Chapter XV: Loss of the Massachusetts Charter (2)

The doctrine of no taxation without representation is a natural deduction from the contract theory, and has as little historical or philosophical justification as has that of the theoretical contract itself. It is mere commonplace to dwell on the philosophical weakness of the doctrine, the brief expression of which was to become the rallying cry of a continent a century later. From a practical standpoint, however, it may be pointed out, that what may be called the historical basis of representation in England in the seventeenth century was quite different from the numerical basis in the United States to-day, and that, in the former sense, the inhabitants of Massachusetts were as fully represented for purposes of taxation as were the vast majority of the citizens then resident in England, except for the unavoidable effects of distance alluded to in an earlier chapter.[965] If, on the other hand, it be claimed that the colony's government had in mind representation in the modern American sense, then they were acting even more tyrannically than was England, for they were themselves, without any legal right to do so under the charter, taxing the four fifths of the residents of Massachusetts who had no voice in the local government, save in exactly the same vicarious way in which all the colonists were represented in Parliament. It may also be noted that we, to-day, deny such representation, as Massachusetts was now claiming, to our own citizens resident in our territories and colonies. The theory of direct representation in Parliament of England's overseas possessions was not a new one, however, nor was it evolved in America. In the sixteenth century, Calais had been represented for a short time,[966] while Barbadoes had declared how “impracticable” it was that they should be taxed when unrepresented in Parliament, five years before the cry was raised in New England.[967] Nor was that cry raised solely in the cause of freedom. The demand, in reality, was, not that there should be no taxation without representation, but that the members of the Congregational church should be confirmed in their claim to tax the entire community without interference from England.

Footnote 965:

The difference in the two methods was then beginning to be understood
and was clearly brought out in a discussion in Carolina in 1685. _Cal.
State Pap., Col., 1685-88_, pp. 12 _f._

Footnote 966:

Maitland, _Constitutional History_, p. 239.

Footnote 967:

_Cal. State Pap., Col., 1669-74_, p. 475. _Cf._, also, _The Groans of
the Plantations_ (London, 1689), p. 23. “Our Masters the Projectors
think they have a great advantage over us, in regard we have none to
represent _us_ in Parliament. 'Tis true, we have not: but we hope we
may have them. It is no disparagement to the Kingdom of Portugall,
rather it is the only thing that looks great; that in that assembly of
their Estates the Deputies of the City of Goa have their place among
their other cities.”

In the letter which the King sent to the colony by its agents, who, on account of the attention of the government being entirely absorbed with the Popish Plot, were at last permitted to leave in June, 1679, he again returned to the question of religion and the suffrage. He insisted upon toleration for all except Papists, and a property qualification as the only one necessary for the franchise.[968] He also expressed his displeasure at the colony's secret purchase of Maine, and directed the surrender of the title-deeds upon repayment of the price paid. The colony was also instructed to withdraw all commissions granted for governing New Hampshire, as the legal right of administration was vested in the Crown, which was then considering a new establishment there. Other agents, in place of those now returning, were ordered to be sent within six months, duly instructed to act in the necessary regulating of the colony's affairs.[969]

Footnote 968:

_Randolph Papers_, vol. III, pp. 50, 68.

Footnote 969:

_Ibid._, pp. 48 _ff._

Massachusetts persisted in her old tactics, and it was over three years before she sent the required agents to England. Meanwhile, Randolph, during his first year as customs officer, had met with no assistance, and every possible obstruction, in the performance of his duties, so that not a single ship had been seized for irregular trading.[970] In the court of February, 1680, the royal instructions were considered, and during the early part of the year a committee was appointed to revise the laws, while the New Hampshire commissions were canceled. The colony, however, proceeded to establish its own government in Maine, under the presidency of Danforth, despite the King's commands and a local disturbance at Casco.[971] In two letters to the English Secretary of State, Bradstreet, who had succeeded Leverett as governor, defended the purchase of the province, and virtually refused to alter the colony's practice in the matter of the franchise, except by nominally conceding that members of the Church of England would not be considered heterodox. He held out no prospect of agents being sent, alleging the poverty of the colony and the danger of the “Turkish” pirates, who had captured several vessels.[972] In reply, the King wrote, in September, insisting that agents be sent within three months, with sufficient powers to settle all outstanding questions, and with such evidences of title as the colony might claim, to the strip of land in dispute with Mason.[973]

Footnote 970:

_Ibid._, vols. III, pp. 60, 70 _ff._, 86, and VI, pp. 99 _ff._; _Cal.
State Pap., Col., 1677-80_, pp. 372 _f._; _Records of the Court of
Assistants of Massachusetts Bay_ (Boston, 1901), vol. I, pp. 149 _f._,
160, 168, 171, 176 _f._, _et passim_.

Footnote 971:

_Massachusetts Records_, vol. V, pp. 268, 263.

In January, 1681, this letter was read at a special meeting of the General Court, and Stoughton and Samuel Nowell were appointed agents. Stoughton evidently had no desire to repeat his former experiences, and, two months later, John Richards, a wealthy Boston merchant, was appointed in his place.[974] The months went by, however, and the end of the year found the agents still in America.

Footnote 972:

_Massachusetts Records_, vol. V, pp. 268, 286, 278, 287 _ff._

Footnote 973:

_Randolph Papers_, vol. III, pp. 81 _ff._

Footnote 974:

_Massachusetts Records_, vol. V, pp. 304, 307.

The patience of the English government had now become exhausted. For twenty years, since the Restoration, that government had been endeavoring, by every means in its power, to settle the New England question in a way that would be satisfactory to all the colonists, regardless of creed, and would, at the same time, permit the maintenance of the trade-system upon which the Empire was based. Had Massachusetts at any time been willing to give up her illicit profits, she could very possibly have saved her charter. The violations of that instrument upon which final action was taken were as palpable and actual in 1660 as in 1684. Had the English government merely wished to overthrow that of Massachusetts, it could legally have done so at any time it desired; and the prompt dispatch of a thousand English troops, at the time of Bacon's rebellion in Virginia, showed that it was capable of vigorous and effective action, when it was felt to be necessary. But every evidence points to the fact that it did not wish to be bothered with the problem in Massachusetts, or to proceed to strong measures until absolutely forced to do so by the persistent attitude of the colony, which was virtually seceding from the Empire.[975] The “New England disease” of avowed independence and nullification was infecting the rest of the Empire, and undermining England's prestige both within and without. The colony's increasing illegal trade was threatening the destruction of the legitimate business of colonial and home merchants alike, as well as the Empire's international relations. Although New England's domestic trade was of slight value to the mother-country, she occupied a strategic position of first importance in relation to the valuable staple colonies of the south and the West Indies, and, in case of war with France, it was essential that England should have some means of official communication with, and control over, her strongest colony on the enemy's frontier in America.

Footnote 975:

_Cf._ Beer, _Old Colonial System_, vol. II, pp. 305 _f._

Over two years had now elapsed since Massachusetts had received orders to send agents, but she had sent none. She was, nevertheless, given one last chance. At the end of 1681, Randolph, who had been in England strongly urging _Quo Warranto_ proceedings against the charter, arrived in Boston bearing a letter from the King. It required that more assistance be given to Randolph as collector, that the Navigation Acts be enforced, and that agents be sent within three months, or “wee shall take such further resolutions as are necessary to preserve our authority from being neglected.”[976] The letter was much milder than the situation really warranted, and than the wording of a suggested draft by the Lords of Trade.[977]

Footnote 976:

_Randolph Papers_, vol. III, pp. 110 _ff._

Footnote 977:

_Cal. State Pap., Col., 1681-85_, pp. 129 _f._ Osgood (_American
Colonies_, vol. III, p. 328) states that this draft accompanied the
King's letter, as does Doyle (_Puritan Colonies_, vol. II, p. 216).
Hutchinson does not mention it in his account, however (_History_,
vol. I, pp. 300 _f._), and it seems to me that this document, which is
undated, is merely the preliminary draft, as its heading indicates, of
the final letter, which is in _Cal. State Pap., Col., 1681-85_, pp.
128 _ff._ The final drafts were often milder in expression than the
preliminary ones.

In February, 1682, the letter was read at a General Court, and, a month later, Stoughton and Joseph Dudley were elected agents against considerable opposition. Stoughton again refused to serve, and Richards was chosen in his place.[978] Although comparatively little is known of him, it appears that he was strongly opposed to any concessions, whereas Dudley's more pliant nature and moderate views, influenced perhaps by ambition to take a leading place under the altered conditions which he evidently considered inevitable, led him to an early and willing coöperation with the English government after the blow had fallen.[979] Over three months more elapsed before the agents sailed, and it was midsummer when they reached England.[980] Although they carried with them confidential instructions, and a public defense of the colony, they were given no powers to treat of anything that might tend to infringe “the liberties and priviledges” granted by the charter as interpreted by Massachusetts.[981] It was obvious, therefore, that nothing could come of the negotiations, and that there was no recourse left to the English government except to acknowledge the virtual independence of the colony, or to void its charter.

Footnote 978:

_Massachusetts Records_, vol. V, pp. 333, 346; Hutchinson, _History_,
vol. I, p. 301; _Mass. Hist. Soc. Coll._, Series IV, vol. VIII, p.
494.

Footnote 979:

Randolph's description of Dudley as an opposer of the “faction,” and a
man who “hath his fortune to make,” is well known. _Randolph Papers_,
vol. III, pp. 145, 171, 172. _Cf._ E. Kimball, _Public Life of Joseph
Dudley_ (Harvard Historical Studies, 1911), pp. 1-21.

Footnote 980:

Hutchinson gives the date of sailing as May 31, N. S.; _History_, vol.
I, p. 301.

Footnote 981:

_Massachusetts Records_, vol. V, pp. 346 _ff._

In the answer that the agents made on their arrival, there was little that was new.[982] When it was pointed out to them that the requirement for the franchise had been that no religious distinction should be made, and no qualification be necessary, except that the applicant be a freeholder, of the Protestant religion, taxable at ten shillings, they stated that there was no other distinction, and that all contrary laws had been repealed. As was shown by both the law and the practice of the colony, this statement was false both in fact and in implication. In reference to the three-years' delay in complying with the request for agents, they alleged the danger of the seas, and lack of money, which latter was soon disproved by their clumsy and unsuccessful attempt to bribe the Lord Treasurer with £2000, which made them the laughing-stock of the Court.[983] Their answers in other respects were almost equally unsatisfactory, and their lack of power having been acknowledged, they were told that they must secure sufficient authority from the colony or that the _Quo Warranto_ proceedings would begin.[984]

Footnote 982:

_Cal. State Pap., Col., 1681-85_, pp. 288 _ff._

Footnote 983:

Hutchinson, _History_, vol. I, p. 303; _Cal. State Pap., Col.,
1681-85_, p. 373.

Footnote 984:

_Ibid._, p. 296.

At the end of March, 1683, the General Court sent them additional instructions, but did not enlarge their powers, except that they were authorized to “tender” Maine or anything else which “our charter will not warrant our keeping.” They were to reiterate their statements as to the franchise, and to consent to nothing which would alter their “liberties and privileges in matters of religion.”[985] In the last analysis, it became evident that the one thing the controlling element in Massachusetts would not yield was its ecclesiastical power.

Footnote 985:

_Massachusetts Records_, vol. V, pp. 390 _f._

The King hesitated no longer. Randolph, however, who carried the notice of the beginning of _Quo Warranto_ proceedings to Boston, was authorized, at his own suggestion, to offer to Massachusetts the promise of a full protection of private interests and property rights, and a liberal regulation of the charter, if she would voluntarily submit, in which case the proceedings would be abandoned.[986] The wholesale “regulation” of charters, as then being conducted by the Stuarts in England, held out little hope of the colony's securing any such liberties in a new charter as she possessed in the old; but, on the other hand, not to yield was to lose all, and, in view of her past record, she could expect little sympathy from any quarter.

Footnote 986:

_Randolph Papers_, vol. III, pp. 242, 246 _f._

The magistrates were in favor of accepting the offer, but the deputies refused, and the Court continued deadlocked.[987] It is impossible to determine what the public opinion was as to the situation. In the annual election, in spite of a determined effort to defeat him, Bradstreet, who was a moderate, secured 690 votes, against 631 for Danforth, who belonged to the radicals.[988] Dudley, indeed, failed of reëlection, but so, also, did Richards; and the general result seems to represent only a slight preponderance for the party of no compromise. It must be remembered also that, owing to the fact that only one fifth of the men of the colony possessed the franchise, and that they were all church members, the vote cannot be taken to represent the sentiment of the colony as a whole, much of the discontented element necessarily not showing in the returns. Under the circumstances, it is significant that over one half of the church members seem to have voted for Bradstreet and compromise, for it is fair to presume that they would include a much larger proportion of irreconcilables than the unenfranchised body of non-church members, who would have nothing to gain by fighting England to a finish, in order to preserve a church of which they were not members, and a theocratical government which excluded them from power. Their very legitimate grievance may well have been, indeed, that that same government, in its effort to preserve privileges for itself which meant nothing, or worse than nothing, to four fifths of the inhabitants of the colony, had sacrificed those other privileges which did mean something to them.

Footnote 987:

_Ibid._, pp. 271 _ff._

Footnote 988:

Hutchinson, _History_, vol. I, p. 306. Doyle (_Puritan Colonies_, vol.
II, p. 222) makes a slip in this connection. He states that only one
freeman in ten cast his vote. As a matter of fact there were not over
1500 freemen (McKinley, _Suffrage_, pp. 334 _f._), so that the 1321
votes cast would seem to indicate great interest in the election,
instead of the lack of it which Doyle suggests.

We need not enter into the legal details of the course by which the charter was canceled. The _Quo Warranto_ proceedings having proved abortive, a writ of _Scire Facias_ was entered, and, on October 13, 1684, Massachusetts ceased to be a chartered colony, and found herself without a single one of the rights to which she had clung so tenaciously.[989]

Footnote 989:

For the legal proceedings, _vide_ Winsor, _Memorial History_, vol. I,
pp. 378 _f._

There seems to be no question of the technical legality of the proceedings; but, passing beyond those, there is nothing to regret in the course pursued by the Crown. The interpretation of the charter by the church party not only was inconsistent with the terms of that instrument itself, so that any government built upon it was illegal and constantly open to attack, but was inconsistent, also, with the development of liberty itself in its widest sense. If it were, indeed, true that the charter formed an unalterable constitution, under which company members alone were able to become enfranchised citizens, then the power to govern the state could legally have been confined forever to the two or three dozen “freemen” who alone were called for by the charter. The pressure had been so great that the number of freemen had been greatly enlarged, it is true; but, according to the leaders' interpretation, this had been merely a boon granted out of good-will, and no additional freemen need ever be admitted. Their number might again be allowed to shrink, by death or disfranchisement, to the few required to fill the offices, who would, according to this theory, have the sole power of all government, including life and death, over the rest of the thirty-five thousand inhabitants. Although this, of course, was unlikely, nevertheless, those in control had shown definitely, when in order to maintain the theocracy they had sacrificed the whole political structure, rather than abandon their position with reference to extending the franchise, that nothing but a power so overwhelming as to be unopposable would have forced them peaceably to do so.

When we speak of liberty in connection with this early struggle with the home country, we should realize clearly that the party opposed to England fought to the end to perpetuate religious intolerance, and the intrenched privilege of a minority to tax an unenfranchised majority four times as numerous, and for the right to concentrate all political power in the hands of one religious sect. The clergy, who had wielded an extraordinary influence in the counsels of this governing minority, had, in many instances, been men of marked ability and fanatically devoted to the truth as they saw it. But as leaders, in the highest sense, they had very largely failed. From the beginning, they had striven to banish from the colony all ideas not in harmony with their own, and had thus lowered and impoverished the intellectual life of the community. On nearly every occasion, they had led in fanning the flames of intolerance and persecution. Over and over, they had helped to brutalize the natures of the citizens by calling for the blood of victims to whom the community would otherwise have shown mercy. One such example was yet to come, before the colony, disillusioned, was to reject their leadership finally in civil affairs.

But the present situation must have been of marked effect, when the people as a whole, non-church members as well as church members, found that, in the effort to perpetuate the theocracy, every civil right and safeguard, which they had considered they possessed under the charter, had been allowed to be taken from them. It is impossible, as we have said, accurately to gauge the public sentiment of the time from any data now available.[990] The people, unquestionably, could be trusted to resist any real efforts from across the water to restrict such liberties as they were prepared to enjoy. We seem too often to take it for granted, not only that liberty is something which all men are entitled to, but that they are at all times ready for it. The story of their gradually being moulded, so that they are, in an ever-increasing degree, fit for it, would seem quite as important as that of their struggle to obtain it.

Footnote 990:

The report of a meeting in Boston, from which non-freemen were
excluded, a vote being then taken after an exhortation from Mather,
cannot be considered as evidence of the sentiment of the community at
large. The very fact that the non-freemen were not allowed to be
present is in itself significant.

It would have been a great misfortune had the Massachusetts of 1684 been allowed to go her own way, and to strengthen and perpetuate the combined ecclesiastical and political system for which her leaders had fought. As it is, the influence remains too strong of her fundamental doctrine that, in matters in any degree tinged with an ethical value, a minority has the “divine right” to force its will upon the majority, and to use the arm of the civil power to enforce its moral views upon the nation. In the town-meeting and the public school, the founders of Massachusetts, lay and clerical, had made two contributions of untold influence to American political life; but it was well for personal liberty and intellectual freedom, when the real struggle came and independence was achieved, that it was for a people who had had some training in religious toleration and political equality, regardless of class or creed. And, curiously enough, so tangled is the skein of history, the laws which voiced and fostered those beliefs were due to one of the most shameless of English kings, and not to the fathers of the New England commonwealth.