Government

THE NORTH CAROLINA LOWER HOUSE AND THE POWER TO APPOINT PUBLIC TREASURERS, 1711-1775

BY JACK P. GREENE^*

[Vol. 40 (1963), 37-53]

The most important single feature of the political development of the American colonies was the rise of the elected lower houses of assembly. In the century before Independence those bodies successfully sought to advance their own power at the expense of royal and proprietary executives. One of the most important powers gained in this process was that of nominating and appointing public treasurers to collect, hold, and apply moneys arising from provincial revenues.¹ Dependent upon the lower houses for their appointment and responsible to them for their conduct in office, these officers inevitably came under their control. In its narrowest implications this power was merely one manifestation of the lower houses’ extensive financial authority,² but in its broadest sense it was an important encroachment upon executive power. The public treasurers were simply legislative officers performing executive duties. As was so often the case in colonial America, there was a wide gulf between imperial theory and experience on the one hand and American practice on the other. Authorities in London intended to set up an arrangement in America similar to the one in England by which the Crown appointed custodians of revenues granted by Parliament. But they failed either to provide such officers or to oppose seriously and systematically the lower houses’ numerous appointments of public treasurers in both the late seventeenth and the early eighteenth centuries. Consequently, the colonial legislatures established precedents and a long history of uninterrupted practice to support their contention that funds should be handled by officers appointed by the authority that raised them. In North Carolina the attempts of the Lower House to secure and maintain its power to nominate and appoint public treasurers beginning during the second decade of the eighteenth century constituted a serious and persistent political issue that has never received the attention it deserves.³

Although the paucity of records makes it impossible to determine the matter for certain, it appears that the North Carolina Lower House first appointed treasurers in 1711 at the beginning of the Tuscarora War to collect import and export duties levied to meet military expenses. Governor George Burrington’s statement in 1733 that before this time there were no public treasurers and that “what Small levys were raised by the Assembly were collected by the Sheriffs or marshalls and accounted for to the Assembly who paid what Small claims there were on the Publick...” is probably accurate.⁴ When Burrington became Royal Governor of North Carolina in 1731, he found Edward Moseley acting as public treasurer. By 1731 Moseley had been prominent in North Carolina politics for nearly a quarter of a century. One of the foremost lawyers in the colony, he had served as chief baron of the exchequer, associate justice of the general court, commissioner for running the boundaries of the colony with both South Carolina and Virginia, and member of the Council from 1705 to 1708, and 1725 to 1731. But his most conspicuous service came during his tenure as Speaker of the Lower House. Moseley had acted in that capacity from 1708 to 1711 and again from 1715 to 1723. Under the Crown he served as Speaker still a third time from 1731 to 1734, when he once again became a member of the Council, a post he held until his death in 1749. More than any of his contemporaries he was responsible for promoting a vigorous spirit of legislative opposition to colonial governors.⁵

The source of and authority for Moseley’s appointment as public treasurer are not clear. Failure of the 1711 duty law to produce money fast enough to meet the requirements of the war led the Lower House to create a paper currency. Among the commissioners appointed to issue the currency was Moseley. In 1714 the Lower House put out additional paper and again appointed him as one of the issuing commissioners. The House also assigned him the task of supervising the process of exchanging the new currency for the old. Not until 1722, however, was Moseley actually referred to as public treasurer. By an act passed at that time to print new bills to replace the ones then circulating, the House continued Moseley as one of the issuing commissioners. But more important the act designated him public treasurer and empowered him to receive from the sheriffs a tax of five shillings per poll and all precinct and parish dues, which were to be accounted for to the Lower House. Further, Moseley was to deposit a bond of £15,000 with the governor in order to insure “his Faithfull Discharge of his Said Office and disposing of the publick Money as directed by this Act.” By calling him public treasurer, empowering him to receive certain revenues arising from taxes, and requiring him to give security for the office, this act in effect made Moseley public treasurer. It also constituted an acknowledgment by the Governor and Council that the power to nominate and appoint the public treasurer, at least in this instance, belonged to the Lower House.⁶

Moseley continued to serve as public treasurer until 1729, when the House issued another new paper currency. The House again made Moseley an issuing commissioner and gave him exclusive control in the matter of exchanging the new bills for the old ones. The act to provide this new currency called him public treasurer in several places where it mentioned bills of the 1722 issue, but it did not refer to him by that title in reference to the new bills. To receive taxes levied by this act, the House appointed eleven precinct or county treasurers, one of whom was Moseley, instead of merely one treasurer as it had done in 1722. Nowhere is there any indication that the House intended for Moseley to serve as public treasurer after the old bills were exchanged. Still, he was acting in that capacity at the meeting of North Carolina’s first royal legislature in 1731.⁷

Who had the power to appoint the public treasurer and whether or not Moseley legally held that office became the subject of a heated controversy in April, 1731, between Burrington and the Lower House. Before leaving London, Burrington asked Board of Trade Secretary Alured Popple in December, 1730, whether the governor or the Lower House should choose the receiver of the colony’s taxes. Popple replied that the Crown had appointed a receiver general for the colony and that no other receiver was needed or ought to be allowed there. But Burrington completely disregarded Popple’s reply and decided that the colony did require a public treasurer to collect provincial revenues and that the Crown or the royal governor should appoint him. Accordingly, in April, 1731, he presented the Lower House with a copy of his forty-seventh instruction, which specified that no officers were to serve in the colony except under a commission from the governor or the Crown, and informed it of his intention to appoint “a fit Person” to act as treasurer until the King commissioned someone to fill that office.⁸

Burrington’s proposal did not meet with an enthusiastic response. The Lower House replied that it was “very well satisfied with the Ability & Integrity of the present Publick Treasurer Ed[war]^d Moseley Esq^r. who was appointed to that office in an Act of Assembly by the Governor Council and Assembly” and argued “that such an officer so appointed is not to be removed but by the like Power....” Defending the practice on the grounds “that the Publick Treasurers of our Neighbouring Governments are appointed in like manner by the Governor Council and Assembly,” the House expressed the opinion “that the 47^th Instruction doth not extend to officers appointed by Act of Assembly as are the Publick and Precinct Treasurers and sundry other officers,” thus implying that the instructions could not supersede established colonial customs.

The Council sided with Burrington and undertook to answer the Lower House. The Council declared that “Nothing can be more clear or Express than the latter part of the 47^th Instruction wherein His Majesty declares that no officer whatever shall be appointed but by himself or his Governor which surely excludes the House of Burgesses from any share in the nomination of a Treasurer unless you can prove that the Treasurer is not a Publick officer.” Concerning Moseley, the Council agreed that “he is a Person of sufficient ability” but wished “that his Integrity was Equall to it...” and denied that he had been appointed by legal authority. But the Lower House remained firm. It put quite a different interpretation on the 47th instruction than had the Council. It expressed the opinion “that the 47^th Instruction was never designed by His Majesty to Vacate such Authorities as are granted by Act of Assembly but only to prevent all Persons whatever acting by any Commission from the late Lords Proprietors....” The Council’s reflections upon Moseley, it asserted, were “unprecedented & a great violation and breach of the Priviledges of this House,” declaring that it was “very well satisfied as well with his Integrity as his Ability, his accounts always appearing to be just and True....” To answer the Council’s charge that Moseley had not been appointed by legal authority, the Lower House pointed out, somewhat inaccurately, that “his appointment to that office has been by several Acts of Assembly ever since the year 1715.”⁹

At this point Burrington decided to seek support from home. In letters to the Duke of Newcastle and the Board of Trade in July, 1731, Burrington complained that the “Assembly of this Province have all-ways usurped more power than they ought to be allowed, one instance I now give in that of chuseing a publick Treasurer (the person now in possession of the office is Edward Moseley speaker and Manager of the Assembly)....” He also pointed out that the currency act of 1729 “constituted eleven Precinct Treasurers who were all in the Assembly and as they have the Disposition of the Publick Money will be constantly chosen, which forms so great a Party that they can Lead the Assembly as they please.” To remedy this situation Burrington urged that “a Treasurer for this Government be appointed by the Lords of the Treasury.” He again called the matter to the Board’s attention in February, 1732. He reported then that the “settling Treasurers by the Pretended Act in 1729 is taken from the Method in New England...” and pointed out that “if this were suffered here, these men would have such an influence in Elections, that scarce a man could be Chose but by their approbation, in the Assemblys they must inevitably carry every matter in Debate as they please...,” again suggesting that “the Lords of the Treasury... appoint one Treasurer for the Province.” But Crown officials were cautious in treating Burrington’s complaints. Board Secretary Alured Popple wrote Burrington in August, 1732, asking for a report “with respect to the power claimed by the Assembly of chusing the public Treasurer of the Province & what has been the constant practise and by what authority M^r Moseley was originally appointed....”¹⁰

To answer Popple’s inquiry, Burrington investigated the history of the treasurership. Moseley was evasive as to how he was appointed treasurer. He referred Burrington to the legislative journals and statutes to corroborate his contentions that the “constant Practice has been for the Assembly to appoint the Treasurers and gatherers of money raised by the Assembly...” and that the “first of my appointments to be Publick Treasurer was by that Assembly that first emitted Publick Bills of Credit, or near that time....”¹¹ To obtain a more accurate account, Burrington turned to the journals and statutes. He presented the results of his findings to the Board of Trade in a long letter that contained a remarkable analysis of the issues on the question of who should appoint the public treasurer. The representatives, Burrington reported, “claim it as their Right to appoint the Province Treasurer who is the keeper of the Province Money....” They admit that the Crown could appoint receivers to handle “moneys ariseing out Rents and such His Majesty’s dues which are an inherent and heriditary Right,...” he wrote, “but where the money is raised by the Assembly for particular Ends and Uses for the Defence and service of the Country, as the same is to be applyed to such uses, as the Assembly think proper to appropriate it, so they think they ought to appoint the manner and persons for the directing and manageing thereof, and insist that as they have the direction of the end they ought to have the appointment of the means or the End may be frustrated, and they further affirm that it has all along been the Practice of this Country to appoint the Treasurers for receiving the money they raise and add that it is so in other Colonys.” On the governor’s side, Burrington declared that “the Assembly as the legislative part of the Country is to raise and appropriate the money for the Publick Service yet the executive part of the Government being in the King and his Ministers under him as he is the Head and intrusted with the Government for the Publick Good whatever is executed and done for the Publick Service is under His Direction and to be done by his Orders and Officers. And as the Treasury of Great Britain is under His Majesty’s immediate appointment tho the money is raised and appropriated by Act of Parliament,” he continued, “it would be very extraordinary for the Colonys to assert or claim a higher right or Privilege then the People of England enjoy and if the Colonys have assumed that Power in any place it may have rather passed unobserved then allowed of or Established.”¹²

Despite Burrington’s frequent entreaties, Gabriel Johnston, upon his appointment to the governorship of North Carolina in 1734, found the situation in regard to the public treasurer still unchanged. The Board’s lack of respect for either Burrington or his measures provides a partial explanation for its inaction, but the fact that it showed little interest in a similar appeal from Johnston before he out to the colony leads one to conclude that it simply failed to realize the importance of the treasurership in North Carolina. In the meantime, Moseley continued to act as public treasurer at least through February, 1735.¹³

Many of the colony’s laws for the years between 1735 and 1740 have been lost, so what happened to the public treasurership during that time is largely a matter of speculation. In 1740 the office was divided and there were two public treasurers, one for the northern and one for the southern counties. There are substantial indications that this division took place earlier. In November, 1739, shortly after the death of William Downing, who had served as Speaker of the Lower House after Moseley’s promotion to the Council in 1735 until his death in 1739, the Governor and Council appointed Chief Justice William Smith treasurer for the “Northern Counties.” At the legislature’s next meeting, early in 1740, it passed a law to appoint “a Treasurer for the several Counties herein mentioned in the Room of William Downing, Esq., deceased....” The body of this law no longer exists, but the title certainly implies that Downing was treasurer for a limited number of counties before his death. Since the Governor and Council were probably empowered to fill vacancies in the office or offices of public treasurer in the case of the incumbent’s death or removal from the province, it appears that Smith’s appointment as public treasurer for the northern counties the previous November was temporary to fill the vacancy occasioned by Downing’s death. In all likelihood, therefore, Downing was public treasurer for the northern counties at the time of his death.¹⁴ How and when he was appointed to that office, who was treasurer for the southern counties, and who succeeded Downing in February, 1740, are questions that require further speculation. Downing was probably appointed treasurer in 1735, when he was first elected speaker by one of three revenue laws then passed, none of which is extant.¹⁵ The other treasurer was almost certainly Edward Moseley. A 1740 tax act that refers to Moseley as public treasurer for the southern counties implies that he had been serving in that office for some time. Since Moseley served as public treasurer for the entire province from 1723 to 1735, it is logical that the Lower House continued him as one of the public treasurers when that office was divided. It is equally certain that Downing’s successor as treasurer of the northern counties in 1740 was his successor as speaker, John Hodgson.¹⁶

An appropriation law of 1740 refers to Edward Moseley and John Hodgson as treasurers for the southern and northern counties, respectively, Hodgson occupying his post until 1748 and Moseley until 1749. During their tenure the practice established in 1729 of filling the offices of precinct treasurers seems to have fallen into disuse. From 1733 to 1734 it was customary for the Lower House to nominate one to three men for each vacancy in those offices from whom the governor made the final appointment. But in an appropriations law passed in August, 1740, the Lower House assigned the duties of the precinct treasurers to the sheriffs. Subsequent vacancies in these offices appear not to have been filled, and a 1748 treasurers’ law makes no mention of precinct treasurers.¹⁷

The 1748 law specifically defined the duties, salary, and tenure of the treasurer. It continued Edward Moseley as treasurer for the southern counties but substituted Thomas Barker for John Hodgson, who after 1746 had assumed the leadership of the opposition to Johnston and the “long assembly” during the representation controversy.¹⁸ The treasurers were to receive from the sheriffs and hold all taxes levied by the legislature. Their salary was five per cent of their total receipts, and they were required to submit their accounts to the legislature for auditing. Their term was set at four years, and the Governor and Council were empowered to fill vacancies temporarily when the legislature was not in session. Each was required to put up a bond of £2,000 sterling.¹⁹

Between 1748 and 1752 there were several changes in the personnel of the treasury. Edward Moseley died in l749 and was succeeded by Councilor Eleazer Allen. Upon Allen’s death in 1750 Representative John Starkey was appointed to fill the post. When the 1748 law expired in 1752 a new law continued Starkey in one post but appointed John Haywood to the other to succeed Barker, who had resigned.²⁰ All of these changes and appointments took place without any opposition from Governor Gabriel Johnston, but a dispute of some importance concerning the right of nomination occurred in 1750. Moseley’s sentiments had probably always lain with the Lower House, but he had been a member of the Council from 1735 until his death in 1749. His appointment to the Council did not result in his removal as treasurer, and his continuance in that office established a precedent for one of the treasurers being from the Council. The appointment of Allen, also a Councilor, to succeed Moseley in 1750 strengthened the precedent, and, upon Allen’s death, the Council insisted that Councilor George Nicholas succeed him. But the Lower House nominated John Starkey for the office, and when the Council continued to insist upon Nicholas, the Lower House declared that it had always held the “right to nominate a person for that Office.” The Council expressed surprise at the representatives’ assertion of “an exclusive right to the nomination of such person” and alluded vaguely to “precedents to the contrary.” Neither house would yield, and the Council rejected one bill to appoint Starkey, but some three months later, for reasons not now entirely clear, it finally gave in and agreed to Starkey’s appointment.²¹ From that date on treasurers were always members of the Lower House.

Johnston’s long administration produced no serious challenge to the Lower House’s authority to nominate and appoint public treasurers; under Arthur Dobbs between 1754 and 1765 it was a different story. The 1752 act was supposed to continue in force for five years, but in December, 1754, at the beginning of Dobbs’ administration the Lower House appointed Thomas Barker to succeed Haywood as northern treasurer and reappointed Starkey as southern treasurer in a military appropriation measure.²² Although Dobbs did not object to the act at the time of its passage, he frequently assailed it along with the two treasurers during the succeeding years of his administration.

Thomas Barker and John Starkey occupied their posts as treasurers for ten and twelve years respectively after 1754, and during their tenure Dobbs subjected them to a series of violent attacks. Dobbs once described Barker as “a skipper of a new England Bark, and afterwards a hackney clerk in this Province...” and as a person of “mean education,” but he reserved his most abusive comments for Starkey. He admitted that Starkey was “a man of good behaviour ... and of a tolerable fortune,” but he declared that this treasurer was “the most designing Man in the Province” and “a professed violent Republican in every instance taking from his Majesty’s prerogative and encroaching upon the Rights of the Council, and adding to the Power of the Assembly to make himself popular....” Dobbs attributed Starkey’s extreme popularity to “his capacity and diligence” and to “his garb and seeming humility by wearing shoe strings a plain coat and having a bald head....” By these devices, Dobbs insisted, “he seems self denied...”²³

Matters between Dobbs and the two treasurers apparently ran on smoothly between 1754 and December, 1757, when Dobbs registered his first official complaint against them in a letter to the Board of Trade. He singled out Starkey in particular for condemnation. Dobbs accused him of “opposing all taxes that do not turn out to his profit,” of “attempting to gain power to the Assembly by encroaching upon his Majesty’s Rights...” and of “having taken upon himself the payment of the allowance to the Members for their attendance which he can advance or delay as he pleases so that all the low Members who want a supply follow him like Chickens so that he sways the House against the most sensible Members in it.” Dobbs further charged that Starkey was responsible for the Lower House’s decision to reduce by half the number of troops in the colony’s service and to refuse to provide a salary for the storekeeper at Fort Johnston that Dobbs had appointed to care for supplies sent over by the Crown. To lessen Starkey’s power Dobbs proposed that the Crown disallow the 1754 appropriation bill by which the treasurers had been appointed and issue “an Instruction for the future not to pass any Law for appointing provincial Treasurers without excluding them from being Members of either House....” He pointed out that only £3,600 in paper bills was still outstanding from those issued by that act and urged the Board to “consider whether the circulating £3,600 in Bills will be a loss equivalent to the Obstruction given to the Kings service here by that Republican Treasurer Starkey who must then quit his seat in the Assembly or place of Treasurer, In case His Majesty consents that the Assembly shall name the Provincial Treasurers which has been an Encroachment upon the Crown in other Provinces.”²⁴

But when the Board indicated no immediate interest in his proposals, Dobbs resolved to launch a concerted campaign to have the treasurers removed. In January, 1759, he wrote the Board, complaining further of Starkey that he acted “not as His Majesty’s Treasurer for his service, but calls himself Treasurer for the Public not accountable to the Crown....” He once more pressed the Board for the disallowance of the law that had appointed the treasurers and emphasized that “an approaching peace, when nothing will be required but for their own benefit will be a proper time to insist upon his Majesty’s Prerogative pursuant to my instructions with a new House of Assembly before Parties are formed in it.” In another letter the following May, he reiterated his complaints against the treasurers and urged anew that the act appointing them be disallowed. Further, he suggested that “his Majesty or Governor and Council here should appoint one or two Treasurers who should account with the Government here and with the Treasury in England.”²⁵

Dobbs’ repeated complaints finally stirred the Board to act. In June, 1759, it replied that it had submitted his complaints against the treasurers to “the Lords of the Treasury for their Judgment and direction.” The following August it issued its final opinion on the matter. In an unusually enlightened decision the Board declared that the “practise which has prevailed for so long a time in all the Colonies of appointing Publick Treasurers by Act of Legislature and making them accountable only to the General Assembly and in some Cases to one branch of it, is certainly irregular and it is to be wished that it had been properly checked in its infancy, but having prevailed and been acquiesced in for so long a series of years, any attempt to set it aside in the present situation of Affairs would in Our judgment be improper and therefore we cannot advise the repeal of the Aid Act passed by You in 1754, especially when We consider that a considerable part of the Taxes thereby to be raised would be lost by such repeal.”²⁶ The decision was an important one, constituting as it did a frank admission by Crown officials of the futility of trying to deprive the Lower House of such a long-established power at a time when its support was needed in the war effort. It showed clearly that imperial authorities were prepared, if not officially to recognize, at least to tolerate indefinitely the lower houses’ exercise of the power to nominate and appoint public treasurers.

The Board’s decision might have left Dobbs with small hope of wresting the powers of nominating and appointing the public treasurers from the Lower House. With no prospect of support from the home authorities, Dobbs could well have abandoned his efforts entirely. That he did not is a testimony to his tenacity and optimism. He gave up his attempts to obtain immediate reforms, but he took pains to keep the matter fresh in the minds of imperial officials. He suggested to the Board in January, 1760, that the clause appointing the treasurers without limitation of time in the 1754 appropriation bill might be disallowed when that law expired in 1763. To illustrate “in what Manner the public accounts are carried on, when not brought before and passed by the Council, and not properly audited, when thus undigested and passed by the Assembly...” Dobbs sent the Board a copy of Thomas Barker’s accounts. Although the Board’s decision prevented him from taking any action against Starkey in his position as treasurer, Dobbs found other ways to lessen the treasurer’s influence, which he had come to regard as a serious challenge to his own. He removed Starkey from his posts as justice of the peace for Onslow County and colonel of the county militia so that he would not “by favour of the Crown have an undue influence over the County upon a new Election....”²⁷

Thomas Barker’s request for leave to resign as treasurer for the northern counties in November, 1760, presented Dobbs with an unexpected opportunity to interfere with the representatives’ power of nominating and appointing public treasurers; but he was unable to turn it to his advantage. Barker sent his resignation to Speaker Samuel Swann by way of Councilor John Rieusett along with his recommendation that Rieussett succeed him as treasurer. At that particular time the Lower House was trying to push through the Council a military appropriation bill that carried a rider providing for the appointment of an agent. Previously the Council had twice rejected that bill, but the Lower House knew that only one more affirmative vote was needed to carry it. At the instigation of Swann, therefore, the Lower House decided to offer the treasurership to Rieussett as a quid pro quo for his support of the appropriation bill in the Council. Rieussett swallowed the bait, and by his vote the appropriation measure passed the Council. The Lower House kept its part of the bargain. It had originally nominated an assemblyman to succeed Barker, but as soon as the appropriation bill had passed the Council it allowed that body to substitute Rieussett’s name in the treasurer bill, although it made a point of resolving “that it is the inherent right of this House, to nominate Persons to be appointed to the office of Public Treasurers of this Province; and altho’ this House do agree to the person now proposed by the Council to serve in the office of Public Treasurer of the Northern District, yet the same shall not be drawn into Precedent, as admitting a right in the Council to propose, or nominate any Person, or Persons to be appointed to the said office....” There is some indication that Dobbs may have hoped to turn this measure to his own advantage by rejecting Rieussett and appointing a nominee of his own, thereby asserting the governor’s right to appoint the public treasurer. But he first had to be sure that Barker had actually resigned. Accordingly, he refused to assent to the treasurer bill until he had seen Barker’s resignation. But the Lower House had anticipated such a development and did not intend to accept Barker’s resignation until Dobbs had consented to Rieussett’s appointment. When the House refused to show Barker’s resignation to Dobbs, he rejected both the treasurer’s bill and the appropriation measure. As a result the Lower House would not grant Barker leave to resign, and he served as treasurer for the northern counties for another two years. Dobbs had again come off second best to the Lower House.²⁸

From 1760 to 1763 Dobbs continued to complain about the treasurers to the Board of Trade. In December, 1760, he declared that “the northern Treasurer has made payments to his favourites without my Warrants, and the Assembly this Session have ordered their Southern Treasurer to pay Publick money without any order from me....” In his answers to the queries of the Board of Trade in December, 1761, Dobbs particularly complained of the Lower House’s manner of passing the treasurers’ accounts and expressed hope that the clause to appoint the treasurers in the 1754 appropriation law might be disallowed upon the expiration of that law in June, 1763. Dobbs’ continued complaints made little impression on the Board of Trade, however. For the most part the Board either ignored them or curtly dismissed them as it did in May, 1763, by referring Dobbs back to the “Sentiments and Directions” in the “Mode of appointing Treasurers” that it had set forth in 1759.²⁹

With little prospect of support from home, Dobbs had no other alternative when the 1754 appropriation bill expired in 1763 than to assent to a new treasurer’s bill. When the legislature convened in February, 1764, he took the initiative in offering to consent to a bill to appoint treasurers for a short term until the Crown had instructed him how they should be appointed for the future. At first the Lower House denied that the clause appointing the treasurers in the 1754 bill had expired. But Barker was still pressing the House for leave to resign, and, when both Dobbs and the Council signified their willingness to concur in the matter, the House took the opportunity to put the treasurerships on a more solid legal footing and passed a bill that continued Starkey as southern treasurer and appointed Representative Joseph Montfort to succeed Barker in the northern post. Dobbs did gain one important concession in this bill when he persuaded the Lower House to limit the treasurers’ terms of office to three years. In reporting upon the act to the Board of Trade, Dobbs explained that he had passed it “to put it out of doubt, lest some should refuse to pay the public Taxes to other Treasurers should they have been appointed by the Crown.”³⁰ By consenting to the measure Dobbs had, in effect, admitted that he was unable to prevent the Lower House from exercising the power to appoint treasurers. He probably still hoped that he might enlist the aid of the imperial authorities in his fight, but at no time after their 1759 decision was there any real possibility that his hopes would be fulfilled. Neither of Dobbs’ successors was bold enough even to challenge the Lower House upon the matter, and it continued to appoint treasurers by statute for the remainder of the colonial period.

If the governors had conceded the power of appointment to the Lower House, the Council was not yet disposed to give up its claim to the right of nomination. John Starkey’s death early in 1765 paved the way for an extended controversy between the Lower House and the Council over who should succeed him. The House proposed Representative Richard Caswell, but the Council, intent upon asserting its right of nomination, held out for Councilor Lewis DeRossett. Neither side would give in, and the session ended without an agreement. To fill the vacancy until the legislature had agreed on a candidate, Governor William Tryon appointed Speaker Samuel Swann, a popular choice with the House and one well calculated not to destroy his good relations with that body.³¹ The troubles over the Stamp Act kept Tryon from reconvening the House for nearly a year and a half, so Swann’s tenure was longer than had been expected. When the legislature did meet again in November, 1766, the controversy threatened to be re-enacted. The Lower House opened the session by complaining to Tryon about the Council’s denying it the “priviledge ... of naming their Treasurers.” To restore harmony Tryon proposed to intercede with the Council to persuade it to relinquish its claims to the right of nomination until he had submitted the matter to Crown officials for a decision; but he was unable to head off another battle between the Council, once again insisting on DeRossett, and the House, supporting Assemblyman John Ashe. Only after the House agreed that it would not deem the act “as the relinquishing any rights which in your opinion you have to a joint nomination...” would the Council finally agree to Ashe’s appointment. But the matter was still settled only temporarily, for the 1764 treasurers’ bill was to expire at the end of 1767. And the Council’s declaration finally consenting to Ashe that “the appointment of a Provincial Treasurer is a creation of the legislature here, dissimilar from and repugnant to the constitution of the British Government...” and that it had “a coequal right” with the Lower House both in “the nomination and appointment...” was a strong indication that the Council would revive the controversy at that time.³²

In an attempt to prevent such a development, Tryon, like Dobbs before him, sought the aid of London authorities. Three times during the early months of 1767 he asked for a ruling on the issue. No doubt he hoped and expected that the authorities would uphold the Council’s right of nomination. But they appear to have ignored his requests; when the legislature met in the fall of 1767, Tryon was still awaiting a decision. Even with the Crown’s positive support it is doubtful that the Council could have forced the Lower House to recognize its “coequal” right of nomination, but without that support the Council did not even make an issue of it. The fact that neither of the treasurerships was vacant made it easier for the Council to agree to the House’s candidates, and it readily consented to the reappointment of both Ashe and Montfort for a term of five years.³³

When the question came up again in 1773, the Council again failed to make a contest over the right of nomination. At that time the lower House voted to continue Montfort as northern treasurer but decided to replace Ashe with Richard Caswell, who had been a strong candidate for the post at Starkey’s death in 1765. The Council made a weak bid in support of Ashe but when the House insisted on Caswell yielded without any real protest. The appointment in 1773 was for a term of only two years, but before the matter came up again North Carolina was already far along the road to revolution.³⁴

Governor Josiah Martin, Tryon’s successor, did not object to these arrangements, although the Lower House’s tight control over the treasurers caused him serious difficulty during his tenure. When Martin refused his consent in 1772 to a measure to discontinue a one-shilling poll tax levied to sink a particular paper money issue, the Lower House had merely ordered the treasurers to stop collecting that tax. Both treasurers owed their jobs to the House, and neither could afford to ignore that body’s order. When they complied with it, Martin had to threaten to prosecute them to the value of their bonds of office before he could force them to resume collecting the tax. But two and a half years later, when British repressive measures against Boston aroused the anger of North Carolinians, Martin was unable to prevent the House from effecting a similar manuever. Martin also found that the House’s replacing Ashe with Caswell in 1773 created a serious division in that body as Ashe’s supporters vied with those of Caswell for control of the House so that they might be able to name the treasurer when it was time for a reappointment in 1775. This division seriously obstructed business in the House and convinced Martin that the Crown should take steps to gain the power to appoint the treasurers. The Lower House had “long fatally to the policy of this Country, usurped the nomination of those Officers,” he lamented in September, 1774, requesting the Earl of Dartmouth, Secretary of State for the Colonies, to consider “whether it will not be ... expedient if it can be done with propriety to vest in his Majesty’s Governor the appointment of Treasurers....”³⁵ Martin’s request was remarkably similar to the requests of Dobbs ten and fifteen years earlier, and like those it failed to win any support at home. When royal government was overthrown in North Carolina, the Lower House’s power to nominate and appoint public treasurers was undiminished.

By securing and exercising the power to nominate and appoint public treasurers the North Carolina Lower House assumed an important share of the duties of the executive and extended its authority in its limited sphere beyond that of the British House of Commons, which left the appointment of all revenue officers to the Crown. By uniting the speakership with the treasurership for much of the period between 1711 and 1748, the Lower House went even further and succeeded in combining the top legislative post with an important executive one. The inability of Governors Burrington and Dobbs to deprive the Lower House of this power demonstrated just how powerful the Lower House was becoming, and the unwillingness of London authorities to lend their support to the governors’ efforts indicated during the early years their failure to recognize all of the implications involved in the Lower House’s choosing and controlling such important executive officers and in the late colonial period their recognition of the folly of trying to deny the Lower House a power it had so long exercised.

Footnotes