The Foundations of Sovereignty (Works of Harold J. Laski)

And Other Essays

Harold J. Laski

• Publisher: Taylor & Francis
• Year: 2014
• Print ISBN: 9781138822924
• eBook ISBN: 9781317586821
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Communism, Post-Communism & Socialism
• Index: Politics & International Relations

This influential study, originally published in 1921, develops aspects of Laski's theory of the state, ideas he introduced in his first important publication, Authority in the Modern State (1919). According to Laski, the state is not a supreme entity; it is one association among many that must compete for the people's loyalty and obedience.

The Early History of the Corporation in England*

DOI: 10.4324/9781315742670-5

* Reprinted from the Harvard Law Reviere, Vol. XXX, No. 6.

Ours is a time of deep question about the state.¹ Theories of corporate personality have challenged in decisive fashion its proud claim to preëminence.² Its character of uniqueness seems hardly to have survived the acid test of skeptical inquiry. The groups it has claimed to control seem, often enough, to lead a life no less full and splendid than its own. The loyalty they can command, the fear they may inspire, are near enough to its own to seek comparison with it. Yet dogmas that are none the less fundamental because they are hardly old still haunt our speculations. It is barely a century and a half since Blackstone asserted in his emphatic fashion the right of the state to condition and control all corporate existence.³ Less than three centuries have elapsed since a civil war shocked the timid Hobbes⁴ into a repetition of Richard of Devizes’ anger at the danger of group-persons.⁵ We perhaps too little realize that a long history lies behind Blackstone’s incisive sentences; nor is the contemptuous phrasing of Hobbes an accurate index to the English attitude. For, as Maitland has pointed out,⁶ few countries have enjoyed a richer variety of group-life. Yet we have hardly come to ask the fundamental questions that richness suggests. A history of English state theory has still to be written.⁷ We have still to work out in detail the lines of their thought as to its juridical nature and of its relation to those groups of which they were so dramatically prodigal. Englishmen are a practical race, and they had discovered the benefits of fellowship long before they speculated upon their nature. Orcy of Dorsetshire had built for his brethren a gild-house long before the stern hand of the Norman conquerer had begun to effect the centralization of law;⁸ and the benefits of meat and drink in goodly fellowship were not unknown in Anglo-Saxon Cambridge.⁹

1 Cf. Barker, English Political Thought from Herbert Spencer to To-day, 175 ff., and Burns, The Morality of Nations, passim. 2 Cf. E. Barker in the Political Quarterly for February, 1916; Figgis, Churches in the Modern State, and Saleilles, De la Personnalité Juridique, 41, 856, 364, 463–64, 633, 619. 3 1 Comm. 472. 4 Leviathan, Bk. II, Ch. 29. For his timidity, cf. Croom Robertson’s Life. 52. 5 Richard of Devizes’ Chronicle, 416. Cf. I Stubbs, Constit. Hist.,,6 ed., 455. 6 Cf. Maitland’s Introduction to Gierke, Political Theories of the Middle Age, XXXVI. 7 Though Maitland has indicated the lines on which such a history should be written. 3 Coll. Papers, 210–70. 8 Codex Dip. (ed. Kemble), No. 1942. 9 1 Kemble, Saxons in Eng., 513. On the Anglo-Saxon gilds generally, see 1 Gross, Gild Merchant, 174–91. Gneist has warned us against overestimating their impor ince. 1 Verwalt. 189.

But where men meet to eat and drink and, mayhap, to pray, the subtleties involved in corporate existence hardly seem to emerge. Communitas, it is true enough, is the key to early English history; but it is a dangerous and ambiguous word. “It swallows up,” as Maitland has happily remarked,¹⁰ “both the corporation and the group of coöwners.” That, iijdeed, is intelligible enough; for in the nineteenth century a great Lord Chancellor could still be puzzled about the nature of corporate ownership.¹¹ The abstractions of early jurisprudence are post-conquestual in origin; and we may even doubt whether the early communalism which has so much affected the economic speculation of our time is not in fact more truly individualist than we care to admit.¹² We dare not base our speculations upon the evidence anterior to the time when the iron hand of Norman William fashioned a conquered kingdom to his own desire. Of corporateness we shall speak with some skepticism, though we shall recognize that its roots are there. For the court rolls from which our main knowledge of internal organization is drawn date only from the end of the thirteenth century; the records of the King’s Court are continuous only after the twelfth. Our earlier knowledge is rather of fields and farming methods, of taxation and military service, than of judicial or political unification. And where there is so dangerous an economy of words, our footsteps must needs go slowly.

10 Township and Borough, 12. 11 Cf. Eldon, L. C., in Lloyd v. Loaring, 6 Ves. 773, 776–77 (1802). 12 Cf. Maitland, Domesday Book and, Beyond, 342 ff. On the other hand Professor Vinogradoff stands by the older conception. Growth of the Manor, 18 ff., 150.

II

Yet some sort of guesswork we may adventure. If corporateness be held in the balance the basis of it may at any rate be discovered. The theory of possession — the later turning point in corporate history — here helps us but little. It is to men that the land belongs. Our Anglo-Saxon village is full of freeholders.¹³ The men who drew up Domesday Book were not very certain whether St. Peter owns his church, or the priest who cares for it.¹⁴ The church will indeed hold land; and we may perhaps see therein a significant effort after a natural personification. Yet we shall put our trust in the mysticism of a superstitious time rather than the advanced ideas of an inquiring jurisprudence.¹⁵ The land of England, of a certainty, is the king’s, for William knew too well the dangers of continental feudalism to submit himself to its conflicts of allegiance.¹⁶ It is evidence enough that a corporate kingdom is not yet attained, for William at least is stout flesh and blood, and what he calls his own he uses for his purposes.¹⁷

13 This is of course the whole point of the second essay in Maitland, Domesday Book and Beyond. Cf. especially pp. 818 ff. It is interesting to note the kindred ideas of continental historians. Cf. especially 2 Flach, Les Origines de l’Ancienne France, 45, and Dargun, Ursprung des Eigenthums 5 Zeitschrift für Vergleichende Rechtswissenschaft, 55 14 IPollock & Maitland, 2 ed., 498–600. 15 Cf. 3 Gierke, Deutsche Genossenschaftsrecht, 195. 16 1 Stubbs, Constit. Hist., 6 ed., 290. 17 Cf. 3 Maitland, Coll. Papers, 246. “All lands were his lands, and we must be careful not to read a trusteeship for the nation into our medieval documents.”

‘Yet a certain attempt at noteworthy unification we deem not wanting. England is divided into townships; and we shall exaggerate the automatism of medieval life if we believe that its affairs went of themselves. A township court it seems clear that we must have.¹⁸ That court will pass by-laws,¹⁹ and, if need be, enforce them.²⁰ There was joint liability in taxation,²¹ for the separate collection of geld from each individual was a task no administration could then have undertaken.²² The village will grow and divide into parts;²³ surely the fact of division connotes the recognition of significant difference. The village is a police unit, and it will sometimes struggle against a forcible extinction.²⁴ It is of real importance that our great geld-book should write of local duties and local privileges in township terms.²⁵ The vill that farms its own dues has a healthy sense of its own individuality;²⁶ and the men who could hold and sell their land “communiter” we may not easily pass by.²⁷ Nor dare we minimize a waste land which, however vaguely, is yet the possession of the community.²⁸

18 Cf. Vinogradoff, Growth of the Manor. 194. 19 Cf. Northumberland Assize Roll (Surtees Soc., vol. 88), 45. 20 Cf. M...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Title Page 01
• Frontmatter Page
• Dedication
• Preface
• Table of Contents
• The Foundations of Sovereignty
• The Problem of Administrative Areas
• The Responsibility of the State in England
• The Personality of Associations
• The Early History of the Corporation in England
• The Theory of Popular Sovereignty
• The Pluralistic State
• The Basis of Vicarious Liability
• The Political Ideas of James I