The Charter Falls

Exit the Charter, Followed by the King

The colony's desperate tactics failed, as they were bound to, and the Privy Council ran out of patience. Abandoning the quo warranto process that was proceeding before the King’s Bench, a slow-moving court of common law, they began a new suit in the more powerful Chancery Court, which quickly issued a writ of scire facias (literally ‘you shall make known’). This type of writ refers to a case that has already been before a court, and it requires the person on whom it’s served to appear and show cause why a judgment against him should not be enforced. The writ served on Massachusetts was dated to become final on October 23, 1684—in other words, that was the deadline for the colony’s agents to appear and make their case before the Court of Chancery—but when that date came, the colony hadn’t yet received the official summons, which had been sent far too late to allow any time to comply. This delay could not have been an honest mistake, and it is, as one historian pointed out, exactly the kind of action the Privy Council would have denounced if the colony had been guilty of it. (Massachusetts was of course in no position to do such a thing, but if it had been, the history of the charter suggests that the General Court wouldn’t have hesitated to use this or any other means to defend the status quo.)

Although the writ wasn’t officially served before the deadline, its arrival didn’t take Massachusetts Bay by surprise. Their agent Joseph Dudley forwarded the news from London: the writ was issued on April 16, and a conditional judgment against the colony (which would be valid unless its agents appeared in court before October 23 and managed to persuade the judges otherwise) was handed down on June 18. Governor Bradstreet, who apparently learned about this in September, called a special session of the General Court to consider it, but—according to a 19th-century historian, John Stetson Barry, whose account I’m following (The History of Massachusetts: The Colonial Period, 1855)—“before the Court assembled, the day of grace had passed.” This passive response is puzzling, but it’s likely that everyone knew the game was lost, and there was nothing more the General Court could do. (“Thus tyranny triumphed, and the Charter fell,” says Mr. Barry.) In the words of the Chancery Court, speaking for the crown (and referring to the charter in darkest legalese), “the aforesaid Letters Patent … to them the said Governor and Company made and granted … [are] Vacated, Cancelled, and annihilated.”

With the Massachusetts Bay charter out of the way, the king and the Lords of Trade planned an administrative consolidation of Massachusetts with some of the other English colonies in New England, under a single royal governor. In this, its original form, the Dominion of New England was to include (besides Massachusetts Bay) the Plymouth and New Hampshire colonies, Maine, and the “Narragansett country” in the southern part of modern Rhode Island.
King James II
But early in 1685, only a few months after the charter’s revocation, Charles II died suddenly of an apoplectic fit. This took England by surprise, as the king was only 54 and had been expected to live much longer. Succession was a delicate matter, since Charles had sired no legitimate heir, and his brother James was openly Catholic, a circumstance that deeply disturbed much of the country. But there was no time to plan or plot now; the throne was vacant and England needed to fill it. James said all the right things, assuring his subjects that he would rule them so impartially that it would be impossible to tell from his actions whether he was Catholic or Anglican. He was crowned in an atmosphere of good will and relief.

The officials in all of England’s colonies received instructions to continue in office and conduct their business as usual until further notice. Massachusetts’ leaders dreaded what “further notice” would probably amount to, and the General Court’s business was conducted in an atmosphere of deep gloom. Some towns even declined to elect representatives to the house of deputies. As they waited to find out what the new king might have in store for them, the governor and General Court went through the motions of carrying on as always.

President Dudley

Joseph Dudley, 1647–1720
In May, 1686, a provisional charter arrived proclaiming the Dominion of New England and appointing Joseph Dudley, a prominent member of the moderate party—and until then the colony’s representative in London—President of the New England Council. It was Dudley, in fact, who brought the provisional charter back to Boston and presented it to the General Court, which happened to be in session. The meeting in which the charter was read had to be the Court’s last—it was now legally out of business. Perhaps significantly, however, the members voted to adjourn the Court rather than dissolve it.

The provisional charter also appointed the New England Council’s members, most of them local men from Dudley’s moderate party. Edward Randolph, Massachusetts’ English nemesis, who had arrived with Dudley, also held a seat, and was appointed council secretary, as well as postmaster and collector of customs—this last office an important part of the plan to bring the colony into compliance with the government’s maritime policy—and a potential source of wealth for Randolph. Dudley’s appointment as president had in fact been Randolph’s idea, based on the assumption that the colonists would yield more readily to one of their own—whose point of view happened to be consistent with the government’s. The charter gave the council full power to govern the colony without the participation of any elected representatives.

In spite of these setbacks, the colonists felt some relief. They knew that King Charles had been planning to appoint a hardnosed soldier, Colonel Percy Kirke, as governor. King James was going to move ahead with this appointment, but before he did, Col. Kirke, while helping put down a rising against James in the west of England, became notorious throughout the mother country for cruelty. Even James II, no political genius, could see that appointing the likes of Kirke to rule a stubborn and ill-disposed New England might be a bad idea, and the king changed his mind.

Joseph Dudley, his interim appointment, was the son of one of the colony’s eminent founders, Thomas Dudley—a man who had four times served as its governor. Like many second-generation members of the colony’s prosperous families, however, Joseph Dudley was more deeply concerned with prosperity than with religious purity, and couldn’t see how Massachusetts could succeed economically while defying the mother country. He also had a considerable appetite for power and position. Sent to London to represent Massachusetts Bay, he had come to accept the crown’s position on nearly every issue.

The historians Richard D. Brown and Jack Tager (Massachusetts: A Concise History, 2000) accuse Dudley of treacherously failing to argue Massachusetts’ case and instead encouraging the king to go right ahead and revoke the charter. Dudley certainly wanted to be among the commercial insiders who would benefit financially from a colonial government more interested in business than religion, and he passionately wanted to hold a high office in that government. But during his time in England he may in fact have undergone a genuine change of heart. Brown and Tager point out that Dudley abandoned his heritage so far as to join the Church of England—but he didn’t do that until 1693, when the original charter was history and he was living in England, where he served as a member of parliament and angled industriously to be appointed royal governor of Massachusetts.

Other accounts describe Dudley’s policy, during his brief presidency, as having a strong local bias. He and his Massachusetts colleagues on the council were all for trade, but only as long as it didn’t divert too much profit from colonial pockets into English ones. Such diversion was, of course, exactly what the Navigation Acts were designed to do, and Randolph had been appointed to see that they did it. He could expect to derive a good income from the business of his office only if the maritime laws were universally obeyed. But Dudley and his friends, it seemed, approved and supported the Navigation Acts only as long as they weren’t strictly enforced. Before long, the council president and the collector of customs ceased to be friends.