To add to the bad odor of New England affairs, the Atherton Land Company chose this particular juncture to reassert its claim to the Narragansett country, and that question rose to the surface again, Holden and Greene, of Rhode Island, making serious complaints before the Crown of the encroachments of Massachusetts. Although, so far as Connecticut and the Bay Colony were concerned, the whole question of the King's Province had been settled a dozen years previously, they had both continued to plague their smaller neighbor with their claims, and Rhode Island now asked that the King appoint a “Supreme Court of Judicature” over all the New England colonies, to settle boundary disputes.[[960]] Although this was not done, Massachusetts was told to let the province alone,[[961]] and the whole episode could not fail to impress the English government more forcibly than ever with the necessity of establishing a greater degree of local royal control. Soon after, the same suggestion of a Supreme Court was made in the curious case of a Connecticut Indian, who had made his way to England to complain both of fraud against himself and of the general treatment of his race by the colonists, against whom, he claimed, it was impossible to secure justice in the colonial courts.[[962]]
In the fall of 1678, the Massachusetts Court finally agreed to administer the oath of allegiance, and to pass a law against treason; but beyond that they refused to go.[[963]] In fact, in their answer to the Attorney-General regarding their laws, they announced that the laws of England did “not reach Amerrica[Amerrica],” and that, as the colonies were not represented in Parliament, they were not subject to the Navigation Acts. These, however, the Court reënacted, in order, according to their theory, to give them validity within Massachusetts.[[964]]
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.
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]]
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]]
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.
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.
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]]
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.
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]]