The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• A Table of British Regnal Years
• Select Essays In Anglo-american Legal History: Volume Iii History of Particular Topics, Continued
• Part V.: Commercial Law
• 47.: Thomas Edwar Scrutton, General Survey of the History of the Law Merchant 1
• 48.: Spencer Brodhurst, the Merchants of the Staple 1
• 49.: Francis Marion Burdick, Contributions of the Law Merchant to the Common Law 1
• 50.: Edward Jenks, the Early History of Negotiable Instruments 1
• 51.: William Cranch, Promissory Notes Before and After Lord Holt 1
• 52.: William Reynolds Vance, the Early History of Insurance Law 1
• 53.: Edward Wyndham Hulme, the Early History of the English Patent System 1
• 54.: Joseph Henry Beale, Jr., the History of the Carrier’s Liability 1
• 55.: Cecil Thomas Carr, Early Forms of Corporateness 1
• 56.: William Mitchell, Early Forms of Partnership 1
• 57.: Samuel Williston, the History of the Law of Business Corporations Before 1800 1
• 58.: Simeon Eben Baldwin, History of the Law of Private Corporations In the Colonies and States 1
• Part VI.: Contracts
• 59.: James Barr Ames, the History of Assumpsit 1
• 60.: James Barr Ames, the History of Parol Contracts Prior to Assumpsit 1
• 61.: John William Salmond, the History of Contract 1
• 62.: Crawford Dawes Hening, History of the Beneficiary’s Action In Assumpsit 1
• 63.: Oliver Weldell Holmes, Jr., the History of Agency 1
• Part VII: Torts
• 64.: James Barr Ames, the History of Trover 1
• 65.: Van Vechten Veeder, the History of the Law of Defamation 1
• 66.: John Henry Wigmore, Responsibility For Tortious Acts: Its History 1
• Part VIII: Property (in General)
• 67.: James Barr Ames, the Disseisin of Chattels 1
• 68.: Frederick William Maitland, the Mystery of Seisin 1
• 69.: Arthur George Sedwick and Frederick Scott Wait, the History of the Action of Ejectment In England and the United States 1
• 70.: Harold Dexter Hazeltine, the Gage of Land In MediÆval England 1
• 71.: Arthur Underhill, Changes In the English Law of Real Property During the Nineteenth Century 1
• Part IX.: Wills, Descent, Marriage
• 72.: Charles Gross, the MediÆval Law of Intestacy 1
• 73.: Oliver Weldell Holmes, Jr., Executors In Earlier English Law 1
• 74.: Robert Caillemer, the Executor In England and On the Continent 1
• 75.: Melville Madison Bigelow, the Rise of the English Will 1
• 76.: James Bryce, Marriage and Divorce Under Roman and English Law 1
• List of Authors Contributing

55.

EARLY FORMS OF CORPORATENESS1

By Cecil Thomas Carr2

THE Italians conceived the corporation to be a fictitious person. Now this was a refined and artificial doctrine, and therefore a late one. Before it spread over England, conducted through the channels of Canonism, natural corporateness had already appeared in certain forms. With regard to this natural growth, there are many questions which, if we cannot answer, we ought at least to ask. What was the earliest form of corporateness here? Was it popular with Englishmen? Upon what principle and by whose authority was corporateness granted to some groups of persons and withheld from others? How far did the early form differ from the final, and by what influence was that difference gradually removed?

The early forms of corporateness are two-fold—the ecclesiastical and the lay. Of these the ecclesiastical body was the more abstract, foreign, and fictitious: the lay body was the more concrete, natural, and spontaneous. The spiritual bodies were dependent upon Canonist Law and upon the authorised version as ordained by the Pope. Their want of a natural membership and a natural existence, and their inability to sin and be damned, left them a mere name. On the other hand, the temporal bodies—and especially the early forms of municipal association—were vigorous, independent, and full of a corporate spirit; they soon showed themselves fit for that autonomy which is claimed to be native in Englishmen.

In a previous chapter on the corporation sole some slight mention has been made of the beginnings of corporateness in the Church. It is now proposed to consider the beginnings of municipal corporateness.1

When did the borough become a corporation?

Presumably we should reply: “When the lawyers conferred upon it an abstract juristic personality.” That would be to answer one question by suggesting another.

If a royal charter necessarily implied incorporation, then there were municipal corporations in the time of William the Conqueror. Among the privileges “incident” to the perfect corporation are the right to use a common seal, to make by-laws, to plead in Courts of law, and the right to hold property in succession. If the existence of these privileges necessarily implied corporateness, then there were many municipal corporations within a few centuries of the Conquest. But these privileges were apparently held alike by boroughs which had, and boroughs which had not, a royal charter.

The question is one to which Merewether and Stephens paid special attention. Their laborious History of Boroughs, published in 1835, was designed to throw light on what was then the engrossing subject of municipal reform. The sixth of the eleven inferences which they claim to have established declared that the burghal body got its first charter of municipal incorporation in the reign of Henry VI.2 Their research fixes the first date at which certain magic words are found in use as a formula of incorporation. Being thus concerned with documentary evidence, they nowhere admit that the essence of municipal corporateness is to be found far earlier. Both their facts and their inferences have been vigorously attacked, charters being cited which suggest formal incorporation and a kind of abstract personality conferred on towns a hundred years before. Dr. Gross observes that municipal corporateness existed as early as the reign of Edward I.1

Such differences of opinion illustrate the difficulty of searching for the germ of true corporateness in early institutions. Much caution is needed on a road where milestones are irregular and landmarks few. Stages in the development of gild and borough can be definitely dated (if at all) only when all extant charters have been disclosed, analysed, and classified. The various forms of apparent corporateness are neither clearly marked off from one another, nor capable of classification according to modern standards. Such differences as existed in fact between these various forms are ignored and confused by the vocabulary. If twenty men hold land (a) jointly, (b) severally, or (c) as a true corporation, these are three distinct conceptions: but all three are covered in early times by the one word communitas.2 Inferences based upon names are therefore dangerous. But the ambiguity of words does not rest there. Even in modern English the word corporation is used with such a loose and extended meaning that it is necessary to define the sense in which the word will be used in this chapter. Some writers have applied the word to any association which combines communal ownership and interests with the slightest degree of autonomy and representation.3 Thus Sir Henry Maine says, “The family is a corporation.”4 Another writer observes that “as cities and built towns have a more compact municipal life and action than other places, the notion of corporations (in the political sense) is apt to be exclusively attached to them. But this is quite incorrect. Every place where a court leet has been held is, or has been, really a corporation. Hundreds are corporations. . . . counties are also corporations. So also are parishes and the true ‘Wards’ of London.”1 It is proposed to use the word corporation now in the strict sense of a body possessing an ideal personality which is distinguished from the collective personalities of the members which compose the body. In this sense of the word, the family, the county, and the hundred never became corporations.

While examining the early forms of the borough, one becomes aware of other groups of men which might have attained, but which failed to attain, incorporation.

In the village, for instance, there existed, even before Domesday, a kind of communal ownership. Whether the land was first owned by the community, or—which seems more probable—first owned by the individual, we cannot pause to consider.2 What was the exact nature of that communal ownership we cannot hope to decide. All villages were not alike, and if they were alike they would probably resist any attempt to thrust them into the classes approved by modern ideas.

Corporateness is on no account to be presumed from communal ownership. True corporateness entails a polish and refinement not to be looked for in the early stages of village life. In the words of Professor Maitland, “if we introduce the persona ficta too soon we shall be doing worse than if we armed Hengest and Horsa with machine-guns or pictured the Venerable Bede correcting proofs for the press.”3

Yet although corporateness is not to be presumed where community is found, the existence of communal ownership offers some prospect that corporateness may appear later. But that is just what does not happen in the village. The village is never incorporated. At first it is too small, too unimportant, too ill-organised. Its geographical limits, its agricultural system, and the natural feeling of neighbourliness tend to make a unit of its inhabitants; but the group of persons never becomes a true group-person. At a later date the village fails to attain corporateness for another reason. In England, as in Germany, the “kings became powerful and the hereditary nobles disappeared. There was taxation. The country was plotted out according to some rude scheme to provide the king with meat and cheese and ale. Then came bishops and priests with the suggestion that he should devote his revenues to the service of God, and with forms of conveyance which made him speak as if the whole land were his to give away.”1 And so, when the king has learnt that the land is his land, and is a source of possible profit to him, the villages throughout the country begin to fall under the dominion of lords. Henceforward the village develops not so much of itself as under the lord—and perhaps in spite of him. He interposes himself between it and all those external forces which might otherwise have hammered it into corporate shape.

A similar result occurred in the case of the manor. The manor was an economic, administrative, and judicial unit, but, as such, it failed in general to become a group-person, because there was one person (the lord) who could always represent the group of persons contained in the manor. What the manor was is not precisely known. It was certainly a financial unit in the assessment of Domesday and long afterwards. Taxes were more conveniently and speedily collected in large round sums from rich landlords than in small sums from scattered and possibly insolvent tenants. Consequently the landlord was made to stand between the king and the group of manorial taxpayers who might otherwise have been ultimately formed into a corporate organisation. There was never in the village or in the manor that keen sense of common property, of profitable common assets, of common revenues and privileges, which so largely assisted the borough to realise corporateness.

The county also and the hundred failed to become generally incorporated. They lacked the importance, the spontaneity, and the unity of the borough: they had no such opportunities or desire for organising a natural self-government: they had no such privileges to strive for and to maintain.

Both county and hundred were governmental districts:1 each had a court, and apparently each had had communal property.2 Some counties even possessed such charters as were given to early boroughs. Devon and Cornwall received from King John grants of liberties which were in form not unlike the grants made to towns.3 They were treated as a communitas, a collective body of men whom to name individually would be impossible as well as wearisome. A grant of liberties had been made by John in similar form to all the free men of England and their heirs. But the Magna Carta no more made England a corporation than the charters to Devon and Cornwall incorporated the men of those counties. The western shire may by its position and history have possessed and preserved an unusual degree of exclusive unity. There seems to have been a common seal belonging to the county of Devon.4 The county also was capable of being indicted, although it was doubtful how damages could be recovered from it.5 “Among the several qualities which belong to corporations,” says Lord Kenyon, C. J., in 1788, “one is, that they may sue and be sued: that puts them, then, in contradistinction to other persons. I do not say that the inhabitants of a county or a hundred may not be incorporated to some purposes, as if the king were to grant lands to them, rendering rent, like the grant to the good men of Islington town. But where an action is brought against a corporation for damages, those damages are not to be recovered against the corporators in their individual capacity, but out of their corporate estate: but if the county is to be considered as a corporation, there is no corporate fund out of which satisfaction is to be made.”1 The county therefore, though an organised collective body with group liability, failed to obtain a corporate existence apart from that of the several inhabitants.

That appearance of corporateness which grew up in the English boroughs was a native English product. However Italian may have been the principles which came to govern the corporation at the end of the Middle Ages, it is doubtful whether there was anything Roman about the earliest English municipalities, except perhaps, here and there, the fortifications. The connection with Rome which was afterwards so well maintained in the ecclesiastical houses, had been broken in the towns. The thread of Roman influence in England had been snapped when the Romans retired and left the country to relapse into barbarism.

From that barbarism and lawlessness there emerged at length the true germ of municipal life. It was the burh, the strong place upon a hill, the rallying-point and shelter for the country-side. At first it was neither large, nor populous, nor well-built. It was just such a stockade as any man might make wherewith to enclose and protect his house. But it protected a group; and it was the interest and duty of the group to establish and maintain the defences. Not only must each man help to build and repair the walls, but he must also help to maintain some kind of rough discipline within them. There must be no burh-bryce,2 no breach of the burh or borough.3 The burh is sacrosanct.1 Moreover, the greater the burh, the more sacred the peace therein.2

Then, because there was peace in the borough, men carried on their buying and selling therein. There were witnesses: there were all the materials for doing right between honest men and thieves, and generally for hearing the case of any who had a grievance. If it was well to have witnesses for the sale of cattle and goods, it was not well to have sales of cattle and goods where there were no witnesses. Consequently men sought the site of the burh because it was a military and a marketing centre, a meeting-place, and a place for obtaining justice.3

The military needs of the country-side in time became less pressing, but otherwise the burh or borough grew in importance. After the Norman Conquest the town was not protected by a common fort, but was dominated by a castle.4 The institution of these castles was typical of Norman rule. The king assumed a new position as the overlord of each of his subjects: henceforward a universal “king’s peace” was to be substituted for the various local “peaces.”

But in spite of the pressure of Norman rule the rise of the boroughs was not for long impeded. Open rebellion had been powerless to regain England for the English, but in the towns the innate Saxon spirit of self-government asserted itself. Commerce grew: population increased: the position of the old burghal shire-towns was strengthened. Their importance began, however, to be challenged by upstarts, enfranchised manors, and other vills which enjoyed religious or commercial advantages. Still it was possible to distinguish the old borough from its newer rivals by a test which was not theoretic, but practical. It was not a difference arising out of the presence or absence of royal gifts of franchise: it was a difference arising out of facts within men’s knowledge. Local representation was required when the judges were sent round the country on circuit. The vill sent a reeve and four men to attend the justices in eyre: the borough sent twelve men. There was an unmistakable distinction of fact.1 A town either did, or did not, send twelve men. The distinction was perpetuated in two ways. In the first place it was important for the governors of the county. By the rough and ready methods of direct taxation in the twelfth century, “cities and boroughs”2 were charged with the payment of certain gifts and “aids.” The Exchequer was not likely to allow uncertainty to exist with regard to the towns which owed the tax. Secondly, the distinction was an important one for the governed, when the parliamentary system was created in the time of Edward I. For the first great representative council3 writs were directed to the sheriffs of certain counties and to certain boroughs and cities, commanding the recipient to choose knights, burgesses, and citizens to attend.4 The borough contributed its two burgesses if it had previously sent its twelve men to attend the justices in eyre. There was thus less doubt whether a town was or was not a borough.

The communalism of the early village was not reproduced in the early borough. This was not because there was lacking among burgesses the identity of agricultural interest which existed amongst villagers. On the contrary there was a strong pastoral element in the early borough. But the burgesses, when once they ceased to form units in the scheme of national and local defence were not knit together by reason of land tenure. Trade and the borough organisation upset the old agrarian scheme. The borough had to fight its own battle against trade rivals at a time when commercial success was a matter of trade monopoly. It had to struggle for itself to obtain its monopoly, to win its charter, to gain its right to manage itself and farm its own tolls. It was these common aspirations and interests which bound the burgesses together. They were not united as were the villagers, by reason of their being tenants of one lord.

The burgesses indeed were not tenants of one lord. Their tenure was heterogeneous.1 Homogeneity vanished before the new influences of burghal life.2 And because there was less homogeneity in burghal tenure, the lord had the less power in the borough. The burgesses dealt with the king direct: they excluded the mesne lords. The king exacted his tolls and taxes from the townsmen, and they tried to win from him the recognition of their rights of meeting and market. They strove to eliminate the middleman. They offered a fixed round sum as the farm of their borough, and desired to assess for themselves in their own manner the relative liabilities of burgesses to make up that sum. Thus the payment of the firma burgi by the community was the beginning of municipal self-government, and a step—though not the final step—in the direction of corporateness.

Some important results follow. Burgesses did not hold land as an individual held it. They broke loose from the feudal system. They evaded, when they could, the discharge of feudal dues. The lord of the land lost his near interest in it: he lost his escheat: he became remote: he sank back into the position of “the man with a rent-charge.”3 The men of the borough contended stoutly for the authority of the burghal courts, and for the validity of alleged burghal customs. One such custom concerning burgage tenure4 as upheld in the borough court permitted men to bequeath their houses by will, as “quasi-chattels.”5

The borough had considerable advantages to lose. These advantages were intimately concerned with the prosperity of the community, and so were highly prized. They were for the most part of spontaneous growth, not acquired by formal grant. The king had not yet formulated in full his royal right to confer upon, and withhold from, groups of townsmen various privileges which might be made a source of profit to the royal purse. Hitherto these privileges had been claimed by the burghers without offence and exercised without restriction.1 But the day came when the kingly prerogative was asserted in order to uphold the kingly dignity and fill the kingly pocket. It was to the interest of the Crown that liberty enjoyed by the subject should be considered a diminution of the power enjoyed by the king; consequently it was a gracious concession on the part of the king, which the subject should acknowledge with gratitude and even payment. However strong the natural growth of these burghal privileges, the borough was not safe in its possession of them until they were recognised and confirmed by the authority of the Crown. Natural prescriptive right had to be supplemented or supplanted by royal authorisation.2 The burgesses wished to be secure in their title to the franchises which they claimed. There were kings like Richard I who were perfectly willing, for a consideration, to meet the wishes of the burgesses.1

Every instance of a charter granted to a town was an opportunity for the Crown to define, to amplify, or to complicate that formula in which earlier royal concessions to towns had been made. Every time the king or the royal advisers framed a charter, he or they had to consider what he was conceding and to whom. Was he making a grant merely to the citizens of a town, or to them and their heirs, or to them and their successors? Who was to have the benefit of the grant when the citizens died? Would the citizens as a body ever die?

It was probably a long while before the communitas of townsmen was regarded as anything more than a mere aggregate of individuals. But the more the townsmen acted and were treated as a unit, the more natural it would seem to treat them as a collective person. To regard the group as a single person would be impossible until the group will was regarded as a single will.

Sometimes men are unanimous. In that case plurality naturally becomes unity: the many think and act “like one man.” But more often there is dissension: then unity becomes impossible—or possible only by some kind of fiction. Suppose a score of men cry “No,” while 80 cry “Aye”: to our modern minds it is plain that the “Ayes” have it. But the whole hundred men cannot thereby be said to cry “Aye,” unless men are content to ignore the voice of the minority and agree to record a fictitious unanimity. This recognition of the majority as equivalent to the whole, although so readily allowed to-day,2 is not an early principle. To count polls, to “give one man one vote,” to make a man count for one and no more, must have seemed in the Middle Ages unnatural and inconvenient. The opinion of the sage was thereby made of no greater weight than the opinion of the fool.

Italy and the Church helped to establish the authority of the major pars.1 It was conceded that the will of the universitas could be expressed by the major pars of members properly present at a proper meeting, if the major pars were also the sanior pars. Henceforward the shout of the major et sanior pars was allowed to drown the shout of the minority. When a minority began at length to be considered as bound by the vote of the majority, the communitas of the whole body began to show a truer corporateness.2

Two other influences were at work to unify and personify the group, the common seal,3 and the common name. The use of a seal provided a tangible token of burghal unity and unanimity. The seal was an authoritative sign which many men who could not read could recognise. The formal affixing of the common seal sanctified the expression of the common will and accentuated the singleness of the collective person. This accentuation was deepened by the existence of a common name.4 The possession of a common seal and a common name tended to mark off the borough community from other bodies which consisted merely of co-owners or joint tenants. The names of nascent corporations remained, however, suggestive of collective rather than single personality. The borough of X and the university of Y are legally described as the Mayor, Aldermen, and Burgesses of X, and the Chancellor, Masters, and Scholars of Y.5 The collective character of such corporate names show how hardly the personality of the group was to be distinguished from the sum of the members thereof. Nevertheless the facts were being prepared for the theory.

There is nothing surprising in the idea that a group of men is capable of collective action. Instances of early group-action might be multiplied almost indefinitely. There was, for example, group-accusation in the process of frank-pledge: in the village there was group-liability, in the manor group-payment. When the group-action becomes organised, the group is readily conceived to act as a person.1 One remarkable case of village personality is to be found in the Select Pleas in the Manorial Courts:2

“Ad istam curiam venit tota communitas villanorum de Bristwalton, et de sua mera et spontanea voluntate sursum reddidit domino totum jus et clamium quod idem villani habere clamabant.”

The village of Brightwaltham appears in Court as an organised community, a definite party to an action. By virtue of a quasi-juridical personality it enters into a formal agreement with the lord of the manor. It resigns its claim to the wood of Hemele, and in return gets rid of the lord’s claim to the wood of Trendale. If the feebly organised village had something of juristic personality, the strongly organised borough was likely to possess more. It is therefore the less surprising to find London town spoken of in a Yearbook of Edward III as a “Cominaltie come un singuler person qe puit aver action per nosme de comon come un sole person averoit.”3

If the borough could be thought of as a person, the time was now at hand when it could be considered a perpetual person.4 Mortmain legislation had hitherto been confined to ecclesiastical associations, but towards the end of the fourteenth century a change took place. It was realised that it was inconsistent and inconvenient that citizen groups should be exempted from the laws which were applied to religious groups. Accordingly the Second Statute of Mortmain struck at municipal bodies, because “mayors, bailiffs, and commons of cities, boroughs, and others which have offices perpetual” were “as perpetual as men of religion.”1 Thus this statute was not the least powerful of those forces which were co-ordinating the citizen body with the religious house, and preparing in England the way for the more refined Italian doctrines of corporateness.

To call a borough a perpetual person was to emphasise the distinction between it and its mortal members. To bring the borough into line with the religious houses was to subject it to the exact and polished notions of the Canonists. Side by side the members of the borough and of the religious house had to seek the royal licence to evade the mortmain restrictions.2

The charters which the boroughs were now anxious to obtain might be expected to show traces of the canonistic ideas. They might be expected to answer for us the question at what point the borough became a true corporation. But for two reasons the question is not to be answered so easily. In the first place the words and the thoughts underlying the words are vague and defy interpretation. The corporateness of a borough possessing a charter dated from this period is not proved merely by the presence therein of words which in later times implied corporateness.3 Incorporation was a thing which the burgesses of this period neither wanted nor realised that they lacked. “Nobody, no body wanted it,” says Professor Maitland.1 They wanted to be assured of their privileges to trade, hold land, and the like, but they probably had no desire for, and small knowledge of, corporateness in the abstract. There was in the boroughs a strong indigenous stock of what one may perhaps call “concrete corporateness,” upon which the alien growth of abstract corporateness was afterwards quietly and successfully grafted. In the second place the charters of this period are not decisive as to the corporateness of the boroughs, because at this point the confusion between borough and gild can no longer be ignored.

Although closely connected and frequently identified, gild and borough were distinct. Of the many forms of gild the gild merchant now concerns us most. It is sufficiently important to require some preliminary remarks.

Trade in the Roman world was largely in the hands of collegia,2 but it seems probable that the English gild merchant was not the survival of any Roman institution.3 Whether it was of exclusively English origin,4 or whether it came from the Continent,5 it appears in England soon after the Conquest, if not earlier, as a widely-spread trade organisation. In those days the towns were the trading units. Commerce was municipal and intermunicipal.1 The gild merchant, along with the several craft-gilds, supervised the conditions of trade and labour. Thus were regulated processes and prices, materials and tools, working-hours and wages, the number of apprentices and the nature of their duties. Thus also were punished dishonest workmanship, the use of bad stuff, or the use of short weights and measures. Consequently the traders of the town were united in the protection and pursuance of their common trade interests. Just as men met as Christians for mutual comfort and spiritual benefit, so they met as members of a gild for mutual protection and earthly benefit. The gild excluded the alien: it fostered a strong but narrow municipal monopoly. It was consequently a valuable asset of the town, and one for which it was most important to obtain royal recognition. It was largely identified with the town, its members with the townsmen, its system of government with the municipal system of government. This considerable identity has interest for those who are inquiring at what moment the borough became a corporation. For out of this identity arose the theory that the grant of gilda mercatoria to a borough was a grant of corporateness.2 According to this view the gild merchant was the corporate realisation of the borough: the gild machinery was transferred to the borough: the gild-head became the town-head: the gild-alderman became the town-alderman, the gild-hall the town-hall.3 The supporters of this view point out that the important members of the gild were the same men as the important members of the borough:1 that the gild organisation supplanted the old borough moot,2 and therefore it was by way of the gild that the borough received from the Crown the privilege of incorporation.3

This theory, after having won wide acceptance,4 has been strenuously opposed by Mr. Gross.5 It must be admitted that in a few cases gild and borough may have become fused, and that in general the spirit and organisation of the gild-community may have affected the development of the borough-community. But if we find that both gild and borough are described by the word “communitas,” we must remember that that word was capable of both a refined and a natural meaning. It may well be that the gild-community was as concrete as the truly corporate borough-community is abstract.

No general inference can be drawn with safety from the history of any single town,—least of all from that of London. Apparently at Bristol and at Nottingham the hall of the gild existed side by side with the burghal moot-hall.6 If it were true to say that the importance of the burghal moot declined while that of the gild increased, it might still be untrue to say that the officials and governors of the gild became the officials and governors of the borough.

The fact that the liber burgus and the gilda mercatoria were occasionally granted separately seems to show that the two were regarded as distinct.1 The mayor and burgesses of Macclesfield, in answer to the Earl of Chester in the twenty-fourth of Edward III, claim (a) liber burgus, and (b) gild, not only as distinct things, but for distinct reasons.2

But although gild and borough were not identical, they were sufficiently similar to deceive Coke.

“Et fuit bien observe,” he reported, “que dauncient temps inhabitants ou Burgesses d’un ville ou Burgh fuerent incorporat quant le Roy graunt a eux daver Guildam Mercatoriam.”3

This dictum was faithfully followed in 1705 by Holt, C. J., in the case of the Mayor of Winton v. Wilks. The defendant was accused of having carried on a trade without being a member of the gild-merchant. “The Court was moved in arrest of judgment, and the Judges observed that when in ancient times the king granted to the inhabitants of a villa or borough to have Gildam Mercatoriam, they were by that incorporated, but what it signified in this declaration nobody knew.”4

This opinion of Coke appears untenable. To suppose that the possession of any one of the incidents of corporateness necessarily implied the existence of a corporation is inaccurate. A similar error was cherished with regard to the possession of a Firma Burgi.5 The possession of this, one of the franchises of a fully incorporated borough, was from the time of Edward IV considered to imply municipal incorporation. The rights of having a mayor, of being toll-free, and of using a corporate name,6 appear in like manner to have been considered to imply the legal incorporation of a borough, although in fact the possession of such rights might leave a borough still far from true corporateness.

The existence of burghal privileges and burghal property raised the question in whom such privileges and property vested. Gradually men had ceased in this connection to speak of the “burgesses and their heirs,” and spoke rather of the “burgesses and their successors.”1 In many towns there was a steady municipal income derived from various sources.2 It was something to be able to distribute this, and perhaps to share in the distribution. It was something to be a burgess. In consequence citizenship became restricted. Mere geographical connection with the community was not necessarily a sufficient qualification. A town would contain many men who were not freemen of it. The freedom of a city was heritable, though not strictly hereditary, because a man and his son might both be freemen simultaneously.3 Freedom was most usually obtained by transmission from father to eldest son or from a master to his apprentice: in other words, in these two cases less restrictions, and perhaps less entrance-fees, were imposed upon the aspirant to citizenship.4

To restrict the numbers and to close up the ranks of the burgesses was to knit them together as members of an organisation now highly complex and ready for the new foreign theory of corporateness. Much of this effect is due to the influence of the gild. The gild-merchant may not have included all the burgesses, and may not have excluded all the non-burgesses, but it existed in order to work the common borough trade to the best common advantage. It may not have been the mainspring of burghal corporateness, it may not have provided the borough with a ready-made system of government, but it undoubtedly taught the borough some practical lessons. For the gild was the grand example of voluntary association.1 In an age when men were “drilled and regimented into communities in order that the State might be strong and the land might have peace,”2 it arose spontaneously3 and bound men together by ties of social, religious, and commercial support. The feudal system had supported the theory that all power and all right came from above, and was entrusted by God to Pope and Emperor, to be by them in turn transmitted down through a series of chosen agents. But men felt that they had power and rights within themselves, underived from such sources as these: this feeling, finding expression in the principle of voluntary association, triumphed over feudalism and theocratism.4

This form of voluntary association had one striking feature. The associates bound themselves by oath.5 The gildsman swore in a certain formula, promised to obey common rules and to support the gild,6 paid his entrance-fee and thus became a member. This method of making membership personal and basing it upon a definite ceremony, spread to the borough, where citizenship could no longer satisfactorily be defined according to the quantity of land held or the quality of the tenure.

The adoption of this ceremony and oath by the borough had considerable consequences. Any ill-dealing between fellow-freemen was a violation of that oath, which might be punished by the body of freemen or their representatives. It might or might not be breach of law: it was certainly breach of contract: it was treason to the community. Moreover the man who took an oath on entering the citizenship found himself resembling the monk who took vows on entering a religious house.1 This was one more power at work to bring the borough into line with the more technically corporate ecclesiastical body.

Artificial membership tended to make an artificial community. The time was coming when the English borough was fit to receive the Italian doctrine,—when its personality might be deemed a persona ficta.2

[1 ]This essay originally formed Chapter IX, pp. 128-149, of the Yorke Prize Essay (Cambridge University) for 1902, “The General Principles of the Law of Corporations,” 1905 (Cambridge, University Press), and has been revised by the author for this Collection.

[2 ]B. A., 1900, LL. B., 1901, M. A., 1904, LL. M., 1907, Trinity College, Cambridge; Barrister of the Inner Temple, 1902.

Other Publications: “Collective Ownership otherwise than by Corporations or by means of the Trust” (being the Yorke Prize Essay for the year 1905), 1907 (Cambridge, University Press), of which compare Chapter VIII on “Communities as Owners.”

[1 ]Chapter IV of this Essay. See Professor Maitland’s articles in L. Q. R., XVI, p. 335, XVII, p. 131.

[2 ]Hist. of Boroughs, Introd. p. v.

[1 ]Gild Merchant, I, 93: Bibliography of Municipal History, Introd. p. xxvii. See Stubbs, Const. History, III, p. 586, and, in the French edition thereof, by Prof. Petit-Dutaillis, the Editor’s Appendix VIII: Maitland, Township and Borough, pp. 18-20.

[2 ]See Township and Borough, Maitland, p. 12. See also Pollock and Maitland, History of English Law, I, pp. 494-5. See, generally, Maitland’s Introduction to Cambridge Borough Charters.

See Gross, Gild Merchant, I, p. 93, n. 3. Communitas perpetua, communitas perpetua et corporata, corpus corporatum et politicum, are expressions used in the charters.

[3 ]These privileges are given by extant fourteenth century charters.

[4 ]Ancient Law, ed. 6, p. 184, where it is said that the family was a corporation and the patriarch its public officer. See Maitland, Township and Borough, p. 21. In its most developed form the family was nothing more than a “herrschaftliche Verband,” see Gierke, Genossensschaftsrecht, I, p. 90. See Tacitus, Germ. c. 20.

[1 ]Unpublished paper by Toulmin Smith, inserted in Miss Toulmin Smith’s Introduction to Early English Text Society’s volume on English Gilds.

[2 ]See the summary of the controversy contained in Sir F. Pollock’s Land Laws (English Citizen Series), Appendix C; and Professor Petit-Dutaillis’ Appendix I on Les Origines du Manoir in his edition of Stubbs, I, p. 765.

[3 ]Domesday Book and Beyond, p. 356.

[1 ]Domesday Book and Beyond, pp. 351-2: and see Bookland and the Landbook, pp. 226, etc. in the same vol.

[1 ]See Pollock and Maitland, History of English Law, I, pp. 534, 556. For the ordinance of the holding of the Hundred see Kemble, Saxons in England, I, pp. 515-6.

[2 ]See Pollock and Maitland, ib. I, pp. 535, 557-8. And see Domesday Book and Beyond, Maitland, p. 355, n. 2.

[3 ]See Pollock and Maitland, History of English Law, I, pp. 535, 673-4.

[4 ]See ib. I, 535, n. 1.

[5 ]See Pasch. 17 Edw. II. f. 539 (Maynard). The county is still indictable as such. Its lands are vested in a county official, the clerk of the peace, who is by 27 Eliz. c. 13, a corporation sole. See 21 & 22 Vic. 92. See Pollock and Maitland, History of English Law, I, 535, n. 3.

[1 ]Russell v. the Men of Devon, 2 T. R. at p. 672.

[2 ]See Domesday Book and Beyond, Maitland, p. 184.

[3 ]No distinction is here made between the words “burh,” “bury,” “burg” and “borough.” “The word ‘borough’ signifies security with the collateral idea of defence. It is no other than the word ‘bury.’ The word ‘bury’ signifies a fort or stronghold, and is to the English language what Arx was to the Latin, or Polis (in its archaic use equivalent to ἄκρον ἀκρόπολις) was to the Greek.” Bath Ancient and Modern, Prof. Earle, pp. 84 and 6-7.

[1 ]A reminiscence of the borough-peace perhaps survives in the word “burglary” and in its early definitions.

[2 ]The greatest of all peaces is the king’s peace, which the Justices of the Peace locally maintain. See 1 Edw. III. st. 2, c. 16.

[3 ]See Township and Borough, Maitland, p. 211.

[4 ]As for instance at Cambridge; two castles were found necessary to dominate Durham. See Freeman’s William the Conqueror, p. 117.

[1 ]Probably the distinction of the borough is to be traced still earlier. See the laws of Edgar (959-975 ad), Supp., cc. 3, 4, 5, and 6. Ethelred (978-1016) 11, c. 6. Canute (1016-1035) Secular Dooms c. 18. See Stubbs, Select Charters, pp. 70-2.

[2 ]The city cannot be marked off from other towns on any very clear principle. Civitas is often—but not necessarily—the cathedral town. See Pollock and Maitland, History of English Law,i. p. 634.

[3 ]Jan. 20, 1265.

[4 ]See Stubbs, Const. Hist. v. 2, pp. 92, 221: Todd, Parl. Govt. (ed. Walpole), (i. 23-4).

[1 ]See Domesday Book and Beyond, Maitland, p. 179.

[2 ]See Township and Borough, Maitland, p. 45; Domesday Book and Beyond, p. 203.

[3 ]Township and Borough, p. 71.

[4 ]For burgage tenure see Domesday Book and Beyond, p. 196: Township and Borough, p. 71: Pollock and Maitland, History of English Law, I, 295-6, II, 330.

[5 ]The borough Courts successfully contested the jurisdiction of the ecclesiastical judges in the matter of these bequests. See O. W. Holmes, Law Quarterly Review, I, p. 165.

The borough Courts claimed to dispense with the foreign procedure of wager of battle (Social England, I, p. 363), but were not at first allowed the method of trial by jury. See Pollock and Maitland, History of English Law, I, p. 643.

[1 ]For these burghal privileges see Pollock and Maitland, ib. i. pp. 643, etc. They are there enumerated as (i) Jurisdictional, (ii) Tenurial, (iii) Mercantile, (iv) the Firma Burgi, (v) Property of the Borough, (vi) Election of Officers and Government of the Borough, (vii) By-laws and Self-Government, (viii) Self-taxing Powers, (ix) Gild Merchant. The privilege of minting money was early resumed exclusively into royal hands.

[2 ]The following is a specimen of such royal confirmations. It is given by Henry II. to Winchester:

“Praecipio quod cives mei Wintoniensis de gilda mercatorum cum omnibus rebus suis sint quieti de omni thelonio, passagio et consuetudine; et nullus super eos disturbet neque injuriam neque contumeliam eis faciat super forisfacturam meam . . .” Stubbs, Select Charters, p. 158. This charter appears to be common form. The citizens of Bath are by their charter given the advantages held by “cives nostri Winton de gilda eorum mercatoria”: Guildford also “prout cives civitatis Wintonie et aliarum civitatum et burgorum”: similarly Petersfield and Wilton. See Gross, ii. 351, 375, 387, 390.

It will have been observed that this Winchester grant is not made to the citizens, not to the “communitas” or “communa,” but to those citizens who comprise the “gilda mercatoria.” The earliest grants of such royal confirmation, or—to use the word in its vaguest sense—of incorporation, are to gilds as well as boroughs. The relation of gild to borough and the influence of the one upon the other will be discussed later. For the present it is enough that they were not identical, though they might be very closely interwoven in towns where the same men were prominent members of each, and where the mercantile element predominated in municipal affairs.

[1 ]For the venality of the royal prerogative in the time of Richard I see Stubbs, Select Charters, p. 256.

[2 ]An obvious exception to the modern supremacy of the majority is the requirement of unanimity in a jury. For the history upon this point see Pollock and Maitland, History of English Low,ii. pp. 625-7.

[1 ]See Pollock and Maitland, ib. I, p. 509: Township and Borough, Maitland, pp. 34-5: Political Theories of the Middle Ages,vii., and Prof. Maitland’s notes, pp. 166-7 (in square brackets).

[2 ]See Gierke, Genossensschaftsrecht, II, 478, III, 322, etc.

[3 ]See Pollock and Maitland, History of English Law,i. pp. 683-4.

[4 ]The corporate name, says Blackstone, is the very being of the constitution of the body, the knot of its combination, without which it could not perform its corporate functions. Comm.i. 474-5.

[5 ]Sometimes these corporate names were so cumbrous as to need abridgment by subsequent charter. See the charter of the Merchants Adventurers for Discovery of New Trades, 1566: “Whereas . . . the Fellowship’s name is long and consisteth of many words.”

[1 ]For instance, if the village acts as farmer. See Villainage in England, Vinogradoff, pp. 356, 360: Madox, Firma Burgi, 54 f, 54 g.

[2 ]Ed. Maitland, II Selden Society, p. 150. Vinogradoff, pp. 358-9.

[3 ]Liber Assisarum, 62, 19 Edw. III. See the valuable list of references in Gross, i. 93, n. 3.

[4 ]See Liber Assisarum, 321, 49 Edw. III; “La City est perpetuel.”

[1 ]1391. 15 Ric. II, c. 5.

[2 ]Many towns applied for such charters to hold land. The following is a specimen:—Rex omnibus ad quos etc. salutem. Licet etc. de gracia tamen nostra speciali et pro xx libris nobis solutis in hanaperio nostro concessimus et licentiam dedimus . . . J. S. et W. H., Senescallis gilde mercatorie de Bruggewater et communitati ejusdem ville quod ipsi x mesuagia V acras terre iii acras prati . . . dare possint et assignare cuidam Capellano divina in ecclesia beate Marie de Bruggenwater singulis diebus celebraturo imperpetuum, habenda et tenenda sibi et successoribus suis in auxilium sustentacionis sue imperpetuum . . . (1392) Gross, II. 353.

[3 ]For example here follows a charter of Edward III to Coventry (20th day of January, 1345):—

“Dictis hominibus de Couentre tenentibus dicti Manerii quod ipsi et eorum heredes et successores communitatem inter se decetero habeant et Majorem et Ballivos idoneos eligere et creare possint annuatim.” Record Office, Charter Roll, 18 Edward III, m. 1.

Again, the same king grants three years later to the burgesses of Hedon, “quod iidem Burgenses et eorum heredes et successores communitatem inter se habeant,” etc. as before (Gross, i. 93 and ii. 107).

What is conveyed by the language of these charters? Are we to say that the word “communitatem” by some magic of its own confers corporateness upon these two towns? Or are we to say that the word meant nothing more than the acknowledgement of common trading interests, of collective ownership of property, and of a certain degree of autonomy? Would it not be true to say that the thought of true corporateness, if it has been conceived yet, has not yet been applied to the municipal group?

[1 ]Township and Borough, p. 20.

[2 ]Of some forty-four kinds of trading associations known to have existed in Imperial Rome, only one (the smiths) is mentioned on inscriptions found in England. See Bath, Ancient and Modern, Earle, p. 30.

[3 ]According to Scrutton (Influence of Roman Law on the Law of England, p. 55), the birth-place of the gilds is England, and possibly London. Although this statement would probably not find universal acceptance, it is at least improbable that the gilds are a Roman survival. See City Guilds Commissioners’ Report (1884), p. 8. For the two views, see Coote, The Romans of Britain, on the one hand, and Stubbs, Const. Hist., p. 105 on the other.

[4 ]On the subject of the Gild merchant see the two volumes of Dr. Gross. See also Two Thousand Years of Gild Life, Lambert.

[5 ]See Gross, i. pp. 169-70.

[1 ]See Social England, ed. Traill, i. p. 467. For example, there was a recognised practice of intermunicipal reprisals. When the king freed burgesses of X from toll throughout the realm, he allowed them to make reprisals against men of Y taking toll of a man of X. These reprisals suggest the idea that a trader was a member of a body answerable for trade acts of other members. In the trade community there was a rough kind of several guarantee by members of a member’s debt. The community was in no way a “juristic person.” It did not sue, and was not sued, by a common name as would be the practice in the case of the Cives de X or the Burgesses de Y. See Select Pleas in Manorial Courts, ed. Maitland, vol. 2, Seld. Soc., pp. 134-5; Gierke, das deutsche Genossenschaftsrecht, II. pp. 388-9.

[2 ]Merewether and Stephens in combating this view attribute it to Brady, see History of Boroughs, p. 118.

[3 ]See for instance the Early English Text Society’s volume on English Gilds, p. 250. For the part played in this controversy by the word ‘alderman,’ see Madox, Firma Burgi. 30, and the discussion in Gross.

[1 ]See Early English Text Society’s English Gilds, p. 329.

[2 ]Of course gildsmen and burgesses were in the mass identical. The description of Chaucer’s Pilgrims may be recalled, though the language be untechnical:

• “An haberdasher and a Carpenter
• A webbe, A Dyere and a Tapiser,
• Were with us eek clothed in o liveree
• Of a solemn and greet fraternitee . . .
• Wel semed ech of them a fair burgeys
• To sitten in a gild-halle, on the deys:
• Everich, for the wisdom that he can,
• Was shapelich for to been an alderman.”

(Prologue to Canterbury Tales, 11. 362-372). To ask if a man were a gildsman or a burgess would be as unsatisfactory as to ask if he were a father or a son.

[3 ]See Gierke, Genossenschaftsrecht, I, pp. 243-4, 345.

[4 ]See ib. I, ss. 27 and 37. Social England, II, 407.

[5 ]Gild Merchant,i. p. 80.

[6 ]See Gross, I, p. 82, n. 3.

[1 ]See the grant to Newton (South Wales). Gross, II, pp. 385-6.

[2 ]See Gross, II, p. 171.

[3 ]Coke, 10 Rep. 30. And see 1 Roll Ab. 513: cited in Blackst. Comm.i. 474. See also Cokenage v. Large, Madox, Firma Burgi, 197.

[4 ]Kyd, Corporations, I, p. 64. See Gross, II, p. 269.

[5 ]See Kyd, ib. I, p. 43.

[6 ]In Norris and Trussell, etc. v. Staps (Pasch. 14 Jac. Rot. 907), it is said: “I am of opinion that they (the guardians, etc. of Newbury) needed not to show how they were incorporated, for the name argues a corporation, as the like of cities.” Hobart, 210. See Arundel’s case, ib. p. 64. For plea of corporation without shewing the creation of it, see 9 Edw. III, 19.

[1 ]See Gross, Gild Merchant, I, 95.

[2 ]See Maitland, Township and Borough, Appendix, ss. 145 and 148.

[3 ]See Pollock and Maitland, History of English Law, I, 671. Freedom of boroughs was a matter of custom. See R. v. Salway, 9 B. & C. 424. It has suffered from the Municipal Corporations Acts. See 45, 46 Vict. c. 50, s. 202.

[4 ]According to the Report of the Municipal Corporations Commission (1835) freedom was obtainable by (a) birth, (b) apprenticeship, (c) gift, (d) purchase, and (e) marriage. See the Report, p. 2016. See also Gierke, Genossenschaftsrecht, I, s. 57. What is important for our purpose now is to notice that the citizenship was restricted, was valuable to the claimant, and was a source of profit to the body of citizens by means of a system of entrance-fees. Citizen-bodies which had paid considerable sums to obtain from the king recognition of their municipal franchises, naturally considered that a new-comer to the citizenship should make to them some payment on his accession to privileges for which they had themselves been put to expense.

[1 ]See Gierke, Genossenschaftsrecht, I, ss. 26-7, die freie Einung.

[2 ]Pollock and Maitland, History of English Law, I, p. 688.

[3 ]The origin of the gild-system is variously attributed to heathen and to Christian institutions. Wilda attributes it to the fusion of heathen practices of sacrifice and feasting with the Christian idea of brotherly love: others to Scandinavian associations for mutual revenge, others to more natural associations for mutual support. See Gierke, Genossenschaftsrecht, I, p. 222, where see references in n. 1.

[4 ]See Gierke, ib. I, pp. 155, 220: Althusius, pt. I, c. 2, etc.

[5 ]The binding by oath seems to have been distasteful to monarchs on the continent. The Capitularium of Charlemagne contains the ordinance “de sacrament per gildonia invicem conjurantibus ut nemo facere praesumat” (779 ad). See Gierke, ib. 1, p. 224, n. 2: p. 236, n. 57.

[6 ]In the Cambridge gild, for instance, a man swore to hold “true brotherhood for God and all the world and all the brotherhood, to support him that hath the best right,” to avenge his comrades in the gildship if an outlaw failed to discharge his boot, and agreed to pay out of the gild funds the wer due from a comrade in a case of emendable homicide. The principle of “Let all bear it, if one misdo” thus provided a rough system of insurance. See Kemble, Saxons in England, I, pp. 513-14. Gierke, Genossenschaftsrecht, I, pp. 230-1.

[1 ]See Pollock and Maitland, History of English Law, I, p. 671.

[2 ]Y. B. Hen. VI, 9, in reference to “le Commonalty et les Baill. de Ipswich,” says “ils son per cest nom un person corporate et un entier corps.” The authority for saying that English law holds the “Fiction theory” of corporateness is usually found in the following sentence from Coke’s Report of the Sutton’s Hospital Case (10 Rep. 32 b):—“The corporation is only in abstracto, and rests only in intendment and consideration of the law: it is invisible and immortal.” For other theories of corporateness see the following chapters of this Essay; see also especially Professor Freund’s Legal Nature of Corporations, pp. 40-83.