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

to call groups that are often no more than amorphous partnerships. But that form of organization is far from wanting, and its meaning is very clearly conceived. When Sir Thomas Smith, who toyed with chemistry in the intervals, doubtless, of his political and legal studies, claimed to have found at length the philosopher's stone, a corporation was founded to do him honor for so signal a triumph.185 Drake seems fully to have realized the meaning of such organization; 186 and we may be sure that the great Sir Humphrey Gilbert when he incorporated "The Colleagues of the Fellowship for the Discovery of the Northwest Passage "187 was by no means sacrificing the practical to his sense of stateliness. The list of monopolists which Sir Robert Cecil communicated to the House of Commons in 1601 contained not a few groups of men.188 That "Fellowship of English Merchants for the Discovery of New Trades" wherein, mayhap, the Muscovy Company concealed its commercial cousinship with barbarians in dignified phrasing,189 shows us in what direction men's minds are tending. The relation, in fact, between monopolies and joint-stock enterprise is the dominant note of the time.190 The resuscitation of local companies is giving new vigor to the collective efforts of men.191 It is suggestive of the recognition of value in such effort that a definite encouragement of their creation should meet with the approval of the crown.192

All this we take to mean that the significance of corporateness has been firmly grasped. And when men tell us of the causes of their desire for it, they speak with a definite perception of its character far different from the misty conceptions of medieval time. The East India Company becomes "a body corporate and politic" because only in such fashion can it cope with problems so vast as that of an eastern civilization.193 The immortality of a corporation

185 The Society of the New Art. See the amusing account of its adventures in STRYPE, LIFE OF SIR T. SMITH, 100 ff.

186 S. P. Dom. Eliz., XCV, 63.

187 S. P. Dom. Eliz., CLV, 86. 188 PRICE, op. cit., 148 ff.

189 3 HAKLUYT, op. cit., 83.

190 UNWIN, op. cit., 164.

191 LAMBERT, op. cit., 236, 273, 316; HIBBERT, GILDS, 77. The Statute of Artificers had, of course, much the same purpose.

192 Winchester, in LAMBERT, op. cit., 382; and cf. 2 CUNNINGHAM, op. cit., 36.

193 The charter of 1600 in PROTHERO, STATUTES AND CONSTITUTIONAL DOCUMENTS,

448 ff.

was what tickled the palates of the Miners Royal.194 Unity of assent and need of better government led Henry VIII to give the merchants of Andalusia the rights a moment of friendship with the emperor led the latter to confirm.195 Thomas Thurland, whom much mining had made somewhat impoverished, turned his holdings into a company in admirable anticipation of modern methods.196 When in 1605 the "free traders" of the time sought means of hindering this corporate growth, the merchants who favored it were very ready with their answer. They insisted that only with such an organization could they have the adequate protection of the law. The trade needed regulation, and its corporate character provided the simplest means to that end. Competition, moreover, would prevent the maintenance of quality and would be subversive of all good order. The Privy Council accepted their statement and the charter was renewed.19 197 The arguments seem to come with a familiar note to a generation not less puzzled by a similar question. But even more striking, perhaps, were the words of one who mirrored in himself the resplendent qualities of that spacious time. When the House of Commons, on the 20th of November, 1601, debated the merits of monopolies as an economic system, there were not a few who strove to distinguish between grants made to persons and grants made to the corporate groups of men. Francis Bacon, at any rate, saw clearly the illogic of such distinction. "If her Majesty," he said,198 "make patent or a monopoly into any of her servants, that we must go and cry out against; but if she grant it to a number of burgesses, or a corporation, that must stand, and that, forsooth, is no monopoly." The history of half a thousand years is in that significant equation.

VI

If it was thus a new world that had developed, traces of the old still linger about its confines. If the corporation becomes a fully developed legal person, it is still dependent upon royal caprice. The king concedes it privileges; it is from his bounty that it takes

194 STOW, SURVEY (ed. Strype), 246.

195 LETTERS AND PAPERS OF HEN. VIII, No. 6640.

196 PRICE, op. cit., 50.

197 S. P. Dom. JAC., I, XII, 59, 64.

198 PROTHERO, op. cit., 112. Cf. also p. 115.

199

its origin. In the last years of Edward III two judges did not shrink from holding that only the crown could erect a corporation.1 When the citizens of Norwich pleaded their crimes to Sir John Fortescue, their liberties de alto et basso were seised into the royal hands.200 Madox has pointed out 201 that in the Tudor age gildation and incorporation are used transferably by the statutes; but from the Conquest the lawfulness of gilds depended upon royal permission. We cannot avoid the conclusion that the power to incorporate is no more than part of the general prerogative by which vast powers of regulation inhered in the king. The chartered companies demanded their charters because without them life would have been less than tolerable. While their members may have had a common law right to pass freely without the realm for any cause,202 yet the king could prohibit any emigration on grounds of public safety;203 and the wisdom of Richard II chose to ordain, as the wisdom of James I chose to repeal, that none should pass out of the kingdom without royal license,204 while it was understood men soothe themselves a little easily with phrases that his power was not to be abused in the depression of commerce.205 Who is there who can call the crown to answer? Your medieval merchant has sufficient experience of the ills he might not remedy. He will prefer to purchase his charter - the equivalent of a continuous passport - and avoid the costliness of legal controversy. The East India Company, in a later reign, was to have some hard experience of what that purchase meant.206

Nor was this theory of concession in any way diminished by such powers as those possessed by pope and palatine. If the popes did set up their religious corporations,207 the marital difficulties of Henry VIII soon drew a clear distinction between right and courtesy. The power of the Bishop of Durham 208 was clearly derived from the jura regalia bestowed on him by the Conqueror 199 Y. B. 49 Edw. III, f. 4, per Candish and Knivet, JJ.

200 MADOX, FIRMA BURGI, 291.

201 Ibid., 29.

202 FITZHERBERT, NEW NATURA BREVIUM, f. 85.

203 Dyer, 165.

204 5 R. II, repealed by 4 JAC. I, c. I, § 22.

205 HARGRAVE, LAW TRACTS, 91-92 (HALE, DE PORTIBUS MARIS, pt. 2, VIII). 206 3 MACAULAY, HISTORY OF ENGLAND (Everyman's ed.), 241.

207 Y. B. 14 HEN. VIII, 2.

208 GRANT, CORPORATIONS, II.

in return for an inconvenient proximity to Scotch marauders. Even more striking was the Elizabethan delegation of this power to any person or persons who should erect a hospital,209 whereof Coke significantly remarked that "these words do extend to anybody politic or corporate "210-- an interpretation to which an earlier Tudor had already given utterance.211 The corporation by prescription - which seems to originate in this time, and thereby to prove the general acceptance of this concession-theory 212 takes for granted the written fact of royal approval. That which exists by implication surely does no more than define with firmness what hitherto has been vaguely deemed the royal will.213 And since the Courts hold firmly that, if they exist without royal authority, attack on these corporate privileges is a valuable procedural plea,214 it is surely plain that the early prerogative of the crown suffers no derogation.215 The legal construction of charters seems to make evident the same tendency of thought. The charter, as Coke tells us,216 is no less effective than an act of Parliament. It may not be interpreted in a manner other than that most favorable to the crown.217 It limits by its very circumstances. These, surely, are the thoughts of men who deal with the rights of property. They are the thoughts of men who do not dream of questioning a royal prerogative which lies at the basis of the state.

But it is perhaps the extent of regulation and of confiscation which marks most clearly the character of this attitude. Everyone knows of that famous Ipswich procedure when the right to form a merchant-gild was granted to its burgesses.218 When the merchantgild passes from our view and the crafts take their place, we find

209 39 ELIZ. C. 5.

210 2 Co. INST. 722.

211

32 HEN. VIII, c. 7. Cf. Dyer, 83 b. The reaction from this view does not seem to come until 9 GEO. II, c. 36. Cf. 2 M. & W. 890.

212 Y. B. 2 HEN. VII, 13. Cf. Anon. dofft. 556, and Jenkins v. Harvey, 2 C. M. & R. 339; 10 Coke Rep. 27.

213 Y. B. 12 HEN. VII, 29.

214 Anon. Dyer, 100. Cf. Pl. Q. W. 618.

215 Y. B. 20 EDW. IV, 2; Ibid. 22 Edw. IV, 34; 12 HEN. VII, 27. Cf. BROKE, Abr. CORP., No. 33.

216 8 Coke Rep. 8. Cf. HALE, JURISDICTION OF LORDS HOUSE (ed. Hargrave), 20 ff.; Plowden 214.

217 Priddle v. Napper, 11 Coke Rep. 8 (1612); Knight's Case, 5 Coke Rep. 56 (1688); Willion v. Berkley, Plowden 243 (1662).