CHAPTER V. COLLEGIA AND CORPORATE CAPACITY

We have now to go right back to the beginning of the story, and trace the gradual growth of corporate capacity. In the Republic, it is a story with hardly any dates, few facts, and no clear thinking: under the Empire we find a few enactments and statements of law, a number of inscriptions, and an occasional unsustained vision of what corporate character really is and implies.

It is only the private colleges that we have to deal with here, the collegia opificum,¹ cultorum and tenuiorum, and the publicani. For any property held by the magistrates, the priests, or the official sodalitates, was no doubt owned by the State. It will seldom, if ever, be necessary to dis­tinguish between the different types of college, for they were all treated alike by the private law, so far as we can tell.

Very little is known about the status of colleges under the early private law. But one thing is certain; the Republican lawyers did not get beyond the first rudiments of that very abstract and artificial conception, corporate Personality. Very gradually and cautiously they admitted that a college could in law do things it had long been doing in practice; but it is not till Gaius that we find any idea of capacity as an aggregate of rights, and even he only includes the two most fundamental, to own and to sue. All comparisons between corporations and individuals are quite incidental. The classical jurists recognise, though they sometimes forget, that the assets and liabilities of a corporation are not those of its members, and very few ¹ Including the decuriae apparitorum.

130 of the practical rights which can be exercised by a juristic Person were in fact always denied.

In respect of colleges as in others the law no doubt followed some distance behind the facts; and we must try, very cautiously and with no confidence in many of our steps, to see or to guess what those facts were. Colleges existed from very early times,¹ and there is no respectable evidence for several centuries, so that our guesses may be rather in the air. But it is possible, even if sometimes dangerous, to make some deductions from what we know of the Romans and their colleges in later days.

The first patrimonial transaction or negotium engaged in by any college must have been the receipt of subscrip­tions from its members or an endowment. Colleges may long have existed without subscriptions; they could meet in each other’s houses and the host could provide the refreshments almost inseparable from club meetings; and it is not likely that they had minute-books, which are the only property of many societies to-day. But no college entered, even potentially, into the sphere of private law, till the day when some property—money, or sheep, or a house, or perhaps a tomb—was set apart either by the members or by some rich benefactor or by the State, for the use and service of the college. It is likely that the first such day came to a sodalitas sacra endowed by the State with money to buy victims, or a temple to offer them in; but the private colleges probably did not lag far behind. Such endowment was no doubt popularly regarded and ¹ See p. 103, supra.

COLLEGIA kfiD CORPORATE CAPACITY 131 spoken of as belonging ‘to the college’, or ‘to the members of the college’—nobody would in that age dis­tinguish between the two.

It is tempting to ask whether the donor’s creditors would be entitled to the property, to satisfy unpaid debts. That seems to modern minds a good test of ownership. But the question presupposes a state of things that did not exist in early Rome. No creditors, till near the end of the Republic, had any rights against any debtor’s property; himself they could imprison, enslave, or kill, but his goods they could only touch by his leave and licence. Few people would play Mr Pickwick with their lives at stake, and no doubt practically all debtors gave up all their property before allowing themselves to be seized. But before Rutilius there could never be an actual suit for execution against property in the possession of a college by the ¹ D. 47. 22. 4.   ² See p.

132 creditors of an insolvent benefactor; and if a donor could not reclaim his gift at will, presumably he could not do so under pressure from his creditors.

It seems clear that a donor’s creditors could not proceed against a college, and it is not likely that they often wanted to. Any considerable endowment would presumably come from a fairly rich man; and the whole tendency of early Roman law was to make the rich richer and the poor poorer. It is possible that some unfortunates suffered manus iniectio and its terrible consequences while the colleges they had enriched prospered undisturbed; possible too that some prosperous colleges were ruined because their benefactors succeeded in withdrawing their gifts to appease their creditors; but the impoverished benefactor is not likely to have been a common figure.

’ Cf. D. 50. 1. 19: ^l^od motor pars curiae effect t, pro eo habetur, ac si omnes egerint'; D. 50. 17. 160. 1: '‘Refertur ad universes, quod publice fit per maiorem partem? Corporations may be older than the Republic, but so are majority decisions: the judges on Achilles’ shield (Iliad, 18.

This stage was never passed by the official colleges. Any funds or property they might hold, whether it was directly given them from the aerarium, or acquired in the exercise of their office, as the sacramentum by the pontiffs, remained the property of the populus. And the populus could never be subject to any but religious restraints in directing the use of its delegated property or even resuming it. Much of this property belonged in name to the gods, but, as Mommsen says/ it was only a kind of peculium. No college of magistrates or priests or official worshippers or the like was ever a subject of the private law.

But the private colleges whose destiny it was to become Persons had still a long way to go, and the next step in their journey? was probably a hazy recognition that what a man had given to a college was no longer his. Now to a modern or even a classical lawyer the statement that the property was no longer the giver’s must inevitably raise the question ‘Whose was it?’ But we must beware of putting answers to this question in the mouths of early

1       So Gaius now seems to have said: Frammenti di Gaio, Arangio-Ruiz, 1933, col.

2       There is some evidence for majority decisions under Justinian. See Buckland and McNair, Roman Law and Common Law, 1936, p. 83; citing Riccobono, Essays in Legal History, ed. Vinogradoff, Oxford, I9i3,pp.mf.

3       I know of no clear and direct evidence that private collegia decided by majority votes. Inscriptions naturally record unanimity, not disagree­ments, and the suffragia of which we hear (Waltzing, vol. iv, pp. 312 f.) may refer only to elections. But it is hard to suppose all votes were unanimous. For majority votes of monks and clergy see pp. 180 f., infra.

4       Gesammelte Schriften, vol. in, p. 63. Cf. Wenger, Zum Cippus Abellanus, 1915, pp. 31-9.

5       The Bacchanals were probably about this stage with their pecunia comoinis in 186 b.c.

134 PERSONALITY IN ROMAN PRIVATE LAW

lawyers. It is highly improbable that they ever asked, or were asked, the question. If they had been, they would probably have said ‘ The college’s’, but broken down under a cross-examination no one was qualified to apply, and admitted that they did not really know whose it was, and that, though not in any ordinary sense a res nullius and certainly not subject to occupatio, it did not seem to have any particular owner. They would have been driven to admit that a college could not bring or defend an action, and could therefore hardly be said to own, even if owner­ship was not limited as such to personae, natural persons; and they must apparently have said it belonged either to the members as common owners,¹ or to the magister collegii.

Now it was said above that a college could not bring or defend an action, and this, as Mommsen pointed out in his T)e Collegiis, must be true on strict logical principles under the legis actio system. For there could be no repre­sentation in a legis actio·, and a college could not appear except by a representative. But in discussing early law, strict logic is to be avoided above all things; and it may be worth while to turn to analogy, a more instructive though perhaps equally dangerous guide. We may find an analogy to these half-developed colleges in the English monasteries of the Year Books,² and the language of the Reporters is very interesting. To quote only one or two Books, in 20 and 21 Edward I Abbots and Priors are constantly in the courts alleging not only their personal rights as Abbot, the presentation to livings and so on, but also the proprietary rights of their convent; and in no case is there any reference to the convent, any suggestion that the property does not belong absolutely to the Abbot. By 20 Edward III doubts are creeping in. The Abbot still sues in his own name3 but he sometimes gets the consent of the monks for his transactions;⁴ and at least

¹This would exclude the majority principle.

² For this analogy I have to thank Professor Buckland.

³ E.g. part II, pp. 90, 430 (Rolls Series). ⁴ E.g. p. 406. Cf. p. 368.

COLLEGIA AND CORPORATE CAPACITY *35 once he expressly ‘ counts the land his right, as of his church of S. of which he was parson’.¹ In another case,² a man sued the Prior of Watton on a deed which he said had been granted by the Prior, whereas in fact it was granted by the Prior and Convent. Exception was taken to the variance, and it was not allowed. This shows, not that the Prior could not himself make a grant, but that he could associate the convent with himself. Thus in another case of the same year3 it is stated that Edward I gave a manor to the Prior and Convent of Westminster; but the writ is brought in the name of the Prior alone. Even as late as 21 Hen. VII, p. 7,⁴ we find Yaxley holding that a licence to an Abbey and Convent to make a feoffment is void ‘quant al’ Covent’, ‘pur ceo que ils ne sont forsque mortes personnes en Ley, et n’ont ascun capacite de ce faire, come un Dean et Chapiter ont’. Hence the Abbot should, with the consent of the Convent, make the feoffment ‘ in droit del’ Meason’. Frowick and Vavisor, however, decided that the feoffment should have been made with the Convent seal.

The detailed historical development in English law does not concern us; but these passages show that it is quite possible for a juristic Person to assert its rights in court by allowing an individual to assert them as his own.5 This may not have happened at Rome; but it seems at least possible that it did. If so, a college would be able to appear in court in the person of its magister, who would speak of the college property as his, either without quali­fication or in right of the college. Thus all difficulty about taking part in a legis actio disappears, and we may put the first appearance of colleges before the praetor, consul, or King, as long before the lex Aebutia and as soon after Numa as we feel inclined. The magister appears to the outer world as the owner of college property, like the trustees of an English club. If he treats it in practice ¹ P. 58.                               ² P. 560.                 3 p. ₃₄₄.                  4 Ed. 1679.

5 For Byzantine and Egyptian parallels, see pp. 180, 192, infra.

I36 as his own, the members can enforce the pactiones of D. 47. 22. 4 and the Twelve Tables. The only difficulty occurs when the magister fails to pay his private debts, and makes over his property to his creditors. If the club funds belonged to him, they should now pass to the creditors, but this is clearly unsatisfactory. Equity must step in; and the praetor’s imperium gives him quite as strong a position as the English Chancellor’s for enforcing his views of justice when law and iurisdictio break down.

This system probably worked fairly well if, which is far from certain, it was ever wanted. But the Romans never gloried in discords between law and fact, and the spectacle of a man vindicating property which did not in any ordinary sense belong to him must, if they noticed it, have jarred on their sense of legal propriety. The way out was offered by the lex Aebutia. Once the formulary system was established and representation allowed, there was nothing to prevent a college’s appointing an actor ‘ad exemplum rei publicae' f and bringing an action. Of course it could not do so if the praetor refused to recognise its actor as a duly appointed agent; and this recognition may have been sparingly given. But there is no technical difficulty in law about a formula in the form: ‘si paret Numerium Negidium collegia fabrorum X milia dare oportere, iudex N. Negidium actori eorum Xmilia condemnato' ² Once it was recognised that a college could, like a town, appoint a legal representative by the publicistic machinery of a majority vote of the college or the committee (decuriones'), there was nothing in the rules of procedure to prevent its bringing any action that was tried per formulam or in which representation was allowed. And once a college can bring an action, it is capable of rights, and has, in however limited a measure, corporate capacity.

How many rights the colleges claimed at once, such as ownership, we cannot tell. But they must gradually have coveted and usurped all the rights that made up the ¹ D. 3. 4. 1. 1.         ² Cf. G. 4. 86. commercium inter vivos: the right to own, the right to acquire, the right to alienate; the right to bind themselves and others by contracts; the right to receive gifts, and the right to protect all these rights by the appropriate actions. How far this process went before the troubles of 64 b.c. is a question that no one can ever answer, and no guess can have enough basis to be profitable. We never hear of a Republican college engaged in a lawsuit, and that is the only time when its corporate character would be clear. There is a good deal of evidence that property, both move­able and immoveable,¹ was regarded as belonging to a college, but we can never be sure that it is corporate property any more than xhepecunia comoinis of the Bacchanals, which was nothing of the kind. So transactions purporting to be the work of a college may or may not be corporate.² All we know is that there was no great procedural obstacle between the colleges and capacity; we may reasonably guess that the employment of an actor was thought of less than 100 years after the lex Aebutia\ and we may please our fancy in imagining the conditions under which he may have been admitted to the courts, the rights he may have asserted there, and the consequences of a claim against the college by a bankrupt member’s creditors. But we must return from the interesting realms of speculation and conjecture to the comparatively solid world of the Empire and the Digest.

Thirty years ago most continental writers seem to have thought that, whatever the case may have been under the Republic, it was laid down in 7 b.c. by the lex lulia de Collegiis that every college which received permission to exist was automatically endowed with all the rights and duties which were conveyed to these writers’ minds by the phrases ‘Privatrechts- und Handlungsfähigkeit’, and ‘personnalite civile, morale’, or ‘juridique’; except that

¹               Cf. C.I.L. vi. 9144, ¹ Locum sepulchral) conlegio anulario dedit'.

²               Cf. C.I.L. x. 378,1, ^lLoc(iim) privat(um) de stipe Dian(ae) emendum [et f faciendum coeraver[e]’. This is dated by the consuls of 99 b.c.

I38 there might have been some restrictions in respect of immoveables,¹ and that, for fear of powerful corporations or of the Dead Hand, the rights of testamenti factio and manumission were arbitrarily denied. Waltzing says in 1896: ‘Une fois pourvu de cette autorisation’ (of the Emperor or the Senate) ‘et reconnu par l’Etat, le collège devient une institution publique, un corps public (corpus). Or, tout corns public... re?oit avec 1’existence la per- sonnification civile’.^{[133] [134] [135]} So Saleilles, in a lecture delivered in 1907 but not published till 1909, says : ‘ Une association n’était licite que par l’autorisation ; mais, dès qu’elle était licite, elle était capable, elle avait la personnalité civile. C’était le tout ou rien.’3 The idea of the ‘corps public’ has been dealt with already under the guise of ‘utilité positive’5 There is no evidence for interference by the State in the affairs of colleges, except to control their birth, in or before the classical law; and to call a burial club of the Roman type a ‘corps public’ is an abuse of language. But we are now concerned with the other part of the belief—the view that every authorised college was given ‘personnalité civile’ by the lex lulia.

There is no need to argue here, important though it is, about the meaning of ‘personnalité civile’. No one can deny, though many forget, that the words express an idea which was never present to the mind of Trebatius or Labeo. All that could be bestowed on a college was not the unified aggregate now called ‘personnalité civile’ but a number of separate and independent rights.5 It is true that some rights naturally go together, and some imply others. It is hard to see how a college could have had any effective rights without the right to bring an action ; or to conceive a right to buy or sell without a right to own.

But testamentiJactio, the right to take under a will, was not bound up with any other rights. Hitherto the right to take inheritances and legacies had been strictly confined to Roman citizens; it was withheld from the Junian Latins who were created a few years before or after the lex lulia and given almost every other element of the commercium. A gift to a college might benefit Latins, peregrines, or even slaves.¹ We cannot tell whether any early lawyers considered a college ‘uncertain’, as Ulpian did towns. Of course the college itself as a corporation could be quite clearly present to the testator’s mind, but so could a town to Ulpian’s, and where Ulpian erred we cannot be sure Trebatius kept the path. The members, who keep getting between universitates and lawyers’ eyes, would be less incerti than in the case of a town, because there would be fewer of them; but such members as joined between the making of the will and acceptance of the gift would benefit, though uncertain, not to speak of all later members of the enriched college. Most probably the perverse notion that a corporate body is uncertain was merely a passing idea of Ulpian’s to explain a rule that seemed exceptional in his time but fitted perfectly both the legal principles and the political expedience of Augustus’ reign? It may have been a good enough argument to support a firmly estab­lished rule which no one proposed to change; but when colleges were winning fresh triumphs in the forum every day, their victorious rush needed something more con­vincing than this to stop it before the citadel of testamenti factio. Their claim could be resisted not because they were incertae -personae, members of a disqualified class, but because they were not personae at all but corpora, beings whose existence the law of property and obligations had recognised only with reluctance and the law of wills not at all.

¹               Slaves could be instituted, but their capacity was purely derivative; and their masters could not benefit by institutio collegii.

² When the name of Clodius still stank in respectable nostrils.

I4O PERSONALITY IN ROMAN PRIVATE LAW

The right of manumission, again, was by no means indispensable. It too was barred by a rule of form—that there could be no manumission through a representative. That this rule was maintained, seems at first sight a grave hardship on the slaves of colleges. But a college could always get its slaves freed, by transferring them to some individual with a fiducia to free. The real point of the rule was that colleges could not acquire patronal rights, the chief of which was a right of succession. It seemed inelegant, to use a characteristic word, for a college to appear as the successor or representative in this way of a ‘ -persona'; a Roman citizen could not be put into commis­sion, for the ’'persona ’ was more than a purely legal concept; a dead man lived again in the heir who carried on his sacra, and it seems, though we can hardly appreciate the Roman point of view, that to live again in a college was intolerable or inconceivable. This feeling fully explains why no college, or hardly any, was given either testamenti factio or the ius manumittendi till the sceptical age of the Antonines.

But even if we limit the meaning of ‘ personnalite civile’ to those rights of which colleges were at this time considered in the abstract capable, notably the right to have an actor and to own property, we still have to ask whether the lex lulia said anything about it, and whether this ‘Per­sonality’ and the ius coeundi were inseparable.

The lex lulia is soon disposed of. It is held to have regulated this point because the point must have been regulated somehow, and we know of no law dealing with colleges except the lex lulia. This unconvincing argument conceals a certain measure of truth. Though there is very little reason to suppose that corporate capacity was dealt with in the lex lulia, especially if it was not de collegiis but de vi, it is probable that when the colleges reappeared in the law under Augustus some attempt was made to define their position. The result of that attempt we do not know; for the rights claimed and exercised by colleges in

New Roman">COLLEGIA AND CORPORATE CAPACITY I4I the first century of the new era we have only the precarious and usually undated evidence of inscriptions.

Those writers who believe, and those who deny, that every college authorised under Augustus’ rules received ipso iure at least some kind of corporate capacity, alike rest their view mainly on one text. This text is the most important of any for the study of Personality in Roman law. Any one familiar with the nineteenth-century litera­ture of the subject will have be^n surprised that it was not discussed in dealing with the ius coeundi. It will soon be clear why this was so; but it is now time to give the text, which is the first part of the first fragment of the title Quod cuiuscumque universitatis nomine vel contra eam agatur,^[CXXXVI] and is taken from the third book of Gaius’ treatise on the provincial Edict:

¹ Neque societas² neque collegium neque huiusmodi corpus passim omnibus habere conceditur: nam et legibus et senatus consultis et principalibus constitutionibus ea res coercetur. Paucis admodum in causis concessa sunt huiusmodi corpora: ut ecce vectigalium publicorum sociis permissum est corpus habere vel aurifodinarum vel argentifodinarum et salinarum. Item col­legia Romae certa sunt, quorum corpus senatus consultis atque constitutionibus principalibus confirmatum est, veluti pistorum et quorundam aliorum, et naviculariorum, qui et in provinciis sunt.

‘ 1. Qyibus autem permissum est corpus habere collegii societatis^ sive cuiusque alterius eorum nomine, proprium^ est ad exemplum rei publicae habere res communes, arcam com­munem, et actorem (sive syndicum)^ per quem tamquam in re publica quod communiter agi fierique oporteat agatur fiat'

Neque societas is the MS. reading, but cannot be con­strued. Grammar has been restored by reading either societatem for societas or haberi for habere. Syntactically, societatem is satisfactory and haberi tolerable. But neither

of them gives a rational meaning to the text. It was certainly not true either in the time of Gaius or under Justinian that there were any restrictions on the forma­tion of societates in the ordinary sense of private partner­ships. Hence no serious attempt was made to translate the text as it stood ; it was recognised as corrupt and assumed to have originally stated the one familiar fact about collegia—namely that they could not lawfully exist without official sanction. Thus Waltzing says:¹ ‘Le texte paraìt corrompu; le sens doit étre: Il n’est pas concede à tous de former un corpus sous le nom de société, de collège ou sous un nom de ce genre.’ It is not explained how Neque societatis neque collegii neque cuiusque alterius huiusmodi nomine, or the like, came to be changed into Neque societas neque collegium neque huiusmodi. But once you have assumed that corpus means (apart from the troublesome societates) an authorised college, it is easy and for a champion of corporate rights highly congenial to find in § 1 that ‘it is of the nature of an authorised college to own property and have an actor .

The difficulty of the word societas was faced and, as many have thought, surmounted by Max Cohn (Conrat) in his valuable work Zum römischen Vereinsrecht.¹· He observed that the societas of this passage is represented in the Basilica by éraipeias, a word which elsewhere means not societates but sodalicia, and accordingly proposed to read sodalicium here for societas (and sodalicii for societatis in § 1). This is ingenious and highly plausible. The com­pilers might very easily change an obsolete word like sodalicium into the familiar societas without noticing in their habitual haste that it was the object of habere, not the subject of conceditur, and must therefore be in the accusative case. And sodalicium (-z) gives excellent sense both for the first sentence of the paragraph and for § 1. Collegium and sodalicium are a very natural pair of almost synonymous words ; and it is no doubt true that every body ¹ Op. cit. vol. ii, p. 445, n. 3.               ² Berlin, 1873, p. 178.

COLLEGIA AND CORPORATE CAPACITY I43 which was either a collegium or a sodalicium required to be authorised, whether severally or by a general grant.

Cohn’s reading is seductive, and has been widely¹ accepted; but it is open to grave objections. It almost ceases to be even plausible as soon as we read the next sentence, which is too often ignored. For the examples given to illustrate the rule fall sharply into two classes: the bodies of the second class might be called either collegia or sodalicia; but the first class is certainly composed of socii and presumably of societates. ‘ Ut ecce vectigalium •publicorum sociis ’ raises a strong presumption against sodali­cium. It has indeed been suggested,^{[137] [138] [139]} and maintained by the high authority of Gierke,3 that the great contractors formed clubs ‘zur Erreichung socialer und ethischer Zwecke’^{[140] [141]} and that these clubs are the corporate bodies here referred to. But Gierke’s authority is not as great on classical Roman law as on that of medieval and modern Germany. None of the evidence adduced for the existence of such Contractors’ Clubs seems to bear investigation.5 Mitteis says:^{[142] [143]} ‘das einzige einigermassen haltbare ist das Col­legium aurariarum (1. aurariorum)? in Dakien’, C.I.L. in. 941; but there is nothing in the inscription to suggest that this is anything but a normal collegium opificum formed by the workers in the mines. And it is certainly a more natural interpretation of Gaius’ words (even if we read 144 sodalicium and sodalicii for societas and societatis') to suppose he means that the socii have an area communis and an actor as partners, in and for the business of the partnership, than to regard their corporate capacity as something quite un­connected with that business. We know that the societates ■publicanorum resembled collegia in surviving the death of a member; we may reasonably believe they resembled them also in possessing corporate capacity.

It is noteworthy that the Digest contains three other texts¹ in which societates are mentioned on the same footing as clearly corporate bodies, with an evident implication that they too are corporate. None of the three is above suspicion; but there seems no reason to suppose that societates publicanorum were first made corporate after the time of Ulpian and Florentinus. And if their corporate capacity goes back to the time of Gaius, they clearly ought to be mentioned in the first sentences of both D. 3. 4. 1. pr. and h. 1. 1.

We have tried to show that h. 1. pr. cannot either have said that there were restrictions on the formation of societates or have ignored the corporate societates and stated only the restriction on sodalicia and collegia. We may now say what we believe to be the true meaning of the text; and we would paraphrase the pr. and § 1 as follows: ‘Not every societas or collegium is allowed corpus habere^ i.e. to have corporate property and act through a corporate agent, in litigation and otherwise, in the same way as a town. This privilege is governed by various laws, and restricted to a few of the great contractors’ partnerships and a few of the most important trade guilds.’

It is admitted that this meaning cannot be got from the Latin as it stands; but neither can any meaning; and the changes required (e.g. changing societas and collegium to societati and collegio^ and inserting aliis after huiusmodi— no change is needed in § 1) are very small.

¹ D. 37. 1. 3. 4 (Ulpian); D. 46. 1. 22 (Florentinus); D. 47. 2. 31. 1 (Ulpian).

This is essentially, but not exactly, the view put forward by Mitteis in his Römisches Privatrecht^[CXLIV] He sets out the traditional view that the ius coeundi carried with it corporate capacity; questions it on the rather doubtful ground of the late grant to colleges of the right to receive legacies and the right to manumit slaves;² and goes on:3

‘Dazu kommt aber noch, dass es immerhin gewagt ist, aus der Konzessionierung der Vereine sofort auf Aner­kennung der juristischen Persönlichkeit zu schliessen. Die herrschende Lehre ist also keineswegs ohne Bedenken.

‘Wenn es nun anderseits sicher ist, dass das Edikt die prozessuale Parteifähigkeit von Vereinen kennt, so gibt es doch einen Weg, dies mit den eben erwähnten Bedenken in Einklang zu bringen, nämlich die Annahme, dass der Prätor nur solche Vereine als Prozessparteien anerkannte, welche die Rechtsfähigkeit als Privileg erhalten hatten. Dabei ist dann die Bemerkung des Gaius in der oben erwähnten Stelle dahin zu verstehen, dass er mit ‘quibus permissum est, corpus habere collegii’ eben die Rechts­fähigkeit meint.’⁴

This statement, the core of Mitteis’ doctrine, seems to the present writer perfectly convincing and satisfactory. Other observations on the following page have been effectively criticised and should perhaps be modified.

First, Mitteis’ declarations that ‘so kann das Wort Corpus hier nur eben die Rechtsfähigkeit bedeuten’ is unnecessarily dogmatic. Jörs⁶ points out that there is no example, outside this fragment, of corpus in this sense. Now Rechtsfähigkeit, ‘corporateness’, is a not unnatural meaning for corpus, though not very close to any of its other meanings; it seems quite appropriate to give the name of body to that which alone makes a college or partnership visible and tangible to the private law. More-

I46 over, there is no other Latin word that can mean corporate capacity. Commercium^ which can sometimes be translated ‘capacity’, ‘Rechtsfähigkeit’, is not used of ‘juristic Persons’. But we can get essentially the same sense in D. 3. 4 by translating corpus as ‘a corporate body’, ‘a corporation’. Corpus is often used quite untechnically of a set of men (or things) which happen to form a group without implying any corporate character; but there are also many passages where it is applied to corporations, and a few¹ where it seems to mean ‘a corporate body’. In either case, whether corpus in D. 3. 4. 1. pr. means ‘corporate capacity’ or ‘a corporation’, § 1 is a definition rather than a further statement of law. ‘ It is the distin­guishing privilege of those who are allowed to have cor­porate capacity (or a corporation) under the name of a college, a partnership, or the like, to have, like a town, common property, a common chest, and an actor through whom, as in the case of a town, whatever needs to be done in common may be done.’

Secondly, Mitteis made his position quite unnecessarily difficult by trying to find in the pr. not only a statement that lawful colleges are not all corporate, but also the statement his predecessors had found, namely that no college is lawful without authorisation. Adopting Cohn’s sodalicium,¹ he translates;3 ‘Weder (nach der polizeilichen Seite) darf jeder einen Verein errichten, noch darf jeder für den (selbst polizeilich gestatteten) Verein (deshalb schon) Rechtsfähigkeit in Anspruch nehmen. Die Sache (gemeint ist zunächst die polizeiliche Frage) ist nämlich durch Gesetze und Senatuskonsulte geregelt. In sehr wenig Fällen ist (insbesondere) die Rechtsfähigkeit anerkannt’, which may be re-translated: ‘Neither (from ^{[145] [146]}

the police point of view) can anyone who likes create an association, nor can anyone who likes claim for the (officially recognised) association (automatically) Per­sonality. The matter (i.e. police permission) is governed by laws and senatusconsults. In very few cases is Per­sonality (specifically) recognised.’ This is not at all satis­factory. It is hardly possible that two quite different principles should be so intricately intertwined. No un­biased reader of the words ‘ neque sodalicium ’ (allowing this for the moment) ‘ neque collegium neque huiusmodi corpus... habere' could take them to mean anything but ‘weder einen Verein noch ein Kollegium noch eine derartige Organisation... errichten’;¹ for corpus is very common in the Sense of ‘a body of men’, ‘a group’, and is used to mean ‘corporate Personality’ nowhere in surviving Latin literature except in this fragment. The words will bear the meaning Mitteis puts on them, but it is incredible that Gaius should have expressed himself so misleadingly. It is of course possible that the text has been much muti­lated, and originally contained both rules. But there is no reason, except a bad tradition, to think the ius coeundi was dealt with in this passage at all. It is not mentioned again anywhere in this fragment or title. In fact Tribonian recognises that the ius coeundi, dealt with in 47. 22, and corporate capacity are essentially different subjects. Gaius probably recognised this too, and discussed them sepa­rately ; and in that case the rule Mitteis seeks to introduce here would be quite out of place in this connection.

It will therefore be better to make the small change to Neque societati¹ neque collegia^ neque huiusmodi aliis corpus passim omnibus habere conceditur, ‘Neither a partnership nor a college nor any other body of the kind is freely allowed in all cases to have corporate capacity (or a cor­poration).’ This gives us all we want of what Mitteis found in the text—all that we cannot find in 47. 22. And

¹ Op. cit. p. 401.                      ² Or societatibus.

³                                       Or collegiis.

I48 the change, besides being small, can be easily accounted for. The statement of Gaius ceased to be true before the end of the century, as will be explained below. Therefore some editor, Tribonian or another, who wanted to save the rest of the fragment, may have changed the first sentence to make it express a rule that was still operative and more or less relevant—namely that a collegium could not exist, and a fortiori could not have corporate capacity, without authorisation. His change was clumsy and ungram­matical, but succeeded in conveying to most readers before Mitteis the impression he intended, that all corporate bodies needed authorisation. In any case, whether the change was made deliberately in this way, or was merely due to the carelessness or hebetude of a scribe, it seems probable that according to Gaius authorisation did not necessarily carry with it corporate capacity.

A further argument in support of this view may be drawn from the central part of h. 1. pr. Gaius says paucis admodum in causis concessa sunt huiusmodi corpora, corporate capacity of this kind is granted (or corporate bodies of this kind are permitted) only in very few cases (or for very few reasons); and gives as examples the farmers of the taxes and of the gold, silver and salt mines, the bakers of Rome, and the navicularii, apparently shipowners, both at Rome and elsewhere. This seems inexplicable on the traditional view. It has long been known that the number of collegia in Gaius’ day was very large—Waltzing has well over two thousand inscriptions, mostly of the second and third centuries. Moreover, their character is extremely varied, many being mere burial clubs with no occupational character at all. This makes it impossible to accept Waltzing’s view that when Gaius said 'paucis admodum in causis' he meant ‘qu’il n’y avait que peu de motifs pour lesquels on les autorisait’, the causae in question being such direct services to the State as the provisioning of Rome and the extinction of fires. Taken by itself, the text might well bear this meaning; but we have seen that the doctrine implied is not supported by any other evidence; and the idea that only useful colleges were allowed to exist shipwrecks on the abundant testimony of the inscriptions erected by obviously independent clubs. On the other hand, if corpus means corporate Personality, all is clear. There were thousands of quite legal and duly authorised colleges, but only a small proportion of them were allowed to own and sue. We do not know this from any other source, but it is quite easy to believe. We are familiar in England not only with the distinction between corporations and unincorporate societies, but also with that between the more privileged ‘common law corporations’, created by charter in virtue of the royal prerogative, and the less privileged corporations created by or in pursuance of statute. We need not therefore be surprised if a com­parison of D. 3. 4. 1. pr. with the evidence of inscriptions leads to the conclusion that different bodies were treated differently in second-century Rome, and that while many associations were lawful few were corporate.

Gaius certainly seems to limit corpus habere to a few of those semi-independent, semi-public organisations that were gradually absorbed into the structure of the paternal State. It is hard to believe that he meant his words to apply to the humble burial and dining clubs which were such a feature of second-century society; he is describing the privilege of a few, not the recognised practice of thousands.

This view is confirmed by what we know of the bodies to which he specifically attributes corpus. They are the publicani, the farmers of such taxes as were not collected by the Emperor’s officials: the contractors who worked the mines for that most socialistic of States, the Roman Empire: and the bakers and shipowners who served the annona and provided the notorious doles of bread for the degraded populace of the imperial city. Now any one of these groups, if it was well organised, could paralyse the central government if it chose. Twice we hear of friction

I JO with the authorities, a strike of bakers at Ephesus,¹ and a strike threat of shipowners at Arles ;² and the government’s anxiety to avoid a stoppage is manifest both in its conces­sions and in its threats. Rome gave Personality not to those who were weak enough to be harmless, but to those who were strong enough to demand it. It was equally important for the capital to please these powerful servants and to give them every right that could make for efficiency. Corpus habere is not the only privilege of which we read. When Gaius tells us that a Latin who became a shipowners or a miller·* could acquire Roman citizenship, this is a direct grant by the Emperor to the individual, not taking any account of the collegia. But the texts which tell us that navicularii *qui annonae urbis serviunt' are exempt from munera publicaS and urbici pistores from service as tutors⁶ clearly contemplate the shipowners and bakers not as isolated individuals, but as members of well-known or­ganisations. It is even thought necessary to explain that the immunities do not attach to what we might call honorary members, who belong to the college but are not actively engaged in its trade?

We cannot be sure what the corporate group was in any of these cases. The societas may be the actual group of partners who make a particular contract or the larger group of capitalists behind it.⁸ The collegium naviculariorum is

¹               About the time of Gaius; Waltzing, vol. in, no. 144. Not at Magnesia, as formerly supposed; see W. H. Buckler, ‘Labour Disputes in Asia’, in Anatolian Studies presented to Sir W. M. Ramsay, 1923, p. 27, following Hiller von Gartringen (Berl. Phil. Woch. 1915, p. 243).

²               Waltzing, vol. iv, p. 616.

³               G. 1. 32c—an edict of Claudius. U. 3. 6 also mentions this edict.

⁴               G. 1. 34, Traianus constituit. Cf. U. 3.1. Pistor, originally ‘miller’, regularly means ‘baker’ in the later Empire. Apparently Roman bakers ground their own flour.

⁵               D. 50. 6. 6. 3—6; D. 50. 4. 5; D. 50. 5. 3, etc. For a clear and concise account of the navicularii, see Sherman, ‘The Roman Administrative Marine’, Studi Riccobono, 1932, pp. 65-76.

⁶Vat. Frag. 233-5, ²37·

⁷Vat. Frag. 233; D. 50. 6. 6. 5, 6, 12.

⁸On the societates publicanorum see Chapter vi.

COLLEGIA AND CORPORATE CAPACITY I^I certainly a federation of shipowners which does not include ordinary sailors, but we do not know whether it was Mediterranean-wide or there was a separate corporation in each port. The collegium pistorum at Rome must have consisted of, or at least been dominated by, the master bakers; but there may have been other collegia pistorum composed of their workmen, and of course most of the inferior hands would be slaves, who are seldom found in professional colleges.

Gaius’ ‘certain other bodies’ are probably the traders in the other staple food supplies of the city,¹ such as the mercatores olearii, the boarii, pecuarii^ suarii,^{[147] [148] [149]} and vinarii, who, like the shipowners and bakers, received immunities and were organised in the third century as an auxiliary civil service. They may also include the three bodies which regularly acted as a fire-brigade, the fabri, dendrophori^ and centonarii. The Digest (50. 6. 7) contains a list of some forty professions and trades which gave exemption from munera graviora, and probably some of these had in the time of Gaius enjoyed the privilege of corporate capacity. But all this is guess-work.

The division of authorised colleges into corporate and unincorporate does not seem to have lasted very long. For we are told that under Marcus Aurelius the rights of taking legacies and manumission were conferred on ‘ omnia collegia quibus coeundi ius est' ;3 and the right of manumission necessarily implies the right of ownership, while the right to take legacies is not very useful without the right to sue for them. From this time on, it appears that every college either has corporate capacity, including the right to own property, the right to sue and the corresponding liability 1^2 to be sued, the right to manumit, the right to take legacies, and an ill-defined variety of other rights, or else does not exist at all in the eye of the law.

The particular rights gradually attributed to colleges are of little interest, since they merely follow laboriously in the footsteps of the municipia. Private colleges could of course claim no publicistic privileges, and even in private law no college seems ever to have had any right not already recognised for towns. We find colleges acquiring by manci­pation¹ and otherwise, through slaves and free representa­tives; giving;^{[150] [151] [152]} buying;3 selling;4 hiring;5 perhaps letting;^{[153] [154]} and promising by stipulation.? The principles otpollicitatio* did not apply, but unilateral promises were often made and carried out, though not enforceable.9 Colleges might also have iura in re.^{[155] [156]} It is almost certain that the property of a corporate college was protected against the creditors of individual members, but there is little evidence. One text looks instructive, but is disappointing when looked at closely. This is a clause of the lex collegii of Lanuvium: ‘ Neque patrono neque patronae neque d\omino\ neque dominae neque creditori ex hoc coliegio ulla petitio esto, nisi si quis testamento heresnomina\tu\s erit'It might be thought that

this clause was meant to bar a member’s creditor who claimed money subscribed by his debtor and now lying in the college chest. But the context indicates that the claim barred is not for payment of a member’s debts but of his funeraticium. Every member was entitled to have three hundred sesterces spent on his funeral. Normally a man’s heir had the right and the duty of burying him and could therefore claim the funeraticium. If a man died intestate, the president of the college was responsible for making arrangements, subject to any vote of a college meeting. But if he died in some remote place, there might not be time to find his heir or communicate with the college authorities; and in that case anyone could take charge of the funeral and afterwards claim the funeraticium from the college. Then comes our clause, which can only mean that a patron, master, or creditor cannot, unless instituted heir, bury a member and claim his funeraticium. The first two exclusions are easy to understand. Patrons and masters were bound to bury their freedmen and slaves, and the members of the college, all comparatively poor men, tenuiores, would not wish to pay a wealthy slave-owner for doing his simple duty. But creditors can have been under no duty to bury their debtors, and the reason for barring them is not clear. Perhaps it was feared they might try to recover their old debt by spending less on the funeral than they would get as funeraticium. Possibly it may have been regarded as the thin end of the wedge: a creditor who was allowed to claim a funeraticium might go on to demand payment of the dead man’s debts; or a creditor who had not buried might claim that his debt ranked before the burier’s as a charge on the dead man’s estate. Whatever the explanation, we can argue a fortiori that in this college if a member’s creditor could not claim a funeraticium he could not claim, from college funds, any payment of what his debtor owed him. But we cannot safely deduce any general rule. We can only say that it seems unlikely that a member’s creditor should be allowed to claim against

size=2 color=black face="Times New Roman">154 the college, and that this text does not make it more likely.

The commercium mortis causa needs a little more dis­cussion. Colleges, like towns, were excluded from testa­menti factio as incerta corpora. They could no doubt take fideicommissa between Augustus and Hadrian ;^J the legacies recorded before Marcus may be either fideicommissa or privilegia or gifts not enforceable but not contested. They had not yet the right of taking legacies, as towns had,^{[157] [158] [159]} when fideicommissa to benefit incertae personae were for­bidden, and this rule, which may not have referred to incertae personae in so many words,3 may have been con­strued as covering gifts to corporate bodies. If so, no college could take anything by will under Antoninus Pius unless by a special privilege. But this state of affairs did not last long; * cum senatus temporibus divi Marci permiserit collegiis legare’A Henceforward any college 'cui licet coire' can take legacies and, a fortiori, fideicommissa.- A gift to a collegium cui non licet was void, though of course the members could take anything singulis legatum 'non quasi collegium sed quasi certi homines'.⁶ But to construe a gift to a college before Marcus, or to an unauthorised college after him, as a gift to the members singulis, would not be satisfactory; for the gift would devolve, not on future members of the college, but on the heirs of those who were

COLLEGIA AND CORPORATE CAPACITY I55 members at dies cedens·? and even those members might be incerti.

Universal succession was first allowed for colleges, as for towns, as a patronal right. But the question did'not arise till late in their history, since it was only Marcus Aurelius who ‘ omnibus collegiis, quibus coeundi ius est, manu­mittendi potestatem dedit'^{[160] [161] [162] [163]} Once manumission was allowed, patronal succession, whose difficulties of consensus and the like had been threshed out for the towns, seems to have been granted without a struggle: * quare hi quoque legitimam hereditatem liberti ’vindicabunf.3 Afideicommissum hereditatis might be charged on a college (presumably by a freedman), and it could be compelled to enter and transfer.* The beneficiary might be a member of the college, and the objection that he would be under obligation to himself was foreseen and overruled:^[164] 'si autem collegium vel corpus sit, quod rogatum est restituere decreto eorum cohortales in 349,⁴ curiales in 352/ navicularii in 354 (or 326),⁶ churches and monasteries in 434,⁷ fabricenses or munition workers in 438,⁸ and navicularii amnici in 450,9 are isolated privilegia resting on no principle. The legions seem never to have been corporate but must have had some sort of

1       This interpretation, which is that of the Gloss and of Waltzing (vol. n, p. 443—no discussion), finds no favour with Schnorr von Carolsfeld. It implies (p. 225, n. 3) ‘die völlige Durchbildung der juristischen Person’ and is ‘weder der Sachlage noch der Entwicklung noch den Inschriften gerecht’. But his paraphrase ‘dann gilt als Schuldner nicht die Gesamtheit, sondern alle einzelnen Mitglieder mit Ausnahme dessen, dem die hereditas herausgegeben werden soll’ seems a long way from the Latin, and his view that the beneficiary is not chosen by the testator but by the college is difficult to accept. Here as elsewhere he makes too sharp the horns of a dilemma and forgets his own correct conclusion (p. 206): ‘dass man eine juristische Person (im Sinne der communis opinio der heutigen Rechtsdogmatik) in Rom noch nicht kannte, wohl aber eine besondere Art Gesamtpersön­lichkeit’. Kübler, reviewing Schnorr von Carolsfeld in Kritische Viertel­jahresschrift für Gesetzg. und Rechtsw., 1935, p. rio, suggests that instead of inserting cut we should omit in and take singulis as dative after restituere.

2       D. 28. 3. 6. 7. This and D. 40. 5. 4. 17 may both be interpolated.

3                                                                          C. Th. 5. 6. ³ =C. 6. 62. 2.       C. 6. 62. 3.

5                           So Mommsen. The MSS. give 319, C. Th. 5. 2. 1. Again in 429, C. 6. 62. 4.     ⁶ C. 6. 62. i.    1 C. Th. 5. 3. i =C. i. 3. 20.

⁸ Nov. Th. 6 = C. 6. 62. 5.                  9 Nov. Valent. 29. 1.

COLLEGIA AND CORPORATE CAPACITY 157 regimental funds: the property may have gone into these or been divided up at once. The cases illustrate the munus system of the late Empire. All the services of industry and transport were organised under State control; all the workers were grouped in colleges; and once a man was enrolled in such a Zwangsverband there was no escape from it for the man himself, his children, or his property.¹ Apart from these anomalous successions on intestacy, it is possible that since colleges must have been able to take fideicommissa after Marcus on the principle *fidei­commissa dari possunt his quibus legari potest' f they may have been allowed, as towns were by the Senatusconsultum Apronianum, to take fideicommissae hereditates. But Dio­cletian could say, and Justinian could repeat: ‘collegium, si nullo speciali privilegio subnixum sit, hereditatem capere non posse dubium non est'.3

There is even less evidence about the delictal responsi­bility of colleges than of towns. They are mentioned in D. 4. 2. 9. i, but not significantly.⁴ A much mutilated inscriptions shows us a college undertaking liability for the fault of its slave custos, which might imply, if no one ever did anything unnecessary, that there was no liability apart from contract. Various colleges were made criminally responsible by late statutes for offences committed by their members⁶ or on their members’ premises;? and ¹ Cf. B. Matthiass, ‘Zur Geschichte und Organisation der römischen Zwangsverbände ’; in the Festschrift presented to von Buchka, Rostock, 1891.

¹ U.25.6. ç C. 6. 24. 8. Cf. D. 29. 2. 25. i. ⁴ Cf. p. cyt, supra.

5       lang=EN-US style='font-style:italic'>C.I.L. vi. 10296; Waltzing, vol. in, no. 1132.

6       C. Th. 16. 4. 5. ³, any Constantinopolitan college (not Roman as Waltzing says) is fined 50 pounds of gold if a member takes part in unlawful and riotous assemblies. Waltzing (vol. 11, p. 454) quotes no text for cor­porate navicular responsibility; the texts he does quote on pp. 275, 276 refer to precautions against the cost of fraudulent shipwrecks being thrown on the fiscus, and to the torture of slaves for evidence, not as punishment. C. Th. 14. 8. 2, the corpus centonariorum is punished if it does not report the desertion of a member who leaves the centonary frying-pan for the curial fire.

7       C. Th. 14. 3. 16, the bakers (not expressly as a college) have to make good thefts from the granaries.

158 Theodosius II made all the fabricenses liable for the delicts and debts of any member.¹ But these laws have no signifi­cance for normal colleges, normal delicts, or normal private law. We are left without evidence, and can only conjecture that colleges, like towns, were considered capable, in the abstract, of wrongdoing, but not of all wrongs, and that they were always liable to restore anything that came to them through the misdeeds of their agents.

We have traced the rise of the Roman colleges. We have studied their legal position in their prime. We will not follow the melancholy spectacle of their decline and fall. They advanced no farther along the road of juristic Personality after the end of the second century; and the story of their enslavement by the State, of the chains which bound a man, his property, and his heirs, to a college, and of the immunities which alone made the burden bearable, belongs to the sphere not of private but of administrative law.

¹ N. Th. 6. 2 (a.d. 438).