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ceed by a writ of quo warranto.1 "The truth is," wrote Richards, September 25, 1682, "our case is come to a Crisis. They are resolved here of their way, and put us to a hard choice; either to empower )>sons here fully instructed & commissionated, to accept of such Regulations of our Government as shall be propounded, &c, or else a Quo Warranto will within 4 monethes proceed against our Charter."2 Both Dudley and Richards saw that their mission was doomed to failure, and were using all their efforts to bring about their recall. To cap the climax, however, Randolph was ordered to return to England "to attend upon the further progress of the business of New England."3
The feeling in the colony was now one of despondency. Even the "faction" expected that very little could be done, for Nowell, one of its leaders, wrote to Richards, "I am heartily sorry for both of you that your part is like to be so hard: it will be hard to do that w0*1 shall be pleasing either in Old Engld or in New";4 and again, "I have little expectation that all we can or shall do will put a stop to the Quo Warranto; for if we doe not give you power, it will go on, if we do give you the power required, & you do not make use of it to our p'judice, the Quo Warranto will still go on; but if you do make use of the power to answer demands, we do then pull downe the house ourselues, which is worse than to be passive only." 6 Nevertheless, new instructions were sent which allowed the agents to consent to such alterations "as may consist wth the majne ends of our predecesso's in their removall hither our charter, and his maj'yjes government here setled accord1 Board of Trade, Colonial Entry Book (Ms.), 107, p. 56.
* Massachusetts Historical Society, Collections, 4th Series, viii. 496.
* Toppan, Edward Randolph, iii, 207.
4 November 9,1682, Massachusetts Historical Society, Collections, 5th Series, i. 431. 1 March 28, 1683, ibid. 434.
ing therevnto," but not to consent to any infringement of the religious liberties or present constitution of the General Court. As a last resort they were allowed to surrender Maine, but were cautioned to "be slow in tendring the Prouince of Majne."1 As might have been expected, these instructions were inadequate, and the Committee, "finding the Agents not duly impowred by their Commission to consent to such regulation of their Government as shall bee thought fit according to His Maty'" directions, Doe agree to Report that Mr Attorney bee Ordered to bring a Quo Warranto against the Privileges of their Charter."2 This marked the end of the agents' usefulness in England, and when they petitioned to be allowed to return, their request was granted.
This agency was, indeed, the crucial point of Dudley's career. When he got home he found himself an object of suspicion and hatred. In a Boston town-meeting, the people, under the lead of Mather and Nowell, declared that he and his friends Bradstreet, Stoughton, and Bulkley were enemies to the country, and resolved to change the magistrates at the next election.3 The truth is, however, that no action of the agents could have prevented the issuance of the quo warranto. Delay, evasion, and defiance had exhausted the colony's means of defence and the Committee's patience. The futility of the
1 Massachusetts Colony Records, v. 386-392.
* Toppan, Edward Randolph, iii. 234.
* In January a town meeting was held to choose jurymen, and the king's declaration was there published. Then "Nowell stood up and declared that those which were free to deliver up their charter and Right to the Country should hold up their hands. . . . And when the freemen were to vote by holding up their hands not one man held up his hand, w°h caused one of the Freemen to hold up both hands and with Long acclamations cryed out, the Lord be praysed. . . . Mather stands up and exhorts the people telling them how the forefathers did purchase it, and would they deliver it up even as Ahab required Naboth's vinyard. . . . They might see Examples enough before their Eyes meaning the City of London and their Neighbouring Country of Pascatamission was clear to Dudley and his colleague, and was recognized by many of the leaders at home; but on their return Richards, forgetting his experience in England and his own discouraging reports, sided with the faction in the House of Representatives and urged further resistance to the commands of the king. Dudley was more consistent; he better understood the temper of the Committee, and boldly advised the colony by speedy submission, to make the best terms possible.1 As a result, Richards was regarded as a patriotic man, while the hatred of the people was concentrated on Dudley and he was dropped from the Court of Assistants.
Dudley's hands, however, were not absolutely clean. Although there is not evidence enough to convict him of the avowed intention to betray the charter, yet it is known that he and Randolph discussed the probable form of government after the charter should be overthrown.2 This conversation, to be sure, took place after the issuance of the quo warranto; yet it showed a readiness on Dudley's part to accept a result
qua. ... It is resolved that upon the 7 day of May next being the day of election, there bee a New GoT and new Magistrates declaring Gov1 Bradstreet, Mr Stoughton, M' Dudley, Mr Bulkley and one more w1* are Enemies to the Countrey. It is resolved their Ellections to be such as to haue Govnr and Magistrates to be Unanimously and its thought they designe to opose any power from the King." — Abstract of a letter from Boston, March 14, 1684, given by Randolph to the Lords of Trade: Board of Trade, Papers, New England (Ms.), 53, No. 51.
•Toppan, Edward Randolph, iii. 273. See also a letter (signed by Bradstreet, Bulkley, Saltonstall, Russell, Stoughton, Dudley, Browne, and Gidney, March 23, 1684) to Sir Leoline Jenkins, stating that the majority of the magistrates "declared for submission, and would have despatched our agents empowered to make that submission. But we cannot obtain the assent of the deputies." — Calendar of State Papers, America and West Indies, 1681-1685, No. 1603.
* Randolph to Southwell, August 19,1683: "I have spent some tyme with Mr. Dudley one of their present Agents Endeavouring to accomodate things for their future settlment. . . ."—Toppan, Edward Randolph, iii. 262.
hateful to those who had intrusted him with their interests. From this time on, at any rate, Dudley and Randolph worked in harmony, Randolph pushing on the suit in England, Dudley advising submission at home, and at the same time seeking to mitigate the severity of the punishment which he felt sure would be inflicted upon the colony. In a long letter to Sir Leoline Jenkins, he says that he has endeavored "to assure this people that his Majestyes Just satisfaction & this peoples good were the same & not a different interest," and that as a result he has lost his office and is regarded as an enemy to the country. This attitude he attributes not to the body of the people, but to certain persons who have influenced them, and begs that "no severities may be used towards them as will spoyle the growth of these plantations & thereby greatly disadvantage his Majestyes revenues & his Majestyes other plantations in the West Indies that have great dependence upon this place, & his Majestyes commands for their future settlement may be accompanied & Introduced with his Gratious pardon, assurance of his peoples propertyes & Indulgence in Matters of religion, which will greatly oblidge this people in their obedience & advance the good opinion & confidence of his Majestyes undeserved Grace & favor for them."1 Whether this letter expressed Dudley's sincere desire, or was only a shrewd bid for future favors from England, it is hard to determine; yet it is typical of his later policy, which was obedience and close dependence upon England, coupled with a genuine desire to protect and improve the condition of the colony. Probably at this date, as in his later career, Dudley felt himself to be the man to bring about this harmony and
1 Calendar of State Papers, America and West Indies, 1681-1685, No. 1670. The original from which this quotation is made is in the Board of Trade's Papers, New England (Ms.), 53, No. 92.
prosperity, and in order to gain his ends he did not hesitate to use the influence of a man so hated as Randolph. In this aim, he was successful; for Randolph wrote," I am extreamely solicitous that Mr. Dudley might have the sole Gou* of N. Engd."1 The proceedings against the colony in the court of King's Bench were, by advice of Attorney-General Sawyer, transferred to Chancery, where upon a writ of scire facias, to which the colonists did not plead, the charter was declared vacated, October 23, 1684.2 To the disappointment of Randolph,
1 Randolph to Samuel Shrimpton, July 26, 1684, Massachusetts Historical Society, Collections, 4th Series, viii. 526.
'The "Exemplification of the Judgment vacating the Charter" is printed in the Massachusetts Historical Society's Collections, 4th Series, ii. 246. At a later date Randolph wrote, "By the assistance of Mr Brent of the Temple, their solicitor, they obtained a report from Sir Thomas Powys ... in their favour, that their former charter was illegally vacated" (Randolph to the Lords Committee, May 29, 1689, New York Colonial Documents, iii. 578). Professor Joel Parker, in his lecture on "The Charter and Religious Legislation in Massachusetts" (Lowell Institute Lectures on the Early History oj Massachusetts, 400), says, "The assumption to enter a decree, that a charter . . . which had existed more than half a century, should 'be vacated, cancelled, and annihilated,' on account of usurpations, which, in case of ordinary corporations, may be a subject for proceedings by writ of quo warranto in the King's Bench, and especially to do this upon a writ issued to the sheriff of Middlesex, in England, under such circumstances that there could be neither service nor notice, — would be of itself a usurpation." Charles Deane, in Winsor's Memorial History of Boston, i. 378, quoting the above, comes to a like conclusion. On the other hand, Blackstone (Commentaries on the Laws of England, book iii. 260) says, "Where the patentee hath done an act that amounts to a forfeiture of the grant the remedy to repeal the patent is by a writ of scire facias in Chancery"; and Bouvier (Law Dictionary, ii. 960), citing the same, declares that the crown may by its own prerogative repeal by scire facias its own grant." Brooks Adams (Emancipation of Massachusetts, 213-215), citing a letter from Robert Humphreys, counsel for the colonists, does not question the legality of the proceedings; and Humphreys himself apparently acquiesced when his plea "of the impossibility of hauing a return from you in the time alloted" was overruled by the lord keeper. Whether the charter was justly vacated or not is not the question; the method taken was a proper one to use in vacating a charter, and the decree in Chancery stood and was legally binding until reversed by some higher authority.