws, 1:248 (two-year term); Revenue act, 1692, ibid., 287, 288 (two-year term); Revenue act, 1693, ibid., 325, 326 (five-year term); Revenue act, 1699, ibid., 419 (six-year term); Revenue act, 1702, ibid., 517 (three-year term). The assembly's amenability in granting multiyear levies is, of course, a relative characterization, given Crown demands for revenues on a permanent or near-permanent basis. See Spencer, Royal Government, 103. The progressive discouragement of royal officials who pressed futilely in the 1700s to obtain a permanent revenue in New York is reflected in a series of royal instructions; the first demands a permanent revenue, the next versions acknowledge that temporary measures will frequently be necessary, the last abandons the call for a permanent revenue altogether. See Royal Instructions, secs. 291-92, with variations; see generally Katz, Newcastle's New York, 154, 156-57, 187-88.

89. See Act for continuing the revenue, 1702, Col. Laws, 1:517. The partisan nature of the grant to cement an alliance with the new governor by a gratuitous commitment of trade revenues is especially clear against the background of earlier events. The Anti-Leislerians who dominated the Ninth Assembly were on record opposing customs-based revenues; William Nicolls in particular had orchestrated a provincewide campaign against the Leislerians under the Bellomont regime on a pledge to reduce such levies. See McAnear, “Provincial New York,” 172-73, 200. An economic downturn distressed New York and had already damaged its trade. Kammen, Colonial New York, 141, 143-45, 152.

90. Act for granting £2000, 1702, Col. Laws, 1:508, 509. To compare the amount of de-tail in earlier extraordinary revenue acts, see, e.g., Act for raising 200 men, 1692, ibid., 272, 273; Act for raising £6000, 1693, ibid., 315, 316; Act for raising £864, 1695, ibid., 354-56.

91. See, e.g., Smith, History of the Province, 1:130; see generally Osgood, American Colonies, 2:63, 76-79; Tully, Forming American Politics, 53. See also Receiver General Thomas Byerly's rather poignant account of the “many indignities and hardships” put upon him for attempting to maintain accountability under the Cornbury regime, Byerly to Lords of Trade, 13 December 1707, Docs. Col. Hist, 5:28-29. On Fletcher's corruption, see, e.g., Leamon, James S., “War, Finance, and Faction in Colonial New York: The Administration of Governor Benjamin Fletcher, 1692–1698,” (Ph.D. diss., Brown University, 1961)Google Scholar.

92. Cornbury speech to Assembly, 20 October 1702, JGA, 1:145; Act for appointing commissioners, 1702, Col. Laws, 1:518; see also Act to supply the defects, 1703, ibid., 548 (expanding powers and extending term of commissioners). Cornbury's self-protective aims are evident in, e.g., Cornbury's suspension of Thomas Weaver, 2 October 1702, Docs. Col. Hist., 4:1012; Cornbury to Lords of Trade, 27 September 1702, ibid., 971-75. The commissioners that Cornbury allowed to be appointed were to examine accounts only “until the first day of the sessions of this present assembly.” Act for appointing commissioners, 1702, Col. Laws, 1:518. For contemporary descriptions of the debt problem, see Cornbury to Lords of Trade, 27 September 1702, Docs. Col. Hist., 4:973; Robert Quary to Lords of Trade, 16 June 1703, ibid., 1052; Richard Ingoldesby to Lord Nottingham, 14 June 1704, ibid., 1090; Cornbury to Lords of Trade, 17 June 1704, ibid., 1098-99.

93. The self-consciously legislative nature of the commission would comport with its English precedent, the Commissions of Public Accounts. The act of 1702 identified a report to the House as the method by which “consideracon may be had in the assembly of the [financial] matters aforesaid, as for the peace and welfare of this colony shall be thought convenient.” The commissioners appointed were to be paid by the “General Assembly” as “shall seem meet” for their work, as were their predecessors appointed by the Leislerians. Act for appointing and enabling commissioners, 1702, Col. Laws, 1:519; see also Acts for appointing commissioners, August and November 1700, ibid., 432, 443-44. That method of compensation, presumably designed to heighten the commissioners' accountability to the House, created predictable difficulty in ensuring the commissioners' payment. See Assembly resolve directing the governor to make an award for “necessary expenses” to the commissioners, 5 June 1703, JGA, 1:169.

94. The commissioners were Rip Van Dam, Stephen De Lancey, John Barberie, Thomas Wenham, and David Jamison. Act for appointing commissioners, 1702, Col. Laws, 1:518. Wenham had been prosecuted for participating in protests against the Leislerians and outlawed after he fled. McAnear, “Provincial New York,” 193, 195. Jamison had fled the province during a flurry of vindictive assembly action that affected his title to certain lands. Ibid., 191, 194. Rip Van Dam, whose politics were flexible, was the only commissioner carried over from the previous group.

95. The commissioners' report survived the colonial period only to be destroyed in the Albany statehouse fire of 1911. Charles Spencer, who wrote before the fire, both describes and quotes from the document. See Report of the Commissioners, 1703, quoted in Spencer, Royal Government, 117-18; Submission of report, 5 May 1703, JGA, 1:162.

96. Cornbury speech to Assembly, 20 October 1702, JGA, 1:145; Report of the Commissioners, 1703, quoted in Spencer, Royal Government, 117-18.

97. Massachusetts Charter of 1691, The Federal and State Constitutions, Colonial Charters, and other Organic Laws, ed. Thorpe, F. N. (Washington, D.C., 1909), 3:1882Google Scholar (granting assembly power to appoint “all civill officers” other than those appointed by Crown); Evarts Greene, The Provincial Governor, 183-84. For the competition between New York and Boston on the commercial level, see, e.g., McAnear, “Provincial New York,” 79-81. Virginia also got control of a treasurer in 1691. See An act appointing a treasurer, April 1691, The Statutes at large: Being a Collection of all the Laws of Virginia, ed. Hening, W. W. (Philadelphia, 1823), 3:92–94.Google Scholar During Leisler's Rebellion, Peter De La Noi had acted as “receiver general” for the Leislerians. See An Act for the Paying and Discharging the Several Debts (New York, 1715), (Evans, 1771), 179. It is possible that that experience made more conceivable an office in competition with the Crown receiver general who subsequently held royal funds.

98. Assembly addresses to Queen and governor, 16 June 1703, JGA, 1:171; Assembly address to governor, 27 May 1703, ibid., 166; Assembly address to governor, 16 June 1703, ibid., 170-71 (emphasis in original).

99. Assembly request to governor for accounting, and Assembly-Council exchanges on revenue act, 10 June, 12 June, 14-16 June 1703, ibid., 169, 170-71; Assembly address to governor, 16 June 1703, ibid., 170-71. Meanwhile, the House attempted to build some accountability into the stripped version of the revenue measure, requiring that accounts of the newly raised funds be distinctly kept and constantly available to assembly scrutiny. See Bill for raising £1500, 1703, Col. Laws, 1:550, 552-53.

100. The assembly at first renewed the term of the commissioners of accounts in June 1703 and expanded their powers without extending their scope of inquiry to Cornbury's term. Act to supply the defects of an act for appointing commissioners, 1703, Col. Laws, 1:548, 549. Smith's eighteenth-century account dates the beginning of the assembly's suspicions of Cornbury to 1703. History of the Province, 1:117, 122. On New York's financial crisis, see Kammen, Colonial New York, 141, 143-45, 152; Spencer, Royal Government, 123; see, e.g., Assembly address to governor, 8 June 1704, JGA, 1:189. England was at war from 1689 to 1697 (King William's War) and from 1702 to 1713 (Queen Anne's War). Although the colony was too impoverished to contribute heavily to the wars, defense appropriations were relatively burdensome to the colonial population. See generally Waller, George M., “New York's Role in Queen Anne's War, 1702–1713,” New York History 33 (1952): 40–53.Google Scholar

101. Cornbury's speech to Assembly, 13 April 1704, JGA, 1:175-76; Assembly's address to governor, 19 April 1704, ibid., 176; see also Assembly resolve, 3 November 1704, ibid., 193-94 (assembly scheduling examination of debt appropriations so they would be able to “inform themselves of the reasons, why it is become absolutely impossible, that these charges cannot be paid out of [the existing] fund, as well as the occasion of the decrease of the same revenue”).

102. Smith, History of the Province, 1:130. As Smith continues,

In spite of his noble descent, his behaviour was trifling, mean, and extravagant.

It was not uncommon for him to dress himself in a woman's habit, and then to patrole the fort in which he resided. Such freaks of low humour exposed him to the universal contempt of the people; but their indignation was kindled by his despotick rule, savage bigotry, insatiable avarice, and injustice, not only to the publick, but even his private creditors. For he left some of the lowest tradesmen in his employment un-satisfied in their just demands.

Ibid., 130-31. That Lord Cornbury cross-dressed in the Queen's regalia—a story that has persisted to the present day—may have been a rumor coined by opponents deploying the cultural taboo to destroy his reputation. See Robert Livingston to Mr. Lowndes, 2 June 1707, Calendar of Treasury Papers, 1702-1707, 3:511-13; Bonomi, Patricia U., “Lord Cornbury Redressed: The Governor and the Problem Portrait,” William and Mary Quarterly, 3d sen, 51 (1994): 106CrossRefGoogle Scholar; “Nothing Like a Dame,” New York Times, March 4, 1997 (editorial).

103. See Assembly proceedings, 20, 22, 27 May and 1, 8, 10, 14-15 June 1704, JGA, 1:182-86, 188, 189, 190. The House took the extremely rare step of reprinting the committee's report identifying the overpluses in the House Journal. See Accounts of the militia, 22 May 1704, ibid., 182-84; Council message to Assembly, 27 May 1704, ibid., 185 (identifying overplus in report as the one at issue in levy); see also maneuvering over the same issue in Assembly proceedings, 19 October and 4 November 1704, ibid., 192, 194; Committee report on revenue, 25 June 1706, ibid., 212; Cornbury speech to Assembly, 27 June 1706, ibid. The House conducted its accounting activities by calling in and scrutinizing the accounts of the receiver general. See generally Assembly proceedings, 13 April to 14 November 1704, ibid., 175-94, passim.

104. Cornbury to Lords of Trade, 8 July 1705, Docs. Col. Hist., 4:1145; Bonomi, Factious People, App. C; see generally Assembly proceedings, 14 June 1705 to 27 September 1706, JGA, 1:195-213, passim, particularly Assembly message to Council, 10 October 1705, berating royal officials for failing to transmit information, ibid., 206. In October 1705, the House shunned a particular request from the governor to repay those who had advanced money to support an emergency sweep at sea for rumored privateers. The House insisted that the claimants “do bring in their several accounts and demands, to the clerk of this House, that the House may be enabled to proceed further.” Governor's request, 26 July 1705, ibid., 202; Assembly order, 3 October 1705, ibid., 205. Cornbury repeatedly pressed the assembly for additional debt repayment bills. See Cornbury speeches to Assembly, 13 April 1704, 14 June 1705, ibid., 175, 196. The Council sent the assembly a report on several defense charges, asking that “some expedient may be found, for the payment thereof.” Council report, 2 November 1704, ibid., 193. Those with a special claim on the assembly, its door-keeper, printer, and clerk, pleaded with it that “the revenue being in a low condition, is not capable to support the necessary charges of the government” and “praying that the House would consider of some way, so that their salaries may be duly paid them.” Petition to Assembly, 21 October 1704, ibid., 193. On the debt, see, e.g., Cornbury to Lords of Trade, 27 September 1702, Docs. Col. Hist., 4:913-14; Cornbury's reasons for suspending Thomas Weaver, 2 October 1702, ibid., 1013; Cornbury to Lords of Trade, 12 December 1702, ibid., 1019-20; Robert Quary to Lords of Trade, 30 May 1704, ibid., 1083-84. For a commentary on the dismal state of the province, see Livingston to Mr. Lowndes, 2 June 1707, Calendar of Treasury Papers, 1702-1704, 3:511-13.

105. Assembly resolution passed, “nemine contradicente,” 20 June 1705, JGA, 1:197; Assembly proceedings 3, 14, 26, 28, 30 July, 2 August, 26 September, 3-6 October, 10 October 1705, ibid., 199, 201, 202-6; Assembly message to Council, 12 October 1705, ibid., 207. As recently as 1703, the House had accepted amendments to money bills, including, for example, the “Fifteen hundred pound” levy from which the Council had initially deleted the treasurer provision. Assembly proceedings, 16June 1703, ibid., 170. The House first seized on the argument that the Council could not interfere with the terms of a money bill in 1704, apparently in order to defend assembly calculations of “overpluses” and other conditions. See above, note 101. The House persisted in 1705 despite a message received from the Board of Trade condemning its exclusion of the Council. See Cornbury speech to Assembly, 26 July 1705, and Extract of letter from Lords of Trade, 28 July 1705, ibid., 202-3. An attempt by the Council to break the deadlock by repassing an appropriations bill with its amendments evoked House outrage and a warning of “ill consequence” that would flow from such a method. See Assembly message to Council, 12 October 1705, ibid., 207.

106. Cornbury speech to Assembly, 27 June 1706, ibid., 212; see also Cornbury speech to Assembly, 29 May 1706, ibid., 208 (warning assembly that without defense funds “this place will become a prey to a powerful enemy, who can design no less than to lay it waste and destroy it, as they have done [in the island colonies]”); Cornbury to Lords of Trade, 3 October 1706, Docs. Col. Hist, 4:1183.

107. Cornbury speech to Assembly, 29 May 1706, JGA, 1:208; Assembly orders, 30 May, 1 June 1706, ibid., 209. Cornbury continued to berate the House for inadequacy in examining his finances and the scandalous accusations of mishandling made by its members. Cornbury speech to Assembly, 27 June 1706, ibid., 212-13.

108. George Clarke, State of the revenue of New York, 1706; see also Observations of Mr. Cockerill, received 14 November 1709, Docs. Col. Hist., 5:111; Chief Judge Mompesson, Maladministration of the Province of New-York—1709, ibid., 406-11.

109. See Cornbury speech to Assembly, 27 September 1706, JGA, 1:213; Lords of Trade to Cornbury, 4 February 1706, Docs. Col. Hist., 4:1171-73. As the Lords pointedly noted, “Now having given your Lord[shi]p an account of what we think amiss on the part of the Assembly, we hope no occasion has been given by the Governt for any just diffidence.” Ibid., 1172. Charles Spencer canvassed the evidence against Cornbury and found it substantial. See Spencer, “The Cornbury Legend,” Proceedings of the New York State Historical Association (n.p., 1914), 13:309-20, and Royal Government, 121-26.

110. Assembly resolve, 26 May 1704, JGA, 1:185; Cornbury speech to Assembly, 1 June 1704, ibid., 186.

111. Smith, History of the Province, 1:117.

112. Cornbury to Charles Hedges, 15 July 1705, Docs. Col. Hist., 4:1154-55; Cornbury speech to Assembly, 1 June 1704, JGA, 1:186; see also Cornbury to Lords of Trade, 6 November 1704, Docs. Col. Hist., 4:1122. Alan Tully implies that the early prerogative claims were overblown. Tully, Forming American Politics, 50-51. To the contrary, Cornbury's assertions reflected the formal imperial model, the powers actually exercised by the early New York governors, and the mercantilist priority of royal officials; the same views were vehemently asserted long into the century. Smith, History of the Province, 1:98; Robert Hunter to Secretary St. John, 12 September 1711, ibid., 5:255-56; Kennedy, Essay on the Government of the Colonies, 17-18; Lord Hillsborough to Governor Moore, 12 October 1768, Docs. Col. Hist., 8:100; see generally, Murrin, “Charter of Liberties,” and “The Menacing Shadow of Louis XIV.”

Barbara Black concludes that as a matter of conventional British constitutional law the Crown had a stronger case for the subordinate status of provincial assemblies than the colonists did for the assemblies’ authority on the eve of Revolution. See Black, “Case for the Colonists,” 1162-74. This is not to say that all mainland British agreed with the model or that royal enforcement of the model was consistent. Indeed, Black argues that if one is willing to take a more contextual, evolutionary approach to the empire's constitutional law, the colonists could assert their immunity from parliamentary interference precisely because the rise of the colonial assemblies eventually redefined the constitution of empire. Ibid., 1174-1211.

113. As Cornbury put it in describing the mercantile interest, “[t]hese colloneys, which are but twigs belonging to the main tree (England,) ought to be kept intirely dependent upon and subservient to England.” Cornbury to Hedges, 15 July 1705, Docs. Col. Hist., 4:1151; see also Cornbury to Lords of Trade, 8 July 1705, ibid., 1145-46. Cornbury's response to the deduction of overpluses is in his speech to Assembly, 1 June 1704, JGA, 1:186; see also Cornbury speech to Assembly, 29 May 1706, ibid., 208 (assuring assembly that “you may be sure; that whatsoever you shall think fit to give [for emergency funds], shall be applied to the uses for which you give it, and to no other”).

114. See Cornbury speech to Assembly, 1 June 1704, JGA, 1:186; Cornbury speech to Assembly, 4 August 1705, ibid., 203-4; Cornbury speech to Assembly, 26 September 1705, ibid., 204; Cornbury speech to Assembly, 27 June 1706, ibid., 212; Council message to Assembly, 6 October, 1705, ibid., 205; Cornbury to Lords of Trade, 8 July 1705, Docs. Col. Hist., 4:1145-47; Cornbury to Hedges, 15 July 1705, ibid., 1153-54; see also Assembly address to governor, 16 June 1703, JGA, 1:170-71.

115. The men who incited the assembly, he wrote, “never were nor ever will be faithful to the Queen nor true to their country.” Cornbury to Lords of Trade, 8 July 1705, Docs. Col. Hist., 4:1146-47. On expansive Stuart claims to sovereignty, see, e.g., Kenyon, J. P., The Stuart Constitution 1603–1688 (Cambridge, Eng., 1966), 7–20Google Scholar; Gough, J. W., Fundamental Law in English Constitutional History (Oxford, 1961), 48–79.Google Scholar

116. Governor Robert Hunter speech to Assembly, 17 September 1712, JGA, 1:321.

117. Bill for raising £1500, 1703, Col. Laws, 1:550, 552-53; Bill to Raise Seventeen Hundred Pounds, 1705, folio 14, quoted in Cornbury to Lords of Trade, 8 July 1705, Docs. Col. Hist., 4:1146; Act for refunding £711, 1708, Col. Laws, 1:627.

118. Assembly message to Council, 10 October 1705, JGA, 1:206; see also Observations of Mr. Cockerill, received 14 November 1709, Docs. Col. Hist., 5:111 (complaint by royal officials identifying chronic double-funding of certain positions). The long-running dispute between Cornbury and his operatives and the apparently more honest receiver general, Thomas Byerly, discredited the royal accounting system in the eyes of the assembly. See Lewis Morris to Secretary of State, 9 February 1707, Docs. Col. Hist., 5:37 (describing assembly efforts to penetrate the dispute); see also Thomas Byerly to Lords of Trade, 13 December 1707, ibid., 28; Cornbury to Lords of Trade, 1 July 1708, ibid., 56; Observations of Mr. Cockerill, received 14 November 1709, ibid., 111-12; see generally Osgood, American Colonies, 2:77-82; Smith, History of the Province, 1:128-29, 131 n.31 (reviewing “misapplication” concern by assembly in various episodes).

119. Assembly address to governor, 8 June 1704, JGA, 1:188; Assembly message to Council, 10 October 1705, ibid., 207. Other statutory innovations included the subtraction of overpluses from new revenue and the dictation of more specific statutory terms. See Assembly address to governor, 8 June 1704, ibid., 188. At one point, the legislators tried to disable anyone found guilty of diverting or misapplying money from using the courts, from making or benefiting from wills, and from receiving a royal pardon. See Cornbury to Lords of Trade, 8 July 1705, Docs. Col. Hist., 4:1146.

120. See Act for satisfying the debts, 1692, Col. Laws, 1:312-13 (imposing levy because “all such that have advanced mony for the support of the government should be well and truly payd and satisfyed”; directing proportionate payment of creditors); Act confirming an act for satisfying the debts, 1696, ibid., 367, 368 (identifying particular “debt[s] due” from colony that are to be “compleatly paid and satisfyed”); Act for raising an additional duty, 1699, ibid., 403 (levying funds for payment of debts “being willing that ye creditt of ye governm't should not sinke but ye same may be supported & those who have been forward to creditt & assist ye goverm't upon sundry emergencies may be lawfully recompensed and sattisfied for such their service”).

121. Act for appointing commissioners, 1702, ibid., 518; see also Smith, History of the Province, 1:87 (reviewing “frequent instances” of assemblies contending with governor to discharge debts “contracted on the faith of the government” to private persons). For the assembly's concern after it controlled the extraordinary revenue, see Act for making good the publick credit, 1712, Col. Laws, 1:775, 777; see also Act for refunding £711, 1708, ibid., 627 (requiring payment of “a certain debt due… borrowed on the [public] credit”); Act for raising a fund, 1708, ibid., 628-29 (settling claims; “it being highly reasonable” that those who “have advanced money and done services… should be duly paid”).

122. See Murrin, “The Menacing Shadow of Louis XIV,” 36-43, 57, and “Charter of Liberties,” 54-56, 63-64. Nicolls's father, Mathias, may have been the drafter of the 1683 charter. Murrin, “Charter of Liberties,” 55.

123. Assembly address to governor, 8 June 1704, JGA, 1:188.

124. See, e.g., Tully, Forming American Politics, 93; Hutson, James H., “The Bill of Rights and the American Revolutionary Experience,” in A Culture of Rights, ed. Lacey, Michael and Haadonssen, Knud (Cambridge, Eng., 1991), 62–66Google Scholar; see also Morgan, Inventing the People, 140-45 (interpreting political discourse in colonial America before the 1750s as generally bereft of discussion about popular sovereignty).

125. See Greene, “Political Mimesis”; Murrin, “The Menacing Shadow of Louis XIV,” 36-43, 57, and “Charter of Liberties,” 54-56, 62-64; see also Greene, Peripheries and Center, 47-49 (noting American turn to institutional strategies of asserting English rights).

126. Assembly address to governor, 8 June 1704, JGA, 1:188. The assembly continued on to refuse Cornbury additional funds for defense. Ibid.

127. The authority to tax would seem inherently to include a greater power: insofar as the assembly could deny a grant of taxes except where the choice of spending suited it, it could direct spending. But the conclusion that a taxing body could control spending, if only indirectly, did not obviously follow in the early imperial context. Grants of ordinary revenue were not broken down into topics or objects of spending. Rather, they were lump sums given “for the support of government.” While taxpayers, or their deputies, could refuse a lump sum grant, they could not easily use their power to direct particular spending: any refusal to grant ordinary revenue because of a disagreement over particular spending objects would be a provocative act, subversive of the prerogative. The obligation to grant a “support of government” was conceived, predictably, as a most basic duty and exhibition of loyalty to the Crown. See, e.g., George Clarke speech to Assembly, 9 October 1739, JGA, 1:764. The extraordinary revenue had always been more closely controlled by the legislature. But although it was appropriated more specifically, the allocations of extraordinary funds to the governor were still fairly broad. Thus, at a time when the legislature lacked clear authority to control spending, the authority to police it represented a doctrinal middle ground.

128. Assembly message to Council, 10 October 1705, ibid., 207 (emphasis added).

129. The Bankers' Case was a turning point in England from executive to judicial classification of public claims. For the current American conception of such work as adjudicative, see, e.g., Bator, Paul M., “The Constitution as Architecture: Legislative and Administrative Courts under Article III,” Indiana Law Journal 65 (1990): 233–75.Google Scholar

130. The New Yorkers after all proposed a reform sufficiently expansive to include the spending authority itself; they demanded disbursing officials who could issue warrants payable by the treasurer. While they could argue that no more modest system, the legislative approval of retroactive payments for example, would have answered the frontier and defense needs of the province, their proposal remained institutionally overbroad. For a royal charge to that effect, see, e.g., Cornbury to Lords of Trade, 8 July 1705, Docs. Col. Hist., 4:1146. The legislature's response is in a message to Council, 10 October 1705, JGA, 1:206; cf. Assembly address to governor, 8 June 1704, ibid., 188 (defending other claims in same terms).

131. Passage of act for raising £3000, 12 October 1706, JGA, 1:215; Act for raising £3000, 1706, Col. Laws, 1:593, 596.

132. See Act for raising £3000, 1706, Col. Laws, 1:596-97; Act for raising a fund, 1706, ibid., 598, 599. Aside from its requirement that the treasurer post a security to the House speaker, the “Act for raising a fund” contained conditions very similar to that provided in the “Act for raising the sum of three thousand pounds.”

133. Governor Hunter, writing to the Lords of Trade on 28 November 1710, described the treasurer as wholly “an advocat for the unaccountable proceedings of the Assembly.” Docs. Col. Hist., 5:185.

134. Act for raising a fund, 1706, Col. Laws, 1:599.

135. See Act for raising a fund, 1708, ibid., 628-30 (paying named individuals amounts down to “three shillings”); see also Act for raising two hundred and fifty-three pounds, 1708, ibid., 624-25 (discharging contract made by Cornbury with Hendrick Hansen); Act for the Treasurer[‘s] issuing bills of credit, 1709, ibid., 698-700 (paying list of individuals for “the present debt” accumulated in the expedition to Canada).

136. See, e.g., Act for laying an excise, 1709, ibid., 662, 664 (excise on strong liquors). For the authorization to commissioners, see Act for levying £6000, 1709, ibid., 654-55; Act to appoint commissioners, 1711, ibid., 727-28. The assembly began levying ordinary revenues again in 1713, although it increasingly asserted control over even this revenue later. See Spencer, “Rise of the Assembly,” 171-97; Desan, “Constitutional Commitment to Legislative Adjudication.”

137. See Act for the Paying and Discharging the Several Debts (New York, 1715), (Evans 1771); Act for Paying and Discharging Several Debts, 1717, Col. Laws, 1:938. The 1714 and 1717 acts were exceptionally large, an artifact of the years in which authority over public claims was contested. I use Patricia Bonomi's estimations of total ordinary and extraordinary revenue in order to gauge the relative value of the awards under the combined acts. For an analysis of how the adjudicative regime of the legislature operated, see Desan, “Constitutional Commitment to Legislative Adjudication.”

138. See, e.g., George Clarke speech to Assembly, 15 April 1741, JGA, 1:792-93; Horace Walpole to Lords of Treasury, 28 June 1720, Docs. Col. Hist., 5:545-48.

139. Cornbury, whether optimistic about his administration or anxious to paint it as successful, did not accuse the assembly of “refractory” actions until the fall of 1704; before that point he attributed any problems with the assembly to a few disaffected, pro-Dutch, and implicitly marginalized individuals. See Cornbury to Lords of Trade, 6 November 1704, Docs. Col. Hist., 4:1121; Cornbury to Lords of Trade, 30 June 1704, ibid., 1111; Attorney General Broughton to Lords of Trade, 27 June 1704, ibid., 1108, 1110. Cornbury fully spelled out his objections in July 1705; the Board received the missive in December of that year. See Cornbury to Lords of Trade, 8 July 1705, ibid., 1145-49, received 5 December 1705, Journal of the Commissioners for Trade and Plantations from April 1704, to February 1708/9 (London, 1920), 191. When the Board authorized a treasurer in early 1706, it had not received any minutes of the assembly's proceeding under Cornbury, nor the additional information sent by Cornbury in November 1705, which was received 7 February 1706. See signing of letter to Cornbury, 4 February 1706, ibid., 216; Cornbury to Lords of Trade, 20 November 1705, Docs. Col. Hist., 4:1165-66, received 7 February 1706, Journal of the Commissioners for Trade and Plantations, 217. For the Board's request of assembly proceedings, see its 4 February 1706 authorization letter to Cornbury, Docs. Col. Hist., 4:1172.

140. Katz, Newcastle's New York, 13-20; Steele, Ian K., Politics of Colonial Policy: The Board of Trade in Colonial Administration, 1696–1720 (Oxford, 1968), 84–108Google Scholar. The Board's passivity is suggested by the fact that North Carolina and New Jersey at a roughly contemporaneous moment also acquired control of colonial treasurers. See Kemmerer, Path to Freedom, 79, 86 n.28, 93, 112, 129-30, 138 (New Jersey treasurer appointed 1709, New York example influential); Dickerson, Oliver M., American Colonial Government, 1696–1765 (New York, 1962), 171Google Scholar (North Carolina treasurers appointed at some point well before 1733).

141. See generally the coverage in Journal of the Commissioners for Trade and Plantations; Katz, Newcastle's New York, 14-15.

142. Such requests and the reports they generated were recorded in the Board's minutes, where they occur routinely. See, e.g., Journal of the Commissioners for Trade and Plantations, 41 (12 September 1704), 72 (14 December 1704), 386 (12 July 1707), 403 (11 July 1707), 420 (31 October 1707). Far from pausing for lengthy consideration, the Board received its major communication about the assembly's request for the treasurer from Cornbury on December 5, 1705, held some discussions (amidst other business) the following two days, and agreed to a draft of its response on December 10, 1705. Ibid., 191-93. The final letter authorizing the treasurer was signed February 4, 1706; the minutes record no intervening discussion concerning the authorization at issue. Ibid., 216.

143. See, e.g., ibid., 92 (9 February 1705), 98 (22, 23 February 1705), 99 (27 February 1705), 101 (1 March 1705), 164 (25 September 1705). The resolution of royal administrative issues, such as the appointment of officers, plays a secondary theme. See, e.g., ibid., 86 (31 January, 1 February 1705), 152-53 (6 July 1705), 158 (20 July 1705), 170 (16 October 1705). On the expense of New York's defense, see Pargellis, Stanley, “The Four Independent Companies of New York,” in Essays in Colonial History Presented to Charles McLean Andrews by His Students (Freeport, N.Y., 1966), 96–123Google Scholar; Waller, “Queen Anne's War,” 40-53.

144. On the debt, see above, note 100. For the lack of intercolonial cooperation, see also Waller, “Queen Anne's War,” 43, 46, 49-51. For Cornbury's requests for funds, see, e.g., Cornbury to Lords of Trade, 27 and 29 September 1702, Docs. Col. Hist., 4:974, 977; Robert Quary to Lords of Trade, 16 June 1703, ibid., 1052; Cornbury to Lords of Trade, 17 June 1704, ibid., 1097-99; Memorial of Charles Congreve, July 1704, ibid., 1128-29, submitted in person, 9 February 1705, Journal of the Commissioners for Trade and Plantations, 92.

145. The Board submitted its requests for money for New York to the Crown. See, e.g., Lords of Trade to Cornbury, 26 March 1705, Docs. Col. Hist., 4:1139-40. The Treasury heavily influenced the disposition of Crown funds for colonial uses. For examples of the Treasury's authority over issues, see, e.g., New York Council to Lords of Trade, 10 March 1701, requesting assistance with Treasury, and Lords of Trade to Treasury, 25 June 1701, Calendar of State Papers, America (1701), 119-20, 317-18, Treasury minutes, 22 December 1701; Calendar of Treasury Books, 1 October 1700 to 31 December 1701, 16:119; Treasury report on Robert Livingston, 1 June 1704, ibid., 19:562-64; Leder, Robert Livingston, 186-95. See generally Clark, Rise of the British Treasury, 2-38; Steele, Politics of Colonial Policy, 96-108. For the Treasury's expedient toleration, see Clark, Rise of the British Treasury, 39-144. The Board's mercantilist focus accommodated the Treasury's initiative. See Katz, Newcastle's New York, 14-15. On the lax nature of the imperial management of the colonies during the first half of the eighteenth century, see ibid., 3-7, 10-20.

146. Lords of Trade to Cornbury, 4 February 1706, Docs. Col. Hist., 4:1172. For earlier similar directives to Cornbury, see Lords of Trade to Cornbury, 26 March 1705, ibid., 1139-40; see also Lords of Trade to Governor Dudley, 16 February 1704, Calendar of State Papers, America (1704-1705), 47-48 (complaining of difficulty in procuring New York's contribution to defense).

147. Hunter speech to the Assembly, 1 September 1712, JGA, 1:272.

148. See generally Clarke, Mary P., Parliamentary Privilege in the American Colonies (New Haven, 1943), 14–60Google Scholar; Wood, Creation of the American Republic, 150-61, 453-63. For the steady decline of legislative intervention into the adjudication of private law disputes, see Black, Barbara A., “The Judicial Power and the General Court in Early Massachusetts (1634–1686)” (Ph.D. diss., Yale University, 1975).Google Scholar Under the conventional account, the courts do continue to consolidate their authority after 1789 in an operation widely identified by legal scholars and judicial figures as a process of progression or refinement. See, e.g., Bator, “The Constitution as Architecture”; Glidden v. Zdanok, 370 U.S. 530, 558 (1962) (identifying delegation of claims to judicial forum as a “fulfillment of the design of Article III”); Plaut v. Spendthrift Farm, Inc. 115 S. Ct. 1147, 1453-56 (1995) (reviewing origins of American commitment to independent courts).

149. See, e.g., Kennedy, Essay on the Government of the Colonies; Desan, “Constitutional Commitment to Legislative Adjudication.”

150. For one review of the set of assumptions common in the legal positivistic approach, see, e.g., Simpson, A. W. B., Legal Theory and Legal History: Essays on the Common Law (London, 1987), 359–82.Google Scholar

151. See, e.g., Gordon, Robert W., “Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography,” Law and Society 10 (Fall, 1975): 9–55Google Scholar; Horwitz, Morton, “The Conservative Tradition in the Writing of American Legal History,” American Journal of Legal History 17 (1973): 275–94CrossRefGoogle Scholar; Katz, Stanley, “The Problem of a Colonial Legal History,” in Colonial British America: Essays in the New History of the Early Modern Era, ed. Greene, Jack P. and Pole, J. R. (Baltimore, 1984), 481–82.Google Scholar

152. The Whiggish slant of the old institutional histories is widely recognized. The question remains whether much of the new ideological history is not a greatly more sophisticated form of that narrative.