USA > Massachusetts > Suffolk County > Boston > The memorial history of Boston : including Suffolk County, Massachusetts, 1630-1880. Vol. I > Part 50
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In the mean time, Randolph, who we have already seen arrived in Boston in the latter part of January, 1679-80, entered at once upon the duties with which he was charged. He seized several vessels with their lading, but the courts and juries refused to condemn them. "His Majesty's authority," he writes, summing up his first experiences, "and the Acts of Trade were disowned openly in the country, and I was cast in all these causes, and damages given against his Majesty." He informs the author-
1 Palfrey, New England, iii. 333-338; Mass. Col. Rec. v. 270, 271, 237, 239.
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THE CHARTER OF KING CHARLES THE FIRST.
ities at home that it was now "in every man's mouth that they were not subject to the laws of England, neither were those of any force till con- firmed by their authority." He was stimulated by his personal vexations, and sent home a memorial to the King, urging a proceeding against the charter by a writ of quo warranto. He made a series of charges, reduced to several heads; the first of which was " that the Bostoneers have no right either to land or government in any part of New England, but are usurpers, the inhabitants yielding obedience unto a supposition only of a royal grant from his late Majesty." 1 He now left Boston, retiring for a season to New Hampshire. ITis letters produced their natural effect on the Government at home, and stimulated it to renewed activity against the Colony.
ยท On the 30th of September, 1680, the King addressed a letter to the Colony, charging them with neglecting to send over agents in the room of Stoughton and Bulkley, who obtained leave to return home; and alleging that in other respects his directions to the Colony had not been complied with. He now commanded that agents be sent over in three months after the receipt of this letter, prepared also to answer a new claim which Robert Mason had made to lands between Naumkeag and Merrimack rivers. The King expressed " care and tenderness " for the Colony, and a desire to remove " those difficulties and mistakes that have arisen by the execution of the powers of your charter at such a distance from us, which by the first intendment and present constitution thereof (as by the charter appears) has its natural seat and immediate direction within our kingdom of England." 2
On the receipt of this letter, which was brought by Robert Mason himself,3 who arrived Samuel Nowile December 17, a special session of the Court was called to meet Jan. 4, 1680-81. After considerable debate, two agents, William Stoughton and Samuel Nowell, were chosen. The former declined, and John Richards was chosen in his place. But the popular party inter- posed delays, and the elected messengers still remained at home.
Randolph sailed for England before the Court broke up.4 This emissary kept a constant watch upon the Colony, going to and fro continually, and always returning home with fresh complaints, thereby arming himself with new orders and powers. In a representation of his services subsequently made to the Committee of the Council he says he had made eight voyages to New England in nine years.5 He now lost no time in urging upon the Gov- ernment decisive action against the Colony. He said that a " quo warranto would unhinge their Government, and prepare them to receive his Majesty's further pleasure. I have often in my papers pressed the necessity of a General Governor as absolutely necessary for the honor and service of the Crown."
1 These charges, substantially repcated clsc- where in this paper, are copied by Palfrey, New England, iii. 339, from Colonial Papers; with which compare Hutchinson, Papers, P. 525; also Randolph's Narrative in Mass. Archives, cxxvii.
2 IIutchinson, Coll. of Papers, PP. 524, 525.
3 The heir to New Hampshire.
4 He sailed from Boston, March 15, 1681.
5 Hutchinson, MMass. Bay, i. 329. He crossed the Atlantic eight times in nine years.
372
THIE MEMORIAL HISTORY OF BOSTON.
As winter approached, Randolph again appeared in Boston. He was now armed with new power for mischief. He arrived December 17, 1681, with a commission as Deputy-Collector, or under officer, within all the colonics of New England, except New Hampshire; William Blathwayt having been commissioned Surveyor, &c. He was coldly received, as his commission was looked upon as an encroachment on the charter of the Colony.1 He brought, at the same time, a long and remarkable letter from the King, which was well calculated to awaken serious apprehensions.
The letter charged the colonists with having, " from the very beginning, usetl methods tending to the prejudice of the Sovereign's rights, and their natural dependence on the Crown." It recited the proceedings under the quo warranto in the tenth year of King Charles the First. It complained of the protection that had been afforded to the fugitive judges of that monarch ; of the hard treatment dealt to many of his subjects, who had been denied appeals to English courts; of the ousting of Gorges and Mason from their estates, and the alleged usurpation of Massachusetts over the Eastern country ; of the opposition to the commissioners sent to New England by Lord Clarendon ; of the offences more recently brought to light, as illegal coining of money, violations of the laws of trade and navigation, and legis- lative provisions "repugnant to the laws of England and contrary to the power of the charter;" of the pertinacious disregard of the royal command for an appearance of the Colony by agents, which continued to be evaded under " some frivolous and insufficient pretences ;" and, finally, of the offensive obstructions which had been placed in the way of the Collectors of the Customs. The peremptory conclusion of the letter was as follows :
" These and many other irregularities, crimes, and misdemeanors having been ob- jected against you (which we hope, nevertheless, are but the faults of a few persons in the government), we find it altogether necessary for our service and the peace of our Colonies that the grievances of our good subjects be speedily redressed, and our authority acknowledged, in pursuance of these our commands, and our pleasure at divers times signified to you by our royal letters and otherwise ; to which we again refer you, and once more charge and require you forthwith to send over your agents fully empowered and instructed to attend the regulation of that our Government, and to answer the irregularity of your proceedings therein. In default whereof, we are fully resolved, in Trinity Term next ensuing, to direct our Attorney-General to bring a quo warranto in our Court of King's Bench, whereby our charter granted unto you, with all the powers thereof, may be legally evicted and made void. And so we bid you farewell." 2
The sending over of agents could now no longer be delayed. At a Court called in February, 1681-82, at which the King's letter was read, after several ballotings, " by papers," they finally chose Mr. Joseph Dudley and Mr. John Richards as agents.
1 He says a law was revived to try him for his life for acting by his commission before it was allowed by them.
2 Chalmers, Annals, pp. 443-449 ; Palfrey, New England, iii. 350, 351 ; the letter was dated Oct. 21, 16SI.
373
THE CHARTER OF KING CHARLES THE FIRST.
The design of taking away the charter became more and more evident. The requisition of the King, that agents should be sent over empowered to submit to regulations of government, meant, in other words, agents empow- ered to surrender the charter. The General Court, however, werc unwilling to place such an interpretation upon the language, being contrary to the King's repeated declarations ; and they instructed their agents to consent to nothing which should violate or infringe the liberties and privileges granted by charter, or the government established by it. To the charge of coining money, now added to the allegations, they excused themselves, "it having been in the times of the late confusions, to prevent frauds in the pieces of eight current among them, and if they have trespassed upon his Majesty's prerogative, it was through ignorance, and they humbly begged his pardon." 1
In an address to the King, the General Court entreated forbearance. They ordered the Aets of Trade and Navigation to be forthwith proclaimed in the market place in Boston. They appointed naval officers, repealed the laws under the titles " Conspiracy " and "Rebellion," and directed that the word " jurisdiction" should be substituted for " commonwealth," and revised the law of trcason.
But nothing could assuage the persevering hostility of Randolph. He had this year exhibited "Articles of high misdemeanor against a faction in the General Court," alleging their attempt to obstruct him in the business of his office, and refusing to admit his Majesty's letters-patent creating the office of Surveyor, &c., in America.2
The agents arrived in England after a long passage of nearly twelve weeks, and they immediately entered upon their labors of defending the Colony from the charges brought against it.3 In an elaborate paper they took up, in their order, the several allegations and requisitions in the King's letter of July 24, 1679, and made a full answer to them.+ As to the delay in sending agents, they urged the danger of the seas and the extreme poverty of the Colony, having incurred a debt of twenty thousand pounds sterling for the expenses of the Indian war; that there was no law or custom in Massachusetts preventing the use of the English liturgy, or the election of members of the Church of England to office ; that the ancient number of eigh- teen Assistants had been restored, agreeably to the royal command ; that all official persons took the oath of allegiance; that military commissions and judicial proceedings were in the King's name; that " all laws repugnant to, or inconsistent with, the laws of England for trade were abolished;" that Randolph's commission had been recognized and enrolled, and that he and his subordinates had been subjected to no penalties but such as were necd- ful " to the providing damages for the officers' unjust vexing the subjects ;" and that in Massachusetts the Acts of Trade and Navigation had " been fully put in execution to the best discretion of the Government therc."
1 Hutchinson, Mass. Bay, i. 334, 335-
2 Hutchinson, Papers, P. 526.
3 They arrived about Aug. 1682. Their instruc. tions may be seen in Mass. Col. Kec. v. 346-349.
4 This paper, presented in August, 1682, may be seen in Chalmers's Annals, pp. 450-461. The summary I give is from Palfrey's New England, iii. 369, 370.
377
THE MEMORIAL HISTORY OF BOSTON.
They restated in full the position of their Colony in relation to the claims of Gorges and Mason, and they concluded by expressing the hope that the de- mand for appeals to the King "in matters of revenue " might be reconsidered.
AAll this, however, availed but little. The agents who had submitted their commission to Sir Lionel Jenkins, the Secretary of State, were soon told, as the decision of the Privy Council, that unless they obtained further powers without delay the Colony would be proceeded against upon " the first day of Hilary Term next," which fell upon the 23d or 24th of January ; and " in the mean time the said agents were to continue their attendance here." 1
There was a determination now, on the part of the courtiers, to proceed to extremities. An order was sent to Randolph to return to England and prosecute a quo warranto. Letters were received from the agents, dated September 28 and October 3, representing the case of the Colony as des- perate, leaving it to the Court to determine whether it was most advisable to submit to the King's pleasure, or to suffer a quo warranto to issue.
The General Court of the Colony met in March, 1683, and after "due consideration and debate " resolved on a humble address to the King, and a new commission and instructions to the agents. The agents were author- ized " to accept of and consent unto such proposals and demands as might consist with the main end of their predecessors in their removing hither with their charter, and his Majesty's Government here settled according thereto." But these new instructions imposed also serious restrictions to their powers. They were in no wise to consent to any infringement of their privileges of religion and worship. In a private letter the agents were authorized to deliver up to the King the deeds to the Province of Maine, if such a surren- der would help to save their charter, &c.
Randolph sailed for England soon after the Court, whose proceedings have just been referred to, was dissolved. He was immediately closeted with the Attorney-General, and produced his proofs and charges against the Government of the Massachusetts. 2 The whole matter had been planned beforehand, and the proceedings were speedy. " Before Randolph had been a month in England he had virtually accomplished the purpose of his am- bition and revenge. The blow with which the Colony had been so long threatened was struck. The writ was issued which summoned it to stand
I Orders in Council for Sept. 2, 16S3.
2 The following abstract of Randolph's charges is taken from Chalmers's Annals, p. 462 : " 1. They assume powers that are not warranted by their charter, which is executed in another place than was intended ; 2. They make laws repugnant to those of England ; 3. They levy money on subjects not inhabiting the colony (and consequently not represented in the Gen- eral Court) ; 4. They impose an oath of fidelity to themselves without regarding the oath of allegiance to the King ; 5. They refuse justice by withholding appeals to the King in Council ; 6. They oppose the Acts of Navigation, and imprison the King's officers for doing their
duty ; 7. They have established a Naval Office, with a view to defraud the Customs ; 8. No verdicts are ever found for the King in relation to customs, and the Courts impose costs on the prosecutors in order to discourage trials ; 9. They levy customs on the importation of goods from England ; 10. They do not administer the oath of supremacy as required by charter ; II. They have erected a Court of Admiralty, though not empowered by charter ; 12. They discoun- tenance the Church of England ; 13. They per- sist in coining money, though they had asked forgiveness for that offence." These articles were exhibited in June, 1683. He arrived in England, May 28.
375
THE CHARTER OF KING CHARLES THE FIRST.
for the defence of its political existence and of the liberty and property of its people, at the bar of a court in London."1 The writ bore teste June 27, 1683, and was returnable in October following.
The agents, Messrs. Dudley and Richards, now petitioned the authorities, "setting forth that a quo warranto being issued against the Charter and Government " of Massachusetts, " they are not willing to undertake the de- fence and management thereof, and therefore praying they may be permitted to return home to take care of their private affairs," and leave was granted. They arrived at Boston Oct. 23, 1683, and the same week Randolph arrived with the quo warranto; the Privy Council having ordered, July 20, " that Mr. Edward Randolph be sent to New England with the notification of the said quo warranto, which he was to deliver to the said Governor and Company of the Massachusetts Bay, and thereupon to return to give his Majesty an ac- count of his proceedings therein." He was furnished with two hundred copies of all the proceedings at the Council Board concerning the Charter of London, to be dispersed in New England. A " Declaration " was received from the King, by the same conveyance, to be spread among the people, promising that if the Colony, before prosecution, would make full submission and entire resignation to his pleasure, he would regulate their charter for his service and their good, and with no further alterations than should be neces- sary for the support of the government there; declaring, at the same time, that all persons who are questioned in or by the said quo warranto, and shall maintain suit against the King, shall make their defence at their own partic- ular charge, and not at the expense of the Colony, and all persons who shall submit to the pleasure of the King shall be freed from all rates levied as contributions towards said suit.2
The Governor and a majority of the Assistants, despairing of any suc- cess from a defence, voted on the 15th November that a humble address be sent to his Majesty by this ship, saying that they would not contend with his Majesty in a course of law, as they relied on his gracious intimations that his purpose was only to regulate their charter, without any other alteration than what was necessary for the support of his government here. After a delay of fifteen days the deputies dissented, and the town of Boston, under the lead of Increase Mather, sustained them.
Hutchinson says that if this vote of the Assistants had " been made an act of the General Court, it is doubtful whether the consequent administra- tion of government would have been less arbitrary than it was upon the judgment against the charter; but, upon the Revolution, they might have reassumed their charter, as Rhode Island and Connecticut did their respec- tive charters, - there having been no judgment against them." 3
1 Palfrey, New England, iii. 375, 376.
" Mass. Colony Records, v. 423.
8 Mass. Bay, i. 339. In a note, he adds : " However agreeable to law this distinction might be, yet equity does not seem to favor it. The charter of London was adjudged forfeited upon a long argument of the greatest lawyers in
the nation. The Massachusetts was decreed forfeited upon default of appearance. Not only the charter of London, but all the charters in the King's dominions, I suppose (unless Ber- mudas is an exception), whether surrendered or whether there had been judgment against them, were reassumed, except the Massachusetts."
376
THE MEMORIAL HISTORY OF BOSTON.
The Court sent a letter of attorney to Robert Humphreys, Esq., of Lin- coln's Inn, bearing date December 5, to appear and make answer for the Colony ; and, in a supplementary letter to him, they say, -
" We take not this course in law of choice, but of mere necessity, to save a default and outlawry for the present, until, if it be possible, we can find means, by an humble application, to satisfy his Majesty. Be sure you entertain the best counsel possible, and gain what time may be had, cunetando restituere rem, and that a better day may shine upon us."
In an additional letter of advice to Humphreys, of the same date, the General Court, through its secretary, suggested that there should be a plea made to the jurisdiction of the Court before whom their case was to be tried; namely, -
" Whether a charter and privileges granted thereby, being exercised in America, can be tried in a court in England, or by what authority the sheriffs of London serve a writ on persons who never were inhabitants there, and particular persons are only men- tioned in the writ, whereas we are to sue and to be sued by the name of the Governor and Company ; also, the writ was not served on the persons concerned until the time of appearance was past, and not served on our agents in England, nor any copy left with them by the secondary." 1
Randolph sailed for England soon after the decision of the deputies just narrated, dissenting from their brethren of the upper branch who had voted to yield and not to contend with the King. He embarked Dec. 14, 1683, and arrived at Plymouth after a tedious and very dangerous passage of two months, and lost no time in laying before Sir Lionel Jenkins an account of his doings in Massachusetts. His more formal " Narrative of the Delivery of his Majesty's writ of quo warranto" was presented to the Privy Council; and by that body, five days afterwards, it was referred to the Lords of the Committee.
Randolph at the same time presented a petition, setting forth the hazards and dangers he had encountered, both by sea and land, in his Majesty's service in the affairs of New England, together with his losses, amounting to two hundred and sixty pounds; and he asked for money to indemnify him for the cost of having brought over two witnesses to make out the proof of what he had charged against the Colony,2
The intelligence that followed Randolph to England indicated no progress, on the part of the friends of the prerogative, in obtaining the submission of Massachusetts, Party spirit ran high in the colony. The Assistants could not prevail upon the deputies to surrender the charter. The General Court, May 10, 1684, sent another letter to their attorney, Mr. Humphreys, saying that they had not yet heard of his receipt of their former letters, and expressing the hope that he will use his endeavor "to spin out the case to the uttermost."
1 The writ, in Latin, is in the Mass. Col. Rec., V. 421.
2 Palfrey, New England, iii. 387.
377
THE CHARTER OF KING CHARLES THE FIRST.
"We question not," the letter proceeds, "but the counsel which you retain will consult my Lord Coke - his Fourth Part - about the Isle of Man and of Guernsey, Jersey, and Gascoine, while in the possession of the kings of England, where it is concluded by the Judges that these, being extra regnum, cannot be adjudged at the King's Bench, nor can appeal lie from them. Also, if there be such a thing as an appeal from a judgment in the King's Bench, by a writ of error to the Exchequer Chamber, we hope you will endeavor for us . . . whatsoever benefit the law affords." 1
They also sent another humble address to the King, in which they supplicate "that there may not be a farther prosecution had upon the quo warranto." This was enclosed in a letter to their agent, submitting it to his better judgment whether it were advisable to present it to his Majesty or to withhold it.2
Before these letters reached England, the fate of the charter had been substantially sealed. The proceedings by quo warranto had been dropped, and a new suit by scire facias begun in the Court of Chancery. This Court made a decree, June 18, 1684, vacating the charter, directing " that judg- ment be entered up for his Majesty as of this term; but, if defendants appear first day of next term, and plead to issue, so as to take notice of a trial to be had the same term, then the said judgment, by Mr. Attor- ney's consent, to be set aside; otherwise the same to stand recorded." Record was made that the Governor and Company did not appear, but made default. "The first day of next term" (Michaelmas) was the 23d of October of this year.3
The intelligence of this conditional judgment against the charter reached Massachusetts in a private letter to Joseph Dudley in September, and by him it was communicated to the Governor. A special meeting of the Court was called for the tenth of the month; but nothing was done regarding this business except hearing the letter read and addressing a brief note to their attorney, expressing amazement at the information just received. An adjourned meeting was held five weeks later, - Octo- ber 15, - at which a humble address was ordered to the King, praying for his "clemency and justice," acknowledging "some unwilling errors or mistakes, for which we prostrate ourselves at your Majesty's feet, humbly begging and imploring your Majesty's pardon and forgiveness, with the continuance of our charter and privileges therein contained." A letter was also addressed to their attorney, Mr. Humphreys, expressing indignation at the proceedings against them, hoping they had not forfeited the privileges of Englishmen, and saying they are yet unwilling to despair of a further and a more favorable consideration of their case by those from whose jus- tice they implore relief. "We know not what could be done more, nor cannot direct for the future." Before these papers had been despatched from the Colony, the final step was taken in London. On the first day of Michaelmas Term (October 23), the counsel for the Colony moved in the Court in Chancery for a stay in the proceedings, as sufficient time had not
1 Mass. Colony Records, v. 439 2 Ibid. pp. 440, 441. 3 Ilutchinson, Mass. Bay, 1 340.
VOL. I .- 48.
378
THE MEMORIAL IHISTORY OF BOSTON.
been given for procuring a letter of attorney from New England between the issuing of the writ and the day appointed for its return. But the Lord Keeper replied that no time ought to have been given, as all corporations ought at all times to have an attorney in court; and the order for time to appear and plead was set aside, and final judgment entered for vacating the charter.1
1 Hutchinson, Mass. Bay, i. 339, 340 ; Mass. Col. Rec., v. 449, 451, 456-459 ; Palfrey, Nie England, iii. 393, 394. "Down to the time of Randolph's report to the Privy Coun- cil (Feb. 29, 1683-84), the proceedings against Massachusetts were under a writ of quo war- ranto, returnable into the Court of King's Bench. After that time we hear no more of that writ, or of proceedings in that court." What vacated the charter was a decree in Chancery in June of this year, confirmed in October. See Palfrey, iii. 390, 391, who has called attention to the perplexity in which this action of the au- thorities has been involved, and to the fact that Chalmers, Hutchinson, and Grahame, two of whom were bred lawyers, and one of whom was a Chief Justice, " all slur the matter over." Other writers have done the same, some of whom appear to have been unaware that the proceedings under the quo warranto were not consummated by that process. Contemporary writers in New England understood the matter in a general way, if they did not comprehend all its legal aspects. The author of a " Brief Relation of the State of New England," prob- ably Increase Mather, says: "The Governor and Company appointed an attorney to appear and answer to the quo warranto in the King's Bench. The prosecutors not being able to make anything of it there, a new suit was commenced by a scire facias in the lligh Court of Chancery. But, though they had not sufficient time given them to make their defence, yet judgment was entered against them for default in not appear- ing, when it was impossible, considering the remote distance of New England from West- minster Hall, that they should appear in the time allowed." Andros Tracts, ii. 154, 155.
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