Massachusetts -- Church history; Massachusetts -- History -- Colonial period, ca. 1600-1775; Puritans -- Massachusetts
Yet, though the ecclesiastical party in Massachusetts obstinately
refused to admit appeals to the British judiciary up to the last
moment of their power, for the obvious reason that the existence of
the theocracy depended upon the enforcement of such legislation as that
under which the Quakers suffered, there was no principle in the whole
range of English jurisprudence more firmly established. By a statute of
Henry VI. passed in 1436, corporate enactments were to be submitted to
the judges for approval; and the Court of King’s Bench always set aside
such as were bad, whenever the question of their validity was presented
for adjudication. [Footnote: Stat. 15 H. VI. ch. 6. Stat 19 H. VII.
ch. 7. Clark’s Case, 5 Coke, 633, decided A. D. 1596. See Kyd on
Corporations, ii. 107-110, where authorities are collected. Child v.
Hudson Bay Co., 2 P. W. 207.]
But discussion is futile; the proposition is self-evident, that an
association endowed with the capacity of acting like a single man, for
certain defined objects, which shall attempt other objects, or shall
seek to compass its ends by unlawful means, violates the condition upon
which its life has been granted, transcends the limits of its existence,
and forfeits its privileges; and that under such circumstances its
ordinances are void, and none are bound to yield them their obedience.
Approached thus from the standpoint of legal history, no doubt can exist
concerning the scope of the franchise secured by the Puritans for the
Massachusetts colony. The instrument obtained from Charles I. embodied
certain of their number in an English corporation, whose only lawful
business was the American trade, as the business of the East India
Company was trade in Hindostan. To enable them to act effectively, a
tract of land in New England, between the Merrimack and the Charles, was
conveyed to them, as the soil upon which a town stood was conveyed to
the mayor and commonalty. Within this territory they were authorized to
established their plantations and forts, which they were empowered to
defend against attack, as the Hanse merchants defended the Steel Yard
in London. They were also permitted to govern the country within their
grant by reasonable regulations calculated to preserve the peace, and of
much the same character as the municipal ordinances of towns, subject,
of course, to judicial supervision. The corporation itself was created
subject to the municipal laws of England, and could have no existence
without the realm; and though perhaps even then the American wilderness
might have been held to belong to the British empire, it formed no part
of the kingdom, [Footnote: Blackstone’s _Commentaries_, i. 109.] and was
altogether beyond the limits of that jurisdiction from whose customs
and statutes the life of this imaginary being sprang. Therefore, the
governing body could legally exercise its functions only when domiciled
in some English town. [Footnote: On this subject see the able paper of
Mr.
Public-domain text, read in full here on John Shaqi.
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