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CHAPTER X

THE DISSOLUTION OF THE MASSACHUSETTS COMPANY

For some years after the return of the royal commissioners and the fall of the Clarendon ministry, there was a lull in the controversy between Massachusetts and the crown. By occasional petitions, however, the Mason and Gorges heirs kept their case before the English government. In 1670 and 1671 Gorges petitioned twice and Mason once.¹ Both of Gorges’ petitions led to special inquiry. On the first occasion the council for foreign plantations reported that Gorges had proved his allegations “in every point.” In 1671 and 1672 the board devoted much attention to New England affairs, examining the papers of the commissioners of 1664 and hearing Cartwright himself. They reported in favor of sending another commission to New England, Lord Arlington actively supporting the proposal; and in April and May, 1672, the king almost reached the point of naming the commissioners. But further steps were prevented by the outbreak of the third war with Holland and the fall of the Cabal ministry which was connected with that event.²

During the Dutch war the efforts of the petitioners were suspended, but as soon as it closed they were resumed. In the spring of 1675, both Mason and Gorges were repeatedly before the committee for trade and plantations, and, with a view to the appointment of a general governor for New England, they offered to resign their patents and take others with less privilege. This, of course, would have been a possible result only in the case of Gorges. A long paper was presented by Mason in which a possible program for another royal commission was fully discussed. After this had been heard the committee referred the question of title to the law officers of the crown for report, and the question

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of the customs in New England to the commissioners of the customs.¹ The reports of both were unfavorable to Massachusetts, that of the law officers being to the effect that the titles of Mason and Gorges were good.

The complaints of merchants² and the report of the commissioners of the customs directed attention closely to the independent course which Massachusetts was still pursuing in the matter of trade. In Massachusetts itself the commercial spirit was steadily growing, and with it went a decline in religious fervor. The growth of sentiment in favor of the so-called halfway covenant was one of the phases of this development. The division of which these were symptoms did not at this time seriously affect the deputies, because the great majority of the members of that house came from the small towns of the interior. On the other hand, the homes of a large proportion of the magistrates were in the coast towns, and they felt the influence of the dawning secular spirit. Occasional journeys and periods of residence in England broadened their views and gave rise to interests which were less exalted and more worldly than those of their fathers had been. For this reason waverers like Bradstreet, Stoughton, and Dudley continued to exert a growing influence among the magistrates. They helped to keep the colony quiet, and to prevent any attempt at revolt.³

Among the councillors of the king the idea of sending another commission to New England seems to have been uppermost until near the close of 1675. On December 2, after considerable delay, due apparently to negotiations with Spain over damages for the seizure of two ships and with France over relations at Saint Christophers, the committee of trade told Mason that, if he would state his case, they would submit it to the king and advise that Massachusetts be

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required to send agents. To the plan of another royal commission they expressed themselves as opposed, because of its expense, the uncertainty of its success, and the danger that it would cause affront on the ground that it would seem like awarding execution on the New England people before they were heard. During the week of December 20, the petitions and the report to the king were prepared, as well as a general circular letter on the subject of the acts of trade.¹ Additional information concerning the attitude of Massachusetts toward the acts of trade, which was given by the merchants early in the following year,² fixed the determination of the board and privy council to act. It was resolved to send the summons, not, however, merely in written form, as hitherto, but to transmit it through the hands of an agent specially appointed and despatched for the purpose. Edward Randolph, with whose subsequent career as a customs official in New England we are already familiar, was selected for this duty; and thus began a connection with the colonies which was to last during the remainder of his life.

The undoubted purpose of the government in adopting this measure was to reopen the entire question of the relations between itself and Massachusetts. Its real desire was that the agents who might be sent to England should be given full authority to discuss all the questions at issue and receive the will of the king concerning them. But the most tangible among these questions was the boundary dispute with Mason and Gorges. It was the question on which an appeal would most naturally be taken. For this reason, among others, the English officials, who for some time had been in doubt respecting the best way in which to approach Massachusetts, decided that it should be brought prominently to the front. In the letter from the king to the colony, which Randolph was to deliver to the governor and council³ at Boston, no reference was made to any other question save that of the northern boundary. Upon this subject precise language was used. “Therefore,” ran the letter, “Wee doe, by the advice of our said Council, hereby

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command that you send over agents to appear before Us, in six months after your Receipt of these Our Letters, who, being fully Instructed, and sufficiently Informed to answer for you, may receive Our Royal Determination in this matter depending for Judgment before Us.” Copies of the petitions which Gorges and Mason had presented to the king were enclosed with the royal missive, and the intention was expressed that a decision should not be reached until both sides had been fully heard. From this language Massachusetts would be justified in inferring that she was summoned to answer the complaint of Gorges and Mason and that alone. But in the background was the consciousness of her whole past history, of the complaints which had been made to the Restoration government, of the contents of the king’s letters, and of the doings of the royal commission.

Randolph arrived at Boston in June, 1676, when the war with Philip was approaching its later stages. The letter which he brought from the king required that the agents should be sent within six months after the receipt of the missive itself. Since Randolph had been commissioned to bring back to the king the answer of the Massachusetts government and a report of its proceedings, the request was made that the letter should be read in open and full council and that Randolph might be present at the time. In addition to delivering the letter and receiving the reply, Randolph was instructed to remain a month in New England and inform himself, so far as possible, concerning the laws, churches, means of defence, boundaries, taxes and revenue, trade, and manufactures of those colonies. He was also to inquire respecting their relations with one another and their attitude toward the home government. Upon these matters he was to present a report¹ to the king. To aid in his inquiries Randolph was given certain rough estimates bearing on the topography, resources, and life of New England. This clearly indicates that the crown contemplated something far wider in its bearing than the adjustment of the claims of Mason and Gorges. Randolph was a professional lawyer. He had acted on one or two occasions as an agent

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in purchasing timber for the royal navy. What other posts he had held the scanty information at our command concerning his earlier life makes it impossible to state. But he had become acquainted with a number of men who were prominent in public life, and to them he seemed well qualified for the mission on which he was sent. But of special value to Randolph was his connection with Sir Robert Southwell, Robert Tufton Mason, and Sir Robert Sawyer. The first of these, in or about 1675, succeeded John Locke as secretary to the committee of trade and plantations; while to the second, with whom Randolph was remotely connected by marriage, he owed in part his earlier advancement. Later Sir Robert Sawyer, as attorney general, was a principal instrument in executing the plans which Randolph formed against Massachusetts. All were typical lawyers and officials of the period of the later Stuarts. Mason’s influence doubtless contributed strongly toward procuring for Randolph the agency to New England. He brought letters from Mason to friends in the colonies. The Massachusetts authorities at once spoke of him contemptuously as Mason’s agent. In this designation there was an element of truth, and the opinion from which it sprang was to an extent confirmed by the partisan attitude which Randolph presently assumed toward the colony which he was appointed to visit. He became the mouthpiece of all the enemies of Massachusetts, both in the colony and in England. During the month of his sojourn in the country he was busy collecting information, but it mainly came from the friends of Mason, and some of it was modified by Randolph’s own partisan feelings.

But the statement that Randolph was Mason’s agent contained only a fraction of the truth. It is true that in this, as in all cases of governmental action, private interests bore a share. Mason and Gorges were seeking their rights through an appeal to the crown. But the more important fact in the case was this, that the crown was using the appeal of Mason and Gorges as a means by which to lead or force the colonies of New England into closer relations with itself. Since the time of their settlement they had existed under a system of separatism

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and of de facto self government which was inconsistent with the main trend of events subsequent to the Restoration. Had they been colonies of the Greek city type, they could hardly have been more self-centred or independent of the metropolis. But in reality the British colonial system, like that of all other modern nations, was Roman and feudal, that is provincial, in character, and with the Restoration the forces which were moulding it after this model came permanently into operation. They came necessarily and at once into conflict with the democratic and separatist tendencies which were inherent in colonial life. The central thread of our colonial history is to be found in the record of that conflict. It did not occasion a resort to arms until the final stage was reached. But it was none the less a struggle, fought out in office, council house, and legislature; through orders, instructions, correspondence, and legal opinions; through speeches of governors and addresses of legislatures; by appointments, removals, appropriations, and the withholding of appropriations; by conferences and dissolutions and new elections,—in short, through all the twists and turns of executive and legislative action, prolonged through a century and repeated in nearly twenty distinct jurisdictions.

The story of Randolph’s reception by Governor Leverett and the council is too familiar to need extended repetition here. Randolph has given two versions of it, which in substance agree.¹ The governor treated him throughout with haughtiness and contempt. Some of the assistants maintained a similar attitude. Those who were so inclined kept on their hats while the king’s letter was being read. At the close of the reading the governor told the council that the matters contained in the letters were inconsiderable, easily answered, and needed no special notice. But in fact they contained the most weighty summons which Massachusetts had ever received, and Randolph told the governor that he was commanded to require an answer. On his second audience, Randolph’s

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pride was wounded, not only by being told that he was Mason’s agent, but by being informed that the reply to the king’s missive would be sent home by some other conveyance and he would receive only a duplicate. Upon this latter point some sharp correspondence passed between Randolph and the governor and Secretary Rawson. After that it was no longer possible that a friendly feeling should ever exist between the parties concerned. Randolph’s inquiries brought to his notice the fact that within a few days subsequent to his arrival two vessels with cargoes of liquors had arrived at Boston direct from France, and three from the Canary islands. Reports of other similar arrivals at earlier dates also came to his ears, while he knew not as yet how many vessels from foreign ports had landed at Piscataqua and in the other harbors of Massachusetts. When next he had a private interview with the governor, Randolph called his attention to these violations of the acts of trade. This drew from Leverett a declaration that “the lawes made by your Majestie and your parliament obligeth them in nothing but what consists with the interests of that colony; that the legislative power is and abides in them solely to act and make laws by virtue of a charter from your Majesties royall father, and that all matters in difference are to be concluded by their finall determinations without any appeal . . . “¹ There is no reason to doubt the possibility that such a statement as this was made, for in substance it was consistent with the entire course of the colony’s history and with more than one authoritative utterance of its magistrates and clergy.

The last interview which Randolph had with Governor Leverett, just before he sailed for England, revealed again the rooted antipathy of the men. During the past three weeks Randolph had been visiting the settlements on the Piscataqua. There, as elsewhere, he had met the supporters of Mason and had heard their complaints. While at Portsmouth, settlers from Maine had visited him and told him the same tale. Religious and political privileges, they are reported to have said, were denied them, and they were threatened with destruction by the Indians. All besought him to

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lay their condition before the king. If we are to trust Randolph’s statements, a similar cry was what he chiefly heard in Boston; while Governor Josiah Winslow of Plymouth is said to have expressed great dislike of the attitude of Massachusetts toward its neighbors, toward the king and the acts of trade. Leverett at their last interview called Randolph sharply to task for publishing his errand in the eastern parts, and thus provoking a disturbance and attempting to withdraw the people from their lawful obedience. Randolph was safe in replying that, if he had done anything amiss, the magistrates could doubtless obtain justice by appealing to the king.

In obedience to his instructions Randolph, on his return to England, presented a long report¹on Massachusetts, the fullest which the home government had yet received concerning that colony. In this report the government of Massachusetts was described; laws of the colony were cited which were alleged to be repugnant to those of England; it was stated that the oaths of allegiance and supremacy were not administered, while the oath of fidelity contained no recognition of the king; the military strength of the colony was estimated; reference was made to its extent and boundaries, to relations with the Indians and with neighboring colonies, to the products and the financial system of the colony, while he closed with a few observations on Plymouth and Connecticut. In this report, as was shown in a reply which was later made to it by the agents of Massachusetts in England,² were many exaggerated and erroneous statements, but in most cases these related to details which had no direct bearing on the points at issue. Randolph’s bias against Massachusetts was so strong that the historian need not be misled by it. He reflected what from the first had been the point of view of the Gorges-Mason group, intensifying it by his legal acumen and by the determination with which he fixed upon the acts of trade as furnishing ground for the establishment of permanent executive control over Massachusetts. The departure of the

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New England colonies, and of Massachusetts in particular, from the spirit and governmental forms which were favored by English officials was so marked that there was little necessity for even Randolph to exaggerate them in order to produce an impression. The statements which he makes concerning the chief features of the situation are in general agreement with facts and confirmed from other sources.

As soon as Randolph had sailed on his return voyage, a special session of the general court of Massachusetts was called. The clergy were consulted respecting the best way in which to make reply to the complaints of Mason and Gorges. Should it be through agents or by letter?¹ Their advice was that agents should be sent, but that they should be carefully instructed. William Stoughton and Peter Bulkely were appointed agents, and a committee with Simon Bradstreet at its head was appointed to prepare an address to the king. The address dwelt on the sufferings of the colony in the Indian war and on the arguments of the colony in support of its claims to territory north of the Merrimac river. It was accompanied with a full history of the origin of those claims and a statement of the benefits which, it was affirmed, had come to the inhabitants of that region by the assertion of the claims.

To the agents, besides letters to the secretaries of state, two sets² of instructions were given. One was signed by the governor and commanded them to act only in matters which related to the claims of Gorges and Mason, and to plead lack of instructions on all other points. The other instructions required them in addition to seek aid from the Earl of Anglesey and other lords of the council in England who were friends of the colony, and, if they found that Mason and Gorges would sell their interests in New England, to buy them out. Thus, in harmony with the literal interpretation which Massachusetts placed upon the king’s letter, the agents were to be her attorneys in the suit with Mason and Gorges.

Stoughton and Bulkely arrived in England in January,

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1677. They very soon found that affairs of much wider scope than the claims of Mason and Gorges were under discussion. Randolph was persistently urging upon the attention of the privy council and the plantation committee the relations of Massachusetts to the crown and to England in all their phases. Moreover, information was sought from him, and attention was paid to his representations.

On May 6 Randolph submitted a paper on the affairs of Massachusetts, which was referred to the privy council, came before the lords of trade and plantations, and with the petitions concerning trade was the subject of extended consideration.¹ In this paper the right of Massachusetts to its charter, and consequently to land and government, was boldly challenged. Justification for this challenge was sought in statements some of which were gross exaggerations. It was declared that the inhabitants of Massachusetts had formed themselves into a commonwealth, denied the right of appeal, and did not administer the oath of allegiance. They had protected the regicides, coined money, put subjects of the king to death for opinion in matters of religion. They had violently opposed the attempts of the royal commissioners to regulate the affairs of New Hampshire, and later by armed force had turned out his Majesty’s justices of the peace in Maine. They imposed upon all inhabitants an oath of fidelity to their own government. Finally, by violating the acts of trade, they had monopolized the larger part of the West India traffic and occasioned a loss to the kingdom in customs duties of more than £100,000 a year.

Randolph did not in the least shrink from the practical conclusion to which his charges led. Let Massachusetts, he said, be at once organized as a royal province, and let Sir John Berry, who was then in Virginia as royal commissioner, be sent thither with a military and naval force for the purpose. Liberty of conscience should be granted, and the inhabitants should be confirmed in the possession of their lands and houses on the payment of an easy quit rent. A general pardon should be granted for illegal acts in the past.

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The persons in the colony who were most eminent for estates and loyalty should be commissioned by the king as a council for the government of the province. The general court, or a representative assembly in any form, should disappear. Those among the present magistrates who showed themselves submissive should be pensioned and receive some title of honor. This was in substance the plan which was put into operation ten years later. Legal obstacles to its immediate execution presently appeared, but it ever remained as the object toward which the policy of many English officials and lawyers of the time was tending.

When the lords of trade and plantations and the privy council came to consider Randolph’s paper,¹ they decided that certain parts of it should be laid before the judges for consideration and other parts before the privy council. Those parts which especially concerned the right of the colony to its charter were referred to the judges, together also with the Massachusetts book of laws. Other matters, bearing more closely on conduct under the charter, were referred to the privy council. The laws of Massachusetts were also laid before the attorney general and the solicitor general for their opinion concerning their agreement with the laws of England.

Chief Justices Rainsford and North, the former of King’s Bench and the latter of Common Pleas, promptly delivered the opinion which was requested, both concerning the validity of the Massachusetts charter and concerning the right of Massachusetts to New Hampshire and Maine.² A hearing of all parties concerned who were in England had been held. The judges pronounced the royal charter of Massachusetts valid, inasmuch as by the indenture of 1628 to Roswell and his associates, the New England council was understood to have granted away all its interest in the lands of that region. Whereupon it was lawful for the king to establish a suitable frame of government, which was done by the charter of 4 Charles I. The judges also made the remarkable declaration, that by their charter the patentees had been made a corporation

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upon the place. Thus the idea that the proceedings of 1635 had dissolved the corporation was laid to rest and for practical purposes it was made clear that the legal residence of the Massachusetts company was in New England. The opinion on both these points vitally affected the program of Randolph. It interposed some serious legal obstacles in the way of its execution.

The opinion of the justices concerning the claims of Mason and Gorges was equally illuminating. At the hearing the agents for Massachusetts, or their counsel, had disclaimed title to the laud. Mason and Gorges were convinced by their counsel that they could not claim rights of government under the grants from the New England council. The validity of Gorges’ claim to rights of government under the royal charter of 1639 was, however, fully recognized. Such a document the heirs of John Mason could not produce, the conclusion being that rights of government in New Hampshire were not vested in any one save the king. The sophistries of Massachusetts, so far as they affected the settlements on the Piscataqua and in Maine, were swept away by the declaration that its north and south bounds, as indicated in the language of its charter, must follow the course of the rivers, as far as the rivers went, and then be extended by imaginary lines to the South Sea. The effect of this opinion, if followed, was to transfer the boundary dispute from the coast to the region west of the upper course of the Merrimac river.

Sir William Jones, the attorney general, in an opinion¹ delivered somewhat later, went more at length into rights to the soil within Mason’s original grant between Salem and the Merrimac river. He showed that the early grants to Mason and Gorges, though under the seal of the New England council, had not been witnessed or recorded, that seizin had not been endorsed on them. Therefore, in his opinion, they would not avail against fifty years of undisturbed possession under the Massachusetts law. In such cases, as suggested by the chief justices, the right to the

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soil was probably vested in the actual occupiers; although that was a question to be settled in detail by the courts on the place. But it may be said that Mason’s lands north of the Merrimac were actually occupied by him and his agents before Massachusetts law was introduced. It is therefore clear, in the light of Jones’s opinion, that Mason’s territorial claims in New Hampshire were valid.

The attorney general and solicitor general now reported on the laws of Massachusetts, which they found repugnant to those of England or of doubtful validity.¹ Naturally they were ready to discard many or all of the laws which were derived from the Mosaic code. All expressions which referred to the colony as a commonwealth or to the general court as the chief civil power in the commonwealth, they would at once exclude. The failure to provide by law for the. administration of the oath of allegiance to the inhabitants was a fatal defect, as was the introduction of clauses into official oaths which tended to limit the obligation of obedience to the king. The law providing for civil marriage, that which prohibited the celebration of Christmas, those which enforced a scrupulous observance of the Sabbath, were condemned. So was that by which the power to coin money was assumed. The fact was noted that Massachusetts had no law respecting high treason, and that military officers were not sworn to obey the king. The laws against heresy also came in for unfavorable comment, as did the acts by which import duties were laid, these being regarded as taxes on English merchants.

In a series² of papers which emanated from Randolph and Mason, the claim was still urged that the Massachusetts company was made a corporation resident in England; that it never had jura regalia, and therefore could never legally inflict the death penalty or fulfil other higher functions of government. In other words, it was legally no more than any private corporation, or at most, any municipality in England. Furthermore, the claim was urged that, inasmuch as the New England council was in existence when the royal

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charter was granted to Massachusetts, rights of government could not have been legally bestowed on the Massachusetts patentees. It was not admitted that the New England council had previously resigned its rights over the territory which was the subject of the Massachusetts grant. If it had not done so, and rights of government had been bestowed on the Massachusetts grantees, two patentees of the crown would have held the right to govern the same territory at the same time—a manifest absurdity. Moreover, the right of Massachusetts to the government could not have originated when the New England council resigned its charter. It was also claimed that the quo warranto proceedings of 1635 had effectually dissolved the Massachusetts company. Though these views were not accepted by the English government, they raised questions which had always been of serious import, and involved the source of the opposition against which Massachusetts had always to contend. The men who raised these issues dealt with no “inconsiderable things,” and were more than the mere agents of a private land speculator.

Immediately after the opinion of the chief justices had been read before the privy council, the agents from Massachusetts were called in.¹ When questioned in reference to points other than Mason’s claim, they plead lack of instructions and said they could answer only as private men. Speaking in that capacity they briefly excused the conduct of the colony or defended it against the charges which had grown out of its alleged treatment of the royal commissioners, of the regicide judges, of the Quakers; its use of the term commonwealth, its neglect of the oath of allegiance, its law against Christmas, its coining of money, levy of customs duties, and violations of the acts of trade. At subsequent hearings the continued grant of special privileges to church members in Massachusetts, after the passage of a law which implied the opposite, was condemned. The agents were told that the laws which were inconsistent with those of England must be repealed; that the acts of trade must be strictly enforced; that Massachusetts, as the condition of receiving a new patent, must beg pardon of the king for coining

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money. She must also confine herself within the bounds which had lately been specified by the judges, while the rights both to soil and government in regions outside those bounds should be settled under special authority from the king. Touching the statements of the agents concerning defect of powers, they and their principals were informed that the king did not think of treating with his subjects as with foreigners, but that all things which were fit and consistent with his service should be done. The agents thus found themselves forced to answer and receive orders on a multitude of questions concerning which they had no instructions. Their sojourn in England was also indefinitely prolonged. About these difficulties they wrote to Massachusetts.

When the news reached the colony, the general court ordered the oath of fidelity to be taken by all who had not received it, and also that the acts of trade should be faithfully obeyed by all officers who were concerned.¹ The court stated, with its usual self assurance, that it had thought Massachusetts was not bound by the acts because the laws of England did not extend beyond the four seas and the colony was not represented in parliament. Learning, however, the desire of the king, it had ordered them enforced. Consent of the court to their enforcement was regarded as necessary, else liberty and property would be invaded.

The policy of the general court in reference to the eastern settlements was indicated by the despatch of a petition that the four New Hampshire towns might remain under Massachusetts government, and by an instruction to the agents to buy out the claims of the Gorges heirs. This the agents soon did, much to the chagrin of the English authorities. The sum of £1250 was paid. An effort was also made to buy out Mason, but without result.

After some further hearings before the lords of trade and plantations, in which nothing new was brought forward except an emphatic protest from Randolph against the religious test, there was a lull in proceedings until the spring of 1678. Then hearings before the committee of trade were renewed

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and the law officers were asked to inspect the charter.¹ The report that the general court had again ordered the oath of fidelity to be taken drew from Randolph additional complaints.² These led to the administration of the oath of allegiance to the agents in England. The law officers of the crown, Jones and Winnington, then reported³ that the quo warranto proceedings of 1635 had not dissolved the Massachusetts company, but the maladministration which had followed had been sufficient to justify the forfeiture of its charter. Based on this, a report to the king was prepared by the committee of trade and plantations in favor of the issue of a writ of quo warranto against the charter. They also recommended the appointment of Randolph as collector of customs at Boston, and soon after Randolph received the appointment.⁴

As the summer of 1678 passed by without decisive action on the part of Massachusetts, the lords of trade became convinced that a general governor must be appointed. The agents had meanwhile replied, so far as they were able, to the report which Randolph had first presented on New England affairs; also to a long petition and complaint from Randall Holden and John Greene of Warwick, Rhode Island. Considering their business done, they begged to be permitted to return home, but were told that they must remain till a final resolution was reached.⁵ They were kept in England until after the outbreak of excitement over the Popish Plot, when, in the fall of 1679, they were allowed to return. The general court had meanwhile ordered the administration of the oath of allegiance to all inhabitants of the colony who were sixteen years of age and over. The official use of the word “commonwealth” was discontinued, and a severe law of treason was passed, which provided that any one who should publish any design against the life or government of the king, whether by writing, preaching, or speaking, should be punished with

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death. Further than this the court showed no inclination of going.¹

The agents, on their return, took with them a letter from the king, in which the court was commanded to send other duly instructed agents² in six months after the receipt of the letter. Though a degree of satisfaction was expressed with the steps which Massachusetts had taken to conform with the desires of the home government, much more still remained to be done. By this letter the colony was required to admit to the suffrage all men who were ratable at 10s.,³ that the full number of eighteen assistants should be elected, that all commissions should be issued and all judicial proceedings conducted in the name of the king. Disapproval of the purchase of Maine was expressed, and Massachusetts was told to stand ready, on reimbursement by the crown of what it had paid, to deliver up the deeds which it held for that province. All commissions which ran into New Hampshire were declared to be void, and the statement was made that the king was considering the reorganization of its government.

In the election of May, 1679, the moderate party in Massachusetts won a victory. Bradstreet was chosen governor in the place of Leverett. In the session of February, 1680, some further concessions were made.⁴ A form of commission for military officers was prepared by which they were authorized to act “in his Majesty’s name.” Provision was made for the election of eighteen assistants. Commissions to the four New Hampshire towns were withdrawn. As Massachusetts considered herself proprietor of Maine, with the powers which Gorges had formerly possessed, an order was now passed for the establishment there of government for one year, under a president, justices, and other officers, as provided in Gorges’s patent. The officials were to be commissioned

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under the seal of Massachusetts.¹ It however remained true that rights of government could not be transferred by purchase and sale. The crown took no steps to confer governmental rights in Maine on the colony of Massachusetts. In view of this fact the exercise of such powers in Maine was of very doubtful legality, and that defect attached to them until after the revocation of the Massachusetts charter.

The command to once more send agents to England and to change the law concerning the suffrage caused the general court the greatest perplexity.² The serious consideration of the matter was postponed until the session of May, 1680. The court even then delayed long over its reply. Soon after the beginning of the session it sent a letter to the Earl of Sunderland, stating what had been done by the February court, and that the inclemency of the season had prevented many from attending; that for this reason the remaining commands of the king’s letter had been postponed until the present court; but further reply, they said, was prevented by the sudden departure of the ship on which this letter was sent. The court prolonged its session until June 11, when another letter was sent to Sunderland.³ In addition to what had been stated before, this letter informed him that a committee had been appointed to examine the laws of the colony preparatory to the repeal of those which were found repugnant to the statutes of England. They affirmed that, in regard to liberty of conscience, no occasion for complaint should be given to Protestant dissenters who remained peaceable; but this privilege must not be understood to extend to Quakers and to other notorious heretics. The purchase of Maine was defended, as was also the existing law concerning the suffrage, and the latter was so interpreted as not to include the Anglicans among the heterodox. Various excuses were offered for the delay in sending over agents, among them being the financial straits to which the colony had been reduced by the Indian war, and the report that the English government was occupied with other matters.

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In September, 1680, the king wrote again to Massachusetts in a strain of great irritation, commanding that within three months after the receipt of his letter agents should be sent to England fully instructed, not only in reference to the settlement of affairs in Massachusetts, but concerning the claim which Mason was now urging to territory between the Naumkeag and Merrimac rivers. This letter was brought over by Mason, who now came to New England to support in person his various territorial claims. A special session of the general court was called, January 4, 1681,¹ and the letter was read before this body. The brief entries which follow in the court minutes show that daily sessions for more than a week were occupied with debates on the perplexing situation with which the colony was confronted. Much attention, we are told, was also paid to the revision of the laws, with the view of eliminating, if possible, the provisions to which the law officers of the crown had objected. The debates were continued through an adjourned session in March, and at the regular court of election in May, 1681. Some changes in the laws were agreed to, among which was the omission of the act against observing Christmas, and the repeal of the law which provided that Quakers who returned to the colony after banishment should be put to death.

The selection and appointment of agents gave rise to other difficulties. If, twenty years before, this service was considered a thankless task, much more was it so now. Algerine pirates had recently captured William Harris of Providence, as he was on a voyage to Europe, and this circumstance suggested other perils than those which the agents would have to meet when once they should reach England and attempt to satisfy both the demands of the home government and the claims of the colonists. William Stoughton and Samuel Nowell were first selected, but Stoughton did not desire to repeat his former experience as agent and declined the appointment. John Richards, a magistrate and man of prominence among the merchants of Boston, was chosen in his place. A letter was then written to Sir Lionel Jenkins,²

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explaining in part what had already been done and pleading excuses for delay. But still the agents were not sent.

Randolph, meantime, had returned to England after his first year’s residence at Boston as customs officer. His mind was filled with details of the obstructive tactics and the spirit of opposition which he had met with in Massachusetts. These he poured into the ears of the crown officials, urging quo warranto proceedings and the recall of the charter as the only sufficient remedy for the evil. Massachusetts, he said, should then be governed by a commission, like that which had recently been appointed for New Hampshire, until the time should come for the despatch of some royal appointee—Lord Culpeper, for example—as governor. While Randolph was in England the letter from the general court to Jenkins arrived, but not the agents. An order in council was accordingly issued in which, though it directly related to the encouragement of Randolph as customs officer and to measures for the enforcement of the acts of trade, expressed strong doubt of the truth of the excuses for delay in the despatch of agents. The order was accompanied by a long letter,¹ drafted by the lords of trade, in which, after reviewing in severe terms the obstructionist tactics of Massachusetts as practised in 1635 and continuously since the Restoration, denouncing them as “irregularities, crimes, and misdemeanors,” the colony was charged to forthwith send over fully instructed agents, in default whereof at the next Trinity term quo warranto proceedings would be instituted in the King’s Bench. This letter, the spirit of which he could fully approve, Randolph brought to Boston on his return at the close of 1681.

The magistrates and elders now saw that further delay would be impossible, and the general court was called together at the middle of February, 1682. The agents were at last appointed, Joseph Dudley taking the place to which Nowell had previously been assigned.² With this appointment Dudley was fairly launched upon his conspicuous career as a moderate in Massachusetts politics, an attitude in

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which he was confirmed by the experience that he was now to have in England. Detailed instructions were given to the agents, they being directed to reply to all the charges which had been made in the letter that had just been received. In reference to the coining of money they were to plead necessity and seek the king’s pardon for offending against the law. They were also to admit that in some cases the colony rate of one penny in the pound had been levied on non-residents, but were also to claim that this was necessary as a means of providing for defence. In general the circumstances of their position as colonists should be plead in extenuation of any departures from the strict terms of the charter. They were to state that no law had ever been passed prohibiting Anglican worship in the colony, and none then existed against Baptists, while the earlier proceedings against Quakers had received the approval of the king. It was asserted that others than Congregationalists were admitted as freemen, and the belief was expressed that under the charter the court might admit whom it chose into the company. The agents were ordered to state that all due provision had been made for the enforcement of the acts of trade, and they were to explain the court charges imposed upon Randolph when be insisted that extra sessions should be called to try revenue cases. They were instructed to insist that appeals would be an intolerable burden. The course which Massachusetts had followed in Maine should be defended, and the agents should insist that, if trials of suits arising out of Mason’s claim to land south of the Merrimac river became necessary, they should be held in Massachusetts. At the close of the instructions the agents were required not to consent to anything which might infringe the liberties granted in the charter, and if anything was proposed which implied this they were ordered to plead lack of power. This brought the negotiation—for such it essentially was—back to the point where all the earlier efforts which had been made to reach an understanding had broken down.

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When, in August, 1682, Dudley and Richards arrived in England and presented the defence¹ of the colony as they had been instructed, it was declared to be unsatisfactory. Randolph had in the meantime kept up his correspondence, with its usual burden of accusation, and had actually filed with the English authorities a series of articles² against the general court of Massachusetts. When, therefore, the agents were told that they must procure additional powers or suit against the charter would be at once³ begun, Randolph was summoned to England to aid in the prosecution.

The agents immediately informed the general court of the attitude of the home government. A special session of the court was called, February 7, 1683,⁴ and the questions at issue were again debated at length. A new set of instructions to the agents was prepared, and more letters were sent. But they implied no change in the situation. The burden of them all was that the government of Massachusetts was satisfactory to its inhabitants, and while they were willing to submit to such regulations as would bring its administration into agreement with the charter, beyond that they would not willingly go. To any essential change of system they would not consent. In the instructions this appeared with the utmost clearness. “Whereas, in our commission & power sent to you our general limitation is the saving to us the main ends of our coming over into this wilderness, you are hereby principally to understand our liberties & privileges in matters of religion & worship of God, which you are therefore in no wise to consent to any infringement of.” They were also not to consent to appeals, but to refer such decision of the home government to the general court. In regard to the admission of freemen, the general court insisted that it had complied with the king’s demands, and the agents should consent to no modification of the law on that point. They were not to agree to any change in the organization of the

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general court or to the removal of the seat of government. These instructions meant that a voluntary abandonment of the system on which the colony had been founded was not to be expected. In a letter the agents were told that they might surrender Maine, if that would save the charter, but they were not to consider themselves empowered to answer a quo warranto.

Late in the spring of 1683, Randolph arrived again in England. He was at once ordered to attend the attorney general with proofs and charges.¹ He submitted twelve charges, among them being the allegation that the colony had passed laws repugnant to those of England, that it had levied taxes on non-freemen and customs duties on goods from England, that an oath of fidelity had been imposed notwithstanding the orders of the king to the contrary, that the right of appeals was denied, that they coined money, that the execution of the laws of trade was opposed, that members of the Church of England were discountenanced and were forced to attend the religious meetings which alone were recognized as lawful in the colony. The resolve of the government had already been taken, and before Randolph had been in London a month Attorney General Thomas Jones filed an information in the nature of a writ of quo warranto,² addressed through the sheriff of London to the magistrates of the Massachusetts company, commanding them to appear the next Michaelmas term to show by what warrant they enjoyed certain franchises, whether in the kingdom of England or in parts across sea. Some three weeks later Randolph was appointed messenger to take the information to Massachusetts, while at the same time the agents were excused from further attendance. Randolph was furnished with two hundred copies of a royal declaration to the effect that in Massachusetts³ private rights and property would be respected, and if submission was made, only liberal regulations of the charter would be enforced.

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Randolph arrived in Boston on October 26. On November 7, less than two weeks after his arrival, the general court was summoned. At first the magistrates voted in favor of submission, but to this the deputies refused to agree, and defended this attitude in a long series of arguments, the extant statement of which is supposed to be from the pen of Increase Mather.¹ The only positive action taken was the appointment of Robert Humphreys,² a London barrister, as attorney for the colony, “to save default and outlawry for the present.” He was instructed to delay action as long as possible, to question the jurisdiction of King’s Bench over franchises exercised in America, and the authority of the sheriff of London to serve a writ on persons who were never inhabitants of England. He was also to show that the writ was not served on the parties concerned until the time of appearance was past. The last mentioned point was a most important one, and, as the event proved, effectively blocked procedure under the quo warranto. The time set for the return of the writ at Westminster was early in November, a date which had already arrived or was past when the general court was called together and the writ was laid before it.

As soon as the decision of the general court was reached not to make submission, Randolph started on his return voyage to England. He arrived there and reported the failure of his errand about the middle of February, 1684.³ His report was referred, through the committee of trade and plantations, to the attorney general, who was now Sir Robert Sawyer. On May 13 Sawyer reported⁴ that the quo warranto had been drawn in the ordinary form, but had not been delivered until after the return of the writ was out; because of this, and of doubt whether notice could be taken of New England because it was outside the bailiwick of the sheriff of London, a return could not be made. “I think,” continued Sawyer, “that the best way to reach them will be by a

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scire facias against the Company to repeal the patent, and upon a nihil returned by the Sheriff of London, a second special writ being directed to Mr. Randolph, who shall give notice in time before the return of the writ who may make return thereof.”

Under the writ of scire facias, according to the rules of procedure which then obtained, after the sheriff or his agent had twice returned nihil, and that too within a brief period, the prosecutor could enter a rule for the defendant to answer within eight days, or judgment would be entered by default to avoid the patent.¹ If the defendant made default, the charter could be voided without his receiving any notice. It was for this reason that Attorney General Sawyer, as soon as he was informed of the failure of Randolph’s attempt to serve the quo warranto in time for a legal return, advised that the process of scire facias should be resorted to. This course the government adopted, and the Massachusetts charter was cancelled. The final decree was entered October 13, 1684.

The words of the decree, which was entered after the second return of nihil, were as follows: “Whereupon the aforesaid Robert Sawyer knight, the king’s Attorney General who prosecutes this cause for our Sovereign Lord the King, prayed Judgment and that the said Letters Patents, soe as aforesaid to the said Governor and Company made and granted, the Inrollment of the same, for the reasons aforesaid forfeited; be Cancelled, vacated and annihilated and restored into the Chancery of our said Sovereign Lord the king there to be Cancelled. And the said Governor and Company, the fourth Day of the Plea of Eight daies of the holy Tranity above menconed, before the king in his said Chancery here, That is to say att Westminster aforesaid, being solemnly called, did not appeare but made default, whose default is recorded

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by the said Court here. Therefore by the said Court here itt is adjudged that the aforesaid Letters Patents . . . and the inrollment thereof be vacated, Cancelled and annihilated, and into the said Court restored there to be cancelled.” The main features of the process appear in the language of the decree. It was summary and the decree wad entered after default. But it was effective, and by no other judicial process was any corporation resident in America reached during that period of colonial history.

When, two years later, Randolph was charged with the service of quo warranto writs against Rhode Island and Connecticut, he wrote, “Now to the intent the time limited for serving the writ upon the Governors and Companys of those Collonys may not be lapsed by delays and the difficulties of a winter voyage, and his Majesty’s prosecutions thereby rendered ineffectual, as it was in serving the writ of quo warranto against the Boston charter, it is humbly proposed, that in three weeks time at farthest a ship is bound from London directly to New England, by which the quo warranto may be sent and served accordingly, to the end there may be no delays made in that affair.”¹

The charges which were selected from the list that Randolph submitted, and which appear in the decree of Chancery as those upon which the charter was declared void, were these: that taxes had been unlawfully levied on non-freemen and non-residents, that money had been coined, and that an oath of fidelity had been administered. From the political and historical standpoint these were not the most important among the offences of Massachusetts. But they were probably regarded as in a peculiar sense transcending the rights of a private corporation, and in this light the lawyers of the time always regarded Massachusetts. For this reason it is likely that they were selected, and they were sufficient for the purpose.

The immediate effect of the decree, as soon as the home government took the steps required for its execution, was to dissolve the general court and bring it totally and forever to

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an end. With it disappeared the freemen, the system of elections, and much of the official system which had been developed within the colony. Local government in the towns was the part which least felt the shock. The completeness of the change was due to the fact that, owing to the peculiar origin of the corporate colony, the corporation and the colony had been merged and had become one and the same structure. Therefore the destruction of the former also effectually wrecked the latter. Had the corporation continued resident in England, its dissolution would not necessarily have affected an assembly which it might have granted to its colony. That would have remained as a concession which the power that succeeded to the corporation would have been bound in the interest of liberty to continue in existence. When the charter of a corporate colony was taken away, that result would not follow without an act creating the general court or assembly anew. That was a penalty which the corporate colony was bound to pay as the price of its earlier and more complete independence, and Massachusetts was made to feel the reverse and humiliation to the full. The struggle had been a long one, and the triumph of the home government seemed correspondingly great. The citadel of colonial independency had fallen. The path toward consolidation and the establishment of vigorous administrative control seemed open, and the group of officials who supported this policy and who had wen the battle were not slow to enforce the changes which it implied.

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