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a frequent resort to the Corpus Juris from which their inspiration was derived. There our English lawyers will learn how majority action is corporate action and how the corporation is a person. And if they are slow to see the significance of so much abstractness, there will yet come a time when the movement from church affairs to the problems of the lay world may be made.
That Bracton could call the town an universitas is perhaps accident rather than design.14 Yet it is the borough which compels our lawyers to recognize the significance of theory. At what day the liber burgus becomes in a full sense corporate we may not with any precision speculate; but, of a certainty, the older authorities were wrong who ascribed that change to the middle fifteenth century.145 The communitas of the borough is gaining abstractness as the years of the first Edward draw near their end.146 In the reign of his successor the courts are talking freely of the bodiliness of towns.147 The good citizens of Great Yarmouth betray a healthy anger when the townsmen of their smaller brother “who are not of any community and have no common seal” pretend to burghal rights.148 The Liber Assisarum has not a little to say of the physical substantiality of a city which is not its citizens.149 Richard II takes compassion upon the good men of Basingstoke who have suffered the scourge of fire, and incorporation is the form his pity takes – with a common seal thereto annexed.150 Nor, assuredly, may we belittle in this context the meaning of his extension to cities and to boroughs of the provisions of Mortmain.151 It is made thereby very clear that the nature of corporateness is becoming known to men. The citizens of Plymouth were not less clear about its nature when they petitioned Parliament that for the purchase of free tenements for life they might become un corps corporat.152
14 BRACTON, f. 228 b.
2 Gross, op. cit., 18.
Close Rolls, 19 Edw. II, 457–61.
5 CHARTER ROLLS 336.
Ror. PARL. 663.
The union of the two Droghedas into a single county — a corporate county the record will make it 153 — suggests that we have passed to the language of a new jurisprudence. We have synthesized men into the abstraction of a new being. What has happened is less the acquisition of new rights than the formulation of a means whereby collective action may be taken by that which is not the body of citizens even while it is still the citizen body.154 The later use of the corporate term to mean that oligarchic body which will with such difficulty be reformed in the nineteenth century, is evidence of how easily the towns absorbed the possibilities laid open by representative action.155
The point to which such evidence must drive us is surely the admission that by the time of Edward III the concept of burghality has undergone a change. Not, indeed, that the meaning of that change has been grasped in any sense that is full and complete. If the courts cannot separate John de Denton from the Mayor of Newcastle, the ghost of anthropomorphism can still trouble the joys of corporate life. 156 Yet within less than a century the meaning of such confusion is clearly understood.157 But the attribution of property to a corporation as distinct from its members is already made at the earlier time; 158 and the great Fortescue will be willing to protect the corporator's property against seizure for the debts of the corporation.159 The lawyers, moreover, begin to wander from the realm of fact to that in which the delights of fancy may he given full rein. The judges can sit back in their chairs and speculate about its torts and treasons, 160 while Mr. Justice Chokesurely with some memory of the canon law in his mind — will inform us that it lies beyond the scope of excommunication.161 And since a corporate person must needs have a voice, the seal will be given to it whereby it may in due form have speech.162 Trespass
i Gross, op. cit., 94, n. 154 Cf. MEREWETHER & STEPHENS, Hist. OF BOROUGHS, 242.
2 MAY, Constit. Hist., 494 f.; MAITLAND, TOWNSHIP AND BOROUGH, 12. 156 Y. B. 17, 18 Edw. III, 70 (ed. Pike). 157 Y. B. 8 HEN. VI, Mich. Pl. 2, 34, and cf. 1 P. & M., 2 ed., 493.
17 Ass. Pl. 29. Cf. also Y. B. 8 HEN. VI, Mich. Pl. 2. 169 Y. B. 20 HEN. VI, Pl. 18. 160 Y. B. 21 Edw. IV, Pl. 13, 14. 161 Ibid., Pl. 14.
162 Y. B. 21 Edw. IV, Hil. Pl. 9. I need not say how much this analysis owes to Maitland. See especially 1 P. & M., 2 ed., 488–93, and 678 ff.
against its property the courts will not hesitate to admit 163 if they still shrink somewhat from admitting its sufferance of certain grave forms of wrong.164 Surely the “gladsome light” of this jurisprudence is a new and a refreshing thing.
A new commerce, moreover, is beginning, and it casts its shadows across the pathway of our history. The Black Death and the Hundred Years' War brought with them distress in their trail. The social movements which are their consequence are too vast for a local authority to control, and from separatism we pass to the national consolidation which reached its zenith under the Tudors.165 What is perhaps above all important is its resultant emphasis on the class structure of industrial society.166 The emergence of the capitalist seems to synchronize with the emergence of new forms of business organization. As early as 1391 Richard II, whose reign seems generally to have marked the onset of a new time, was granting a charter to what is at least the communitas of the English merchants in Prussia;167 and Henry IV was not slow to emulate the novelties of his predecessor.168 The organization of foreign merchants in England will be encouraged, since a unit permits with satisfactory ease of the assessment the kings hold dear.169 The very phrases which suggest the corporate idea begin everywhere to make their appearance. Henry VII made the Englishmen of Pisa a corporation in 1490.170 The great trading companies which are in some sort the parents of empire begin to buy their charters. Henry VII provided the Merchant Adventurers with what protection the written privilege of an English king might afford; 171 and it has been significantly pointed out by Dr. Cunningham that the object of the grant was rather the encouragement of commercial speculation than the governmental regulation of commerce. These companies seem to arise with all the spontaneity that marks the communalism of our earliest history. Their appearance is very
163 Y. B. 21 Edw. IV, Pl. 13.
166 Cf. Mr. Unwin's pregnant remarks. INDUSTRIAL ORGANIZATION IN THE XVITH AND XVIITH CENTURIES, 16-19, 85-93.
7 RYMER, FEDERA, 693. 168 Ibid., 360, 464.
1 CUNNINGHAM, op. cit., 420-22.
striking, since the simpler forms of such business organization as the partnership were already well known.172 But the partnership seems too narrow in its scope for the larger ideas of fellowship these fifteenth century Englishmen have inherited from their ancestors. Why they should have chosen the corporate form of life is perhaps not wholly clear. But the step is taken, and from the time of Elizabeth it is in them rather than in the municipal corporation that the historian of corporate theory must be interested. Moreover, after 1515 they could not escape from the king's hands even if they remained a voluntary society; the ministers of Henry VIII recked but little of formal matters. The companies, for the most part, deal with a foreign trade in their earlier history. They want privileges because they are journeying into far, strange lands; and it is surely one of the happiest thoughts of Philip and Mary (whose grandparents had tasted the rich fruits of maritime adventure) which led them to incorporate a company of which the great Sebastian Cabot was the governor."
We may not surely deny that this corporateness is inherited from burghal organization. These merchants have learned the value of their fellowships from the gilds of the towns; and not seldom they strive, in all the bitterness of a novel rivalry, with the older crafts and mysteries of the towns.175 It is perhaps from the analogy of the medieval staple towns that we shall find the connection.17 Its whole point lies in the organization of a group of men into something like an unity; and once the charters are forthcoming, the incidents of corporateness are not wanting. The sense of exclusiveness must have been fostered by the stress of the keen foreign competition they had from the outset to face. Englishmen have had pride in their isolation, and they did not find it difficult to combine against alien rivals.177 We can imagine that a medieval government which understood the difficulties of evolving a foreign policy would welcome the spontaneous development of groups of
172 ASHLEY, ECONOMIC HISTORY, pt. ii, 414.
173 See 6 HEN. VIII, c. 26. This succession of acts seems to have ended in Edward Sixth's reign.
2 HAKLUYT, VOYAGES (Maclehose ed.), 304. 175 LAMBERT, Two THOUSAND YEARS OF GILD LIFE, 158, for Hull; LATIMER, Hist. OF THE MERCHANT VENTURERS OF BRISTOL, 26. 176 ASHLEY, op. cit., pl. ii, 217.
1 CUNNINGHAM, op. cit., 417–20.
men who for the royal protection we term incorporation would call a new world into being.178
These companies are, at the outset, at least, devoted for the most part to external trade; so John Cabot and his sons, in return for no more than an exclusive right to traffic (whereof the fifth part of the capital gain will fill the coffers of the avaricious Tudor), will engage to plant the English flags in lands "which have hitherto been unknown to Christians."179 That Master Hore of London whose "goodly stature and great courage” perhaps inclined him to the “study of cosmography” planned his establishment of the Newfoundland fisheries in return for a similar monopoly.180 But gradually the expedient becomes of obvious advantage in internal commerce. When burghal monopoly of trade begins to break down, it became clear that the crafts were no longer able to cope with the scale of national development. It was obvious that the essential need was either a fully developed national control or no control at all. And it is perhaps singularly fortunate that this industrial expansion should have synchronized with the accession of so able and vigorous a sovereign as Elizabeth.181
The patents of monopoly which she granted with so royal a hand were a definite and systematic attempt after industrial unity. They continued in a new fashion the regulation which had made the crown the center of the economic system. Granted at first rather to individuals than to groups of men, the opportunities of profit they opened up soon and naturally attracted the courtiers into the race for wealth. So that if Elizabeth was somewhat hard in her dealings with inventors,182 she was apparently woman enough to make the road that led to her favorites' hearts a gilded one. Little by little the recipient of her bounty becomes a group rather than an individual, until, under the Stuarts, the collective monopoly is the more typical form.183 In the mining monopoly of Master Thurland of the Savoy, Pembroke and Cecil and Leicester are all most willing to share.184 Corporations, indeed, we shall hesitate
2 CUNNINGHAM, op. cit., 214.
2 Ibid., 25.
183 Ibid., 35. 184 Ibid., 50.