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

141 I P. & M., 2 ed., 503. BRACTON, f. 226 b is the fundamental passage.

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.

V

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

144 BRACTON, f. 228 b.

145 As Merewether and Stephens did. Cf. I GROSS, GILD MERCHANT, 93 ƒƒ.

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 be 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

154 Cf. MEREWETHER & STEPHENS, HIST. OF BOROUGHS, 242.

155 2 MAY, CONSTIT. HIST., 494 ff.; 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.

158

17 Ass. Pl. 29. Cf. also Y. B. 8 HEN. VI, Mich. Pl. 2.

159 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 ƒƒ.

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.

164 Ibid.; and cf. 22 Ass. Pl. 67.

165 Cf. I CUNNINGHAM, GROWTH OF ENGLISH INDUSTRY, 375 ff.

166 Cf. Mr. Unwin's pregnant remarks. INDUSTRIAL ORGANIZATION IN THE XVITH AND XVIITH Centuries, 16-19, 85–93.

167

7 RYMER, FŒDERA, 693.

168 Ibid., 360, 464.

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.173 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.174

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.176 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.

174 2 HAKLUYT, VOYAGES (Maclehose ed.), 304.

176 LAMBERT, TWO THOUSAND YEARS OF GILD LIFE, 158, for Hull; LATIMER, HIST. OF THE MERCHANT VENTURERS OF BRISTOL, 26.