Unquestionably the chancellor was right in principle. The only way whereby
such powerful corporations as the trade-guilds or the East India Company
could be kept from acts of oppression was through the appellate
jurisdiction, by which means their enactments could be brought before the
courts, and those annulled which in the opinion of the judges transcended
the charters. The Company of Massachusetts Bay was a corporation having
jurisdiction over many thousand English subjects, only a minority of whom
were freemen and voters. So long, therefore, as she remained within the
empire, the crown was bound to see that the privileges of the English
Constitution were not denied within her territory. Yet, though this is
true, it is equally certain that the erection of a commission of appeal
without an act of Parliament was irregular. The stretch of prerogative,
nevertheless, cannot be considered oppressive when it is remembered that
Massachusetts was a corporation which had escaped from the realm to avoid
judicial process, and which refused to appear and plead; hence Lord
Clarendon had but this alternative: he could send judges to sit upon the
spot, or he could proceed against the charter in London. The course he
chose may have been illegal, but it was the milder of the two.
The commissioners landed on July 23, 1664, but they did not stay in
Boston.
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