98 Even for such towns can sue or be sued as the men of the king.9 an amorphous body like the "Knights of the bishopric of Durham" can lie in the royal mercy. 99 The mere enumeration of the towns vested in the king is evidence of his substantial power; 100 and when he grants out his powers for money as the venality of Richard I did with unceasing hand 101 he draws a firm distinction between possession and ownership.102 Corporateness we do not say the fact of incorporation — is clearly here preserved; and it is preserved because it is profitable to the crown. Where men act in group-unity you can fine them, if the single assumption be made of an action which derives from royal kindliness. The king concedes powers: he is real enough. And so long as the relation of a borough is for the most part with him, a speculation as to the nature of burghality is here as elsewhere unneeded. But with the borough a new day will presently dawn. The England of the fourteenth century will begin to untie the jealous knot of separatism. It will begin a hundred-years' struggle with France and find a sense of unity in that suffering, while the horrors of the Black Death will spell consolidation.103 There were new needs to satisfy; and new ideas are required for their satisfaction. IV Let us go back to our churches. Of ecclesiastical communities medieval England has in truth a plethora, for our ancestors were pious men, willing enough, as the charters bear witness, to buy their salvation at the expense of their property. And these communities are voluntary in character with a definite purpose behind them; it is not difficult to feel that their wills are to serve those purposes.' 104 Who owns their possessions? That is a more troublesome question. Lands from the earliest times are church lands; and the opening words of English law ascribe a special sanctity to the property of 98 MADOX, FIRMA BURGI, 65. 99 Ibid., 85. 100 See the striking statistics in MADOX, FIRMA BURGI, 4 ff. 101 STUBBS, SELECT CHARTERS (ed. Davis), 258. 102 Cf. Madox's phrase, “He had a compleat seisin of it [the town] with all its parts and adjuncts," loc. cit., 14. 103 Cf. I CUNNINGHAM, GROWTH of English INDUSTRY, 378 ff. 104 Cf. I P. & M., 2 ed., 510. God and of the church. 105 But what is the church that owns them and what is the nature of their possession? The early rules of law are rather fitted to deal with the problems of natural or of immortal men than of a group which raises a metaphysical inquiry.106 It is simple enough when the property of the diocese is at the disposal of the bishop; 107 but for a cellular and separatist England it is too simple by far. If the church is owned, it will also own; and Bracton has noted the difference between the ownership and the right of presentation to its control.108 If the church owns land, some speculation there must be about the nature of that church; and there are lawyers enough (canonist at that) anxious to weave theories that will give the ecclesiastical community the full benefit of its powers. Mysticism, of course, we shall have early, for St. Paul had given to Christians the picture of an ecclesiastical organism,109 and men like John of Salisbury and the great Cardinal of Cusa will push the comparison to the point of nauseation.110 Crude as is this anthropomorphic conception, it is not without its influence on law. If the body ecclesiastic is to be given substantiality, a head must control its action; and the abbatial church will be so much the possession of its abbot that Domesday Book can indifferently equate him with church and convent. more natural when it is remembered that the dead and thus no longer the subjects of rights. as Edward IV that need of a head for corporate activity will give.. much trouble.112 But restrictions must be laid on that power since, after all, the rights and purposes of founders must be protected. Maitland has printed a Register of Writs from the reign of Henry III which contains the royal writ protecting the convent against the forcible alienation of a former abbot - a protection of canonical law; 113 and the Statute of Marlborough in obviating the limitation of personal actions by the death of the wronged abbot in some sort That is perhaps the monks are legally Certainly as late 105 Laws of Ethelbert, c. I, STUBBS, SELECT CHARTERS (ed. Davis), 66. 107 I P. & M., 2 ed., 497. 108 BRACTON, f. 53. 109 Epist. Rom., XII, 4, 5; Epist. Cor., XII, 12, 14; Epist. Col., I, 18, 24. 111 I P. & M., 2 ed., 504. 112 Y. B. 18 HEN. VI, f. 16. Y. B. 1 EDW. IV, f. 15, 31, etc. 113 2 COLL. PAPERS, 144, no. 43. Cf. CORPUS JURIS, 3, X, 3, 10. emphasizes conventual rights.114 As the years go by these convents will bring their actions in a name which betokens incorporate aggregation;115 the "dean and chapter of St. Paul's" is neither dean nor chapter. It has a connecting link about it shall we say a seal? 116 which perhaps we may best term its corporate personality. And when Bracton talks of a body that endures forever, even though death may thin its ranks, though the language is vague and hesitant it is clearly reflective of new ideas.117 And what is perhaps of fundamental import is the thought to which Innocent IV gave decisive expression.118 Whether he in fact perceived the vast significance which lay behind his attribution of fictitious personality to communities may perhaps be doubted.119 But the phrase, whatever its author meant it to imply, gave exactly the impulse to the current of men's thoughts for which they had long been waiting. For immediately we have the acts of a person, the nature of that person may be matter of debate. Inevitably the phrase of a Pope begets discussion.120 What is more important is the means it gives us of passing from anthropomorphic terms (though retaining the memory of them) to representative action. If the group-person is to act, it will prove no small convenience to designate those through whom its action may be effective. It is difficult to persuade all men that you are right. Yet it seems clear enough that in the early church, as at Elvira,121 for instance, and at Nicæa,122 unanimity was essential; nor is there any suggestion of ought save unanimity at the fifth and sixth œcumenical councils.123 It seems plausible, indeed, to urge that not until the Council of Ferrara did the majority principle obtain its full sway in the corporate church.124 But long before this time the concept of 114 STAT. OF Marlborough, c. 28 (52 HEN. III). 115 Cf. BRACTON, NOTE-BOOK, Pl. 482, 654, etc. 116 Cf. Y. B. 20 EDW. III, 96, 98 (Rolls Series). 117 BRACTON, f. 374 b. The comparison is to a flock of sheep which remains the same though the individual sheep die. 119 Cf. on this Mr. H. A. Smith's pertinent criticisms, LAW OF ASSOCIATIONS, 152-57. He seems to me to have shown good ground for doubting Dr. Gierke's picture of Innocent as a great speculative lawyer. 120 3 GIERKE, GENOSSENSCHAFTSRECHT, 227-85. 124 II Ibid., 399, 402. Even then it is a two-thirds majority; and the attitude to representative action had been clearly understood. The Glossators had begun, if with hesitation, to call the delict of a majority of a church the delict of the church itself.125 Roffredus in the middle of the thirteenth century was discussing corporate personality with the comfort which comes from understanding; 126 and Johannes Andreæ found little difficulty in emulating that significant example.127 It becomes evident to men that what is important is not so much unanimous opinion as corporate opinion; and they begin to realize that corporate opinion is largely a matter of form to which the verdict of a majority will give substance.128 And by the time of the post-Glossators and very notably in the great Bartolus 129 — the idea of the group as a corporation is fully and strikingly developed.130 Nor was it difficult to apply these new doctrines to the great orders which were springing up at the behest of Francis and of Dominic. Dominic especially is one of the greatest of federalist statesmen. Almost from the outset the order was cognizant of representation as the basis of corporate action.131 It does not seem unnatural to suppose that the idea passed from the Black Friars to the convocation of the English church.132 But one of the primary objects of convocation is fiscal; and the kings must have soon discovered that representation is an admirable method of countering such absential recalcitrance as that of Geoffrey of York.133 Certainly little by little the idea seems to follow a secular path. But majority action did not come lightly into parliamentary affairs. As late as 1290 the barons could bind their absent peers only quantum in ipsis est and we do not know the extent of that power.' Contumacy, of course, merited and met with punishment; but the 134 the dissent of a single archbishop to the resolutions on the Filioque clause is very striking. II HEFELE, HIST. DES CONCILES, 461. 125 E. g., the gloss to L. 160, § 1, D. 50, 17, 10 C. 1, 2, Verbo Corrigimus. 126 Cf. his Quaestiones Sabbathinae, 23, 27. 127 JOH. ANDR. Nov. s. c. 16, in VI, 3, 4, n. 4. 128 Gloss. to c. 56, C. 12, q. 2, Verbo Accusandi. Cf. 3 GIERKE, GENOSSENSCHAFTSRECHT, 345, for a striking example. 129 Cf. C. N. SIDNEY WOOLF, BARTOLUS, 123-24, 160–61. 130 3 GIERKE, GENOSSENSCHAFTSRECHT, 354. 131 BARKER, THE DOMINICAN ORDER AND CONVOCATION, 4 ff., 18. 132 Ibid., 49, 51. 133 I STUBBS, CONSTIT. HIST., 6 ed., 562. medieval idea that each group in the realm may bargain separately about its ratability struggled long and hardily before it died. What slew it was the creation, in 1295, of a fully representative parliament.135 The "Common assent of the realm" of which the Confirmatio Cartarum makes such impressive mention,136 means finally that, for fiscal purposes at least, the kingdom has become incorporate. "It was no longer," says Stubbs,137 "in the power of the individual, the community, or the estate, to withhold its obedience with impunity." Somewhere or other the men of the kingdom, great and humble alike, are present in Parliament. That commune consilium regni which henceforward figures so largely in the preamble of statutes is the sign of a change drawn from ecclesiastical example. The administrators of the thirteenth century are learning the lessons of the canon law. Surely in this aspect we are to read the statute of Mortmain as the result of a growing acquaintance of the common lawyers with the nature of groups which the canonists have already long envisaged as immortal.138 The ecclesiastical community, moreover, comes with increasing frequency to court. It thus compels men to speculate upon its nature. They will learn why the new abbot will set aside an irregular conveyance of his predecessor.139 They will theorize as to why monastic tort is at bottom conventual tort.140 Even the conception of the church as a perpetual minor will at any rate make them see that the church lands are not the possession of its incumbent.141 The canons of Hereford may be sued where its particular canon has done wrong.142 Even if, as Maitland has pointed out,143 our lawyers will learn less than might be hoped from examples that derive from quasi-despotism, the mere fact of meeting is important. It is important because it prevents the knowledge of new ideas as to corporateness from perishing at birth. The clergy are a litigious race; and the rules of their legal governance must have compelled 140 Y. B. 49 Edw. III, Mich. Pl. 5. 141 I P. & M., 2 ed., 503. BRACTON, f. 226 b is the fundamental passage. 142 PLACIT. ABBREV. 53. |