CHAPTER IV. COLLEGIA·. THE IUS COEUNDI

We have dealt with the political bodies for which the conception of juristic Personality was first devised; and we have now to consider the many and various private associations which were the most typical and interesting kind of juristic Person, and uncontaminated in the classical law by any taint of publicistic lawlessness.

There were some bodies called ’'collegia' that are yet quite outside the field of this essay. These are in particular the colleges of magistrates,¹ and the four great colleges of priests, the Pontifices, the Pllviri E-pulones^ the XVviri sacris faciundis, and the augurs. None of these was any more corporate than the Cabinet or the Episcopal Bench to-day. They seem not even to have recognised the majority principle except in the appointment of tutors³ and some other tribunician functions.3 There is no question of these bodies appearing as Persons under the private law.

There was another class of official religious bodies, the sodalitates sacrae. Mommsen showed, in his epoch-making work De Collegiis et Sodaliciis Romanorum, that these were originally the gentes regarded as religious organisations.⁴ When the State, in very early times, entrusted the worship of various gods on behalf of the people to sodalitates^ those bodies were organised on a gentile basis.5 This principle gradually disappeared as the gentes lost their importance

¹               E.g.

² By the praetor and a majority of the tribunes, G. 1. 185; U. 11. 18.

³Cf. Livy, 9. 46 and 40. 29; Mommsen, Staatsrecht, vol. 11, 3rd ed.,

pp. 328, 329.                                          ⁴ Op. cit. p. 22.

5       Some of the gentile cults may well have been older than the State itself. and their solidarity; and in the later Republic and Empire the sodales who worshipped the same god, as representatives of the. populus Romanus, might have no other bond between them except profession, neighbourhood, or even mere common citizenship. But whatever their organisation, they came no nearer to Personality than the quattuor summa collegia. The temples where they worshipped, the furniture and vessels that they used, and the victims that they sacrificed, belonged not to the sodales or the sodalitas, but either to the gods or to the populus. The sodalitas might have an area, and could probably acquire for it by traditio to an authorised member, and in some cases by will;¹ but their temples and land were not transferred to the sodales by the methods of private law but dedicated to the gods by public consecration ;² the area itself did not belong to the sodales·, and it is unlikely that any ordinary action ever lay to or against them, either as a group of individuals or as a corporate body.3

Similar to these sodalitates were the pagani, montani and collegia compitalicia of Rome. Very little is known of them, and the very existence in republican Rome of the last- named is only a doubtful conjecture of Mommsen’s;* but it is reasonably certain that they too were created or at least fostered and paid by the State, governed by ius publicum and ius sacrum rather than ius privatum.^

We hear less of these bodies in their normal working than of the perversions and imitations which sprang up in the death agonies of the Republic.

¹ U. 22. 6: a few friendly foreign gods could be instituted heirs, and, alone of Roman deities, luppiter Tarpeius, better known as Capitolinus.

¹ G. 2. 5.

³               For a good discussion and list of the sodalitates sacrae, see Waltzing, Corporations professionnelles, vol. 1, pp. 34-8.

⁴  C.I.L.ia. i55oisimperial,andfromFaesulae;cf.Waltzing,vol.i,p.ioo.

⁵ Waltzing, vol. 1, pp. 39-42, 99-104.

collegia: the ius coeundi

97

and organised such forces as they could procure. They brought to a fine pitch the well-established science of ambitus^ which means canvassing and bribery quite in­differently; and in case an old-fashioned politician like Cicero should either outbid them or steal away their voters by his eloquence and honesty,¹ they enlisted and drilled gangs of hooligans, free and slave, who could be sure of silencing any speaker and persuading any voter? These disreputable bodies were thinly disguised under the respectable names of collegia, sodalitates, and sodalicia? No one could mistake a gang of this kind for a genuine college,⁴ but as real colleges did take part in politics, as at Pompeii, and were not authorised or registered in any way, the line was hard to draw.

¹ Cf. Cic. De petit, cons. 5. 19.

² Cf. Ascon, in Com. (ed. Kiessling and Schoell), p. 67, and Cic. saep.

³               Collegium: Cic. Post red. in Sen. 13. 33, Pro Sest. 15. 34 and 25. 55, In Pison. 4. 9. Sodalitas: Cic. de petit. 5. 19, ad Q.f. 2. 3. 5, and esp. Pro Plancio, 15. 37. Sodalicium: Ascon, in Milonem, p. 34; Cic. Pro Plancio, 15. 36; 19. 47; condemned again in D. 47. 22. 1. pr. Waltzing tries to distinguish them too sharply: compare what he says on p. 50 with Cic. Pro Sest. 15. 34, which he quotes on p. 95.

^{size=1 color=black face="Times New Roman">4} On genuine colleges, see pp. 102 ff., infra.

⁵               Ascon, in Com. p. 67; Cic. Pro Sest. 25. 55, In Pison. 4. 8 and 9, and Ascon, ad loc., pp. 6, 7.

⁶               Ascon, in Com.

⁷ Especially the navicularii, cf. D. 3. 4. 1. pr., which is quoted in support of ‘pistorumque', also important. Waltzing (vol. in, pp. 593—7) enumerates about fifty colleges from Ostia, such as codicarii, curatores navium marinarum, fabri navales, lenuncularii, piscatores, scapbarii, urinatores.

proposed,¹ but are never so called elsewhere, and the phrase is rather unnatural. ‘Lictorumque' will not do, as they were not a college.² Waltzing takes ‘fictorumque' from Manutius, and may well be right. The orthodox view js, or was, that the pauca atque certa collegia included all the collegia opificum and perhaps some others. Waltzing³ makes out a good case for thinking that most of these were dissolved, the exceptions being only ‘ceux qui dtaient fort anciens’,⁴ by which he seems to mean the eight attributed to Numa.5 We need not be too precise about either the number or their exact age; we can admit the probability that most colleges were dissolved, only a few of the oldest and most useful being left; and we can leave over for the present the unprofitable question how many colleges make a few.

In any case, it is obvious that the electioneering gangs cannot have had, as such, any degree of Personality. In so far as they masqueraded successfully as ordinary colleges, they shared such capacity as ordinary colleges then had; but they had no special privileges of their own; the law recognised their existence only by ending it.

An obscure class of colleges which may go back to Republican times⁶ is that of the collegia iuvenumJ They are known chiefly from inscriptions, and seem to have been organised or at least encouraged by the government to train young men for the service of their country and their country’s gods.

1       Waltzing (vol. i, p. 92) quotes five: lictorumque, tinetorumque,fictorum­que, liticinumque, and fictorumque.

2       So Waltzing; but they may typify the decuriae apparitorum.

3       Vol. 1, pp. 90-111.

4       P. no. Cf. Dio Cassius, 38. 13 and Suet. Div. lul. 42.

5       Plutarch, ed. Sintenis, Numa, 17.

6       So M. della Corte, luventus, Arpino, 1924.

The collegia iuvenum are not likely to have had any special privileges with respect to corporate capacity; but they presumably enjoyed such rights as were normally open to lawful colleges,’ and shared the benefits bestowed in the second century on all 'collegia quibus coeundi ius est'.3

Much the same may be said of the ‘cercles d’amuse­ment’,⁴ if they existed. It seems likely that they should have, but the evidence is thin. C.I.L. iv. 1147, * Vettium... aedilem...pilicrepifacite', no more proves that thepilicrepi formed a college than an election appeal to ‘housewives’ proves them corporate. No doubt Vettius was a player himself, and his backers thought it worth while to remind other players of the fact. It is possible to play games without forming clubs. The other names, seribibi, furun­culi, dormientes, sicarif are surely not to be taken seriously. They are possible names for drinking clubs; but they are excellent names for the supporters of a rival candidate. To write up that Cerrinius Vatia is backed by all the topers,

¹ D. 48. 19. 28. 3.                                   ² See Chapter v, infra.

3 See p. 151, infra.                                 ⁴ Waltzing, vol. 1, p. 51.

5     C.LL. iv. 581, 576, 575, 246.

IOO the pickpockets, and the sleepy-heads, is as good propa­ganda for his opponent as to say that all the muleteers, goldsmiths and timber merchants support Cuspius Pansa,¹ and much more satisfying to the feelings. The man or boy who created ‘seribibi' was so pleased with his wit that he left us his name: 'scripsit Florus'. Latronis collegium in Apuleius, Metam. 7. 7/ can hardly be considered tech­nical; and ambubaiarum collegia in Horace, Sat. 1. 2. 1, Waltzing himself recognises as a pleasantry. As for C.I.L. x. 2971, 'ex Epicureio gaudivigente choro', this looks like a reminiscence of Horace, Ep. 1.4. 16, 'Epicuri de grege porcum', where no one scents a college. Waltzing well points out that other apparently convivial bodies are burial clubs.

Military colleges 3 are also obscure, though their exis­tence is certain. Private soldiers were not allowed to form colleges,⁴ no doubt for disciplinary reasons; the Roman Emperors did not want soviets in their armies. But a subscription to pension and burial funds was deducted from their pay and donatives,5 so that they received the chief advantages of college membership. The colleges of officers, allowed by Septimius Severus,⁶ and of technical corps, which appear under Hadrian,7 seem to have been only slight modifications of the usual type of college. The chief peculiarity is that members might be supplied from ¹ C.I.L. iv. 97, 710, 960.

^{1 l}Denique noluit esse Caesar Haemi latronis collegium, et confestim interivit; tantum potest nutus etiam magni principis.' We might translate ‘Caesar withdrew the ius coeundi from the robber’s band’, and see an ironical reference to the ease and frequency with which the law against unauthorised bodies was evaded. The law must have been hard to enforce and its laxity may have been notorious enough to provide a butt for wits, like the Eighteenth Amendment to the United States Constitution. This should seem especially plausible to those who believe that Gaius, a close contemporary of Apuleius, said that colleges were only allowed to exist ‘paucis admodum in causis'. Cf. p. 148, infra.

³  Waltzing, vol. 1, pp. 55—6, 308—12.

⁴  D. 47. 22. 1. pr.                    ⁵ Vegetius, Epitoma rei militaris, 2. 20.

6 Waltzing, vol. 1, pp. 309^ and reff. there.

7 Kornemann, in Pauly-Wissowa, s.v. collegium, p. 400.

the arca with journey-money, and receive a bounty on discharge, as well as, or instead of, the usual funeral.¹ Still less remarkable are the collegia veteranorum.^1. It is natural that old soldiers should have stuck together, but the colleges they formed seem to have been perfectly normal except for the members’ antecedents.

The only other bodies which need separate mention here are the decuriae apparitorum^ and the Augustales.⁴ The apparitores were the inferior civil servants, clerks, heralds, and the like. The decuriae into which they seem to have been grouped by their superiors were not necessarily collegiate, and concern us only when they formed them­selves into true colleges, with or without the name of collegium.'* They are more prominent in the legal texts than they deserve to be, because the jurists sometimes distinguish them from collegia and mention them sepa­rately;⁶ but their legal position seems to have been identical. The Augustales seem to have been created to exploit the snobbery of parvenus, especially freedmen. A Trimalchio was allowed to pay a large sum, celebrate games in the Emperor’s honour, and call himself a sevir Augustalis.! When his year of office was over, he kept the title of Augustalis and had a secure place in the second rank of municipal society. They come into this essay only because the Augustales of a town sometimes formed themselves into a college which seems to have been quite normal in character.⁸

¹               Waltzing, loc. cit.; C.I.L. vm. 2554, 2557.

¹ Waltzing, vol. 1, p. 56; Kornemann, p. 399.

³               Waltzing, vol. 1, p. 54; Kornemann, p. 401.

⁴               Waltzing, vol. 1, pp. 38, 39; Mommsen, Staatsrecht, in, pp. 452-7.

⁵               With, C.I.L. vi. 7446, and probably 9861, where the word is spelled apparatiorum); without, vi. 1946, 1947, 4013, etc.

⁶               D. 29. 2. 25. 1; D. 37. 1. 3. 4; D. 46. 1. 22.

^{7"Times New Roman"'>}               See Waltzing and Mommsen, locc. cite.

⁸               They are cultores domus divinae, worshippers of the Imperial family, C.I.L. v. 6657, 5465 (?), 5749 (?), 5844 (?), 6349 (?), 8922 (?)· They were corporati, which does not mean corporate, x. 1880, xn. 409; formed a corpus, xn. 700,1005; and might have an area, v. 4428, xn. 4354, 4397.

It has been assumed all through this chapter that there was a normal type of college; and this normal type must now be defined and discussed. The normal college¹ of the Republic and early Empire was a body of men, sometimes neighbours, often workers in the same trade, who asso­ciated themselves voluntarily, always under the protection and for the worship of some god or gods, and usually either for purposes connected with their trade, or to secure well-furnished and well-attended funerals, or both. These bodies are usually called collegia, often corpora, and some­times sodalicia (not sodalitates'), without any apparent dis­tinction of meaning. When their religious aspect is most prominent, they are called collegia cultorum·, where they are primarily considered as fellow-workers, they are called collegia opificum, artificum·, where their main object is burial, they are called collegia salutaria or simply collegia tenuiorum?· But it must be remembered that all collegia were in a sense cultorum, most were opificum, and nearly all concerned themselves with the burial of their members. Most, if not all, colleges held banquets,3 which served the double purpose of social gatherings and religious services. The executive officers or presidents were called magistri or, since they were usually elected for five years, quinquennales. There was a hierarchy of officials, with titles imitated from towns and from the populus, and a committee of decuriones. A member is usually called 'ex collegio' or some such periphrasis, sometimes corporatus or collegiatus, also collega and sodalis (of the other members). A great deal might be, and indeed has been, said about the

* Cf. Waltzing, passim·, esp. the Indices in vol. iv.

²               Collegium funeraticium is a convenient Mommsenism with no ancient authority.

³               At which each member (in the case of the collegium salutare cultorum Dianae et Antinoi at Lanuvium, C.I.L. xiv. 2112; Girard, Textes, p. 888; Bruns, Fontes, p. 388) received four sardines, a pennyworth of bread, and an amphora of good wine. Amphora is presumably not used in its technical sense, of a quantity equalling about six gallons; if it is, Falstaff, with his two gallons odd, seems quite abstemious. organisation and activities of the collegia; Waltzing alone devoted twenty years to the subject. But this is not the place to repeat or supplement his account; we must pass on to the legal history of the colleges, their conflicts with the public law and their position under the private.

This history of the colleges goes back as far as the history of Roman law itself. We are told that they were first founded by Numa,¹ and although we need not believe this or any other statement about that shadowy king, the legend shows that the colleges were older than recorded history. They emerge into daylight, like the private law, in the Twelve Tables. Gaius (ad legem duodecim tabularum) says: * Sodales sunt qui eiusdem collegii sunt: quam Graeci έταιρείαν vacant. His autem potestatem facit lex pactionem quam velint sibiferre^ dum ne quid ex publica lege corrumpant. Sed haec lex videtur ex lege Solonis tralata esse. Nam illuc ita est: εάν δε δήμος ή φράτορες ή ιερών οργίων ή ναΰται (?) ή σύσσιτοι ή όμόταφοι ή θιασώται ή επί λείαν οίχόμενοι ή εις έμπορίαν, ότι άν τούτων διαθώνται πρός άλλήλους, κύριον είναι, εάν μή απαγόρευση δημόσια γράμματα.’² Here again we need not be too confident that the law dates from 450 b.c., still less that it was taken straight from the law of Solon. But we can be certain that the rule goes far back into the Republic, which is all we need to know; and that for Gaius the early collegia were comparable with the Greek bodies enumerated by Solon.

As soon as we begin arguing from this text we are on very debatable ground. Gaius says that colleges were allowed, within limits, to make their own statutes; but he does not tell us whether these colleges were created by the State (like Numa’s alleged foundations) or by private enterprise; or whether their creation, if by private persons, needed the State’s permission. Saleilles,3 with his usual mixture of fertile ingenuity and clear-sighted candour, suggests as ‘infiniment probable’, though resting ¹ Plutarch, Numa, τη.             ² D. 47. 22. 4.

3 Personnalitijuridique, pp. 57—9.

104 on no substantial evidence, that the Senate had the duty of surveillance, before 450, over the statutes of colleges created by private enterprise, and of condemning those that infringed the law. Shortly before 450 the Senate may have exceeded its powers and insisted that every college must submit its statutes for examination and approval before it could come into existence. These pretensions were put a stop to by the Twelve Tables, which threw back the burden of raising any question of illegality on to the Senate. This is ingenious and coherent; it cannot be dis­proved, but no one, least of all M. Saleilles, would deny that several other explanations would fit the evidence equally well. One point needs more positive criticism. There is no reason to suppose that in the fifth century b.c. the Senate was the appropriate authority to exercise what­ever control there may have been over the colleges. It was the Senate that dealt with the Bacchanals in 186 b.c.; but it is well known that during the Punic Wars (265—146) the Senate acquired a general control over all spheres of government, which rested on no foundation but a growing custom and was quite a new thing. If any college had broken the law before 300 b.c. it would no doubt have been dealt with by a magistrate, who could consult the Senate if he liked, but could take any steps necessary on his own authority.

But apart from these speculations, it is reasonable to deduce from Gaius that colleges were founded in early times by private persons, and not only by the State; for if the State created a college, it would naturally draw up statutes for it. Moreover it is obvious that many of the Greek bodies in the law of Solon could not be State creations. But on the important supplementary question whether a body of private citizens did or did not at this time require the State’s permission to found a college, Gaius throws not a ray of light. The only hope of solving the problem is to argue back from later evidence, such as it is.

We hear very little of any private colleges before the

second century b.c. There is a pleasant story of 309 b.c. about the tibicines} They were deprived of the right they had enjoyed of dining in the temple of Jupiter, and with­drew to Tibur as a protest. There they were hospitably received and given their fill of wine, cuius avidum ferme genus est\ and as soon as the wine took effect they were brought back to Rome senseless in carts. Peace was made, and their privilege restored Us qui sacris praecinerent, to those who should sing for their supper. This does not seem to be an official sodalitas, nor is it the founding of a college. The tibicines are a private body of some standing, and this episode is concerned only with the withdrawal and restoration of a privilege in no way necessary to their collegiate or corporate character, but granted them in recognition of their public services. The chief interest of the passage is that it shows the government’s policy was then, as in the classical law, to persuade the opifices by bribes, rather than compel them by threats, to giVe their services to the community. There are a few other recorded privileges of the same kind and about the same date.²

The next event of importance in the history of colleges is the suppression of the Bacchanals in 186 b.c. The old worship of Bacchus had been transformed into a mystery religion of the most debased Greek type; the immoralities of the cultores Bacchi were extreme, and they were sus­pected of murder. At last the Senate was roused to action, and, in a decree still preserved in bronze, dissolved the offending bodies and forbade their restoration.3 They laid down ‘ neiquis eorum (Bacanalium") Bacanal habuise velet... magister neque vir neque mulier quisquam eset. Nevepecuniam quisquam eorum comoinem habuise velet·, neve magistratum, neve pro magistratud, neque virum neque mulierem quiquam fecise velet etc., etc.'* The decree is too long to quote in

¹               Livy, 9. 30.

²E.g. Festus, s.t>. Scribes, ed. Mueller, p. 333. Cf. Livy, 27. 37.

³See Livy, 39. 8 ff.

⁴C.I.L. 1. i96=x. io4=Girard, Textes, p. i29=Bruns, Fontes, p. 164.

io6 full, and the Latin is archaic and sometimes obscure. But some of its provisions need comment.

The clauses already quoted show that the dissolved bodies are not to spring up again; but there is an interesting provision that if any people said a Bacanal was necessary to them they were to appeal to the praetor, who would lay the case before the Senate. This implies that under stringent conditions colleges of Bacchanals might be allowed to form again; and this again suggests that if the Bacchanals, who were hated and feared by all Rome, were allowed to revive if they applied for permission, other colleges, innocent and even useful, must before this have been better off, that is to say must have been allowed to form themselves without any need of special authorisation. And this is in fact the view of the best authorities;¹ that before this decree there were no restrictions at Rome on the right of association.²

The clause about pecunia comoinis is very important, but belongs to the discussion of corporate capacity rather than of the ius coeundil More relevant, and perhaps even more important, is a clause not yet quoted: ‘ Homines pious V oinvorsei vires atque mulieres sacra ne quisquam fecise velet^ neve inter ibei virei pious duobus, mulieribus pious tribus arfuise velent, nisei de pr{aitoris) urbani senatuosque sententiad^ utei suprad scriptum estl This looks like the most rigid control of colleges. Not more than two men— and three was afterwards considered the least that could be called a college⁴—may meet to perform a religious ceremony without the permission of the praetor and the Senate; and a college without sacra would be quite con­trary to Roman ideas. But this Senatusconsultum, though generally worded, was certainly directed only against the

1       Saleilles, p. 59; Waltzing, vol. 1, p. 78; Kornemann, p. 404; all following Mommsen.

2       Except that according to Porcius Latro the Twelve Tables forbade nocturnal, and a lex Gabinia clandestine, gatherings in the city of Rome. {Decl. in Catilinam, 19.)

3                                                                               See p. 133, infra.  ⁴ D. 50. 16. 85.

Bacchanals and closely similar bodies, not against colleges as a whole. This is shown, not only by the whole context of this clause, but also by the rules of sex; it is only because the Bacchanalia were properly women’s rites that more women than men may be present, and it would be absurd from the Roman point of view to generalise such a rule. And it must be remembered that a republican senatus- consult had not the force of law; it was only a direction to the magistrate, who could interpret it and exalt the spirit above the letter much more freely than a iudex\ and such force as it had it would lose by desuetude much more easily and quickly than a lex. It is therefore not surprising that we never find this senatusconsult invoked against the unruly colleges of later times. But it set a precedent; all colleges knew what to expect in future if they incurred the authorities’ displeasure.

They took the lesson to heart; and for over a hundred years they prospered and multiplied without any serious conflict with the law or the authorities. We hear of them only from a few inscriptions and an occasional literary reference. They were simply ignored by the law.¹ It is clear that they needed no authorisation; otherwise they could not have given so much trouble at the end of this period. But it would be misleading to say that the right of association was recognised, still less guaranteed. The Romans were too practical to take much interest in the Rights of Man; and a Republican lawyer would certainly have recognised without hesitation the power of the sovereign assembly, and probably of any magistrate with imperium, to dissolve any college or colleges that seemed undesirable. But for the present the colleges were sub­missive to the law and the law smiled on the colleges.

This golden age came to an end in 64. We have seen how the Catilinarian clubs were dissolved and involved

¹ The republican lex Metella (or Metilia) fullonibus dicta (Pliny, Nat. Hist. 35.17.197) laid down rules about the work of individuals, not about the college.

in their fall nearly all the colleges. They were restored in 58 by a lex Clodia, but apparently dissolved again in 56 by a senatusconsult¹ reinforced by a lex Licinia. Waltzing* believes that on this occasion the religious and vocational sheep were divided from the political goats; but the line would be as hard as ever to draw, and the evidence is inconclusive. In any case the Senate and Cicero, the clubs’ chief enemy, soon had other things to think of; and the colleges were probably left pretty much to themselves, whatever the law may have been, till Caesar had established his authority.

But the period of anarchy and freedom from all restraints but force did not last many years. Caesar in his short term of power was able and determined to restore order in Rome; and the new and revived colleges found the former demagogue no less severe than their common enemy the Senate. Suetonius 5 tells us that Caesar ‘ cuncta collegia praeter antiquitus constituta distraxit’; and an edict quoted by Josephus⁴ says that Caesar ‘έν τφ διατάγματι κωλύων θιάσους συνάγεσθαι κατά πόλιν, μόνους τούτους (the Jews) ούκ έκώλυσεν ούτε χρήματα συνεισφέρειν ούτε σύνδειπνα ττοιεϊν’. The antiquitus constituta are probably much the same as those spared by the Senate in 64. Apart from them and the Jews, Caesar forbade all colleges, at least in Rome and probably throughout Italy, to hold any meetings either for dining or for any other purpose, or to subscribe to a collegiate fund. Whether he did this by a lex or by an edict we cannot tell, and it does not matter in this connection. The measure was practical, drastic, and no doubt effective for the moment. But it was hope­lessly unconstructive. To abolish all colleges permanently would have injured what was left of Italian industry, struck a severe blow at religion, and made the Caesars very unpopular with the working classes, with com­paratively little advantage to set on the other side.

¹ Cic. ad Q.f. 2. 3. 5.                           ² Op. cit., vol. i, p. in.

3 Divus lulius, c. 42.                           ⁴ .tint. lud. 14. 10. 8.

In the troubled times after Caesar’s death the colleges naturally revived, and new perversions sprang up; 'pluri­mae factiones titulo collegi novi ad nullius non facinoris societatem coibant’ ? Augustus therefore ‘ collegia praeter antiqua et legitima dissoluit' f The exceptions were no doubt much the same as before. But as usual he was not content with destroying. Our evidence is scanty and frag­mentary; but it seems probable that in a lex lulia’i he laid down rules for the future control of colleges. This lex lulia is referred to only in one inscription: ‘ Dis Mani­bus. Collegia symphoniacorum, qui sacris publicis praestu sunt, quibus senatus empire'} c(onvocart) c(pgt) permisit e lege lulia ex auctoritate Auglustt) ludorum causa.'Most writers assume almost as an axiom that this law is a lex lulia de collegiis, and as the number of leges luliae was large they may well be right. But we do not hear of such a law any­where else, and it is by no means impossible that the famous lex lulia de vi is that referred to.5 Both the de vi publica⁶ and the de vi privatal are largely concerned with unlawful gatherings; and one or other may very possibly have laid down the conditions under which a gathering would be considered lawful. What those conditions were, no matter whether they were contained in one of the leges de vi or a special lex de collegiis, must be deduced from this and other inscriptions and one or two texts of the Digest. Two main questions arise. The first is what collegia were sanctioned by the lex lulia or other legislation, and under what conditions. This will occupy the rest of the present chapter. The other, treated in Chapter vi, is

IIO what privileges were involved in the grant of permission to form a college, how far the ius coeundi implied corporate capacity.

We hear only once of the lex lulia itself;¹ but there are a certain number of inscriptions ^{[110] [111] [112]} (less than one per cent, of Waltzing’s collection) which say that a college exists ex senatus consulto or ex -permissu of the Emperor; there is a title in the Digest 'De Collegiis et Corporibus' and the younger Pliny shows us the system at work. To take the Digest first, the most relevant parts of the title 3 run as follows.

1.   Marcian. 'Mandatis principalibus praecipitur praesidi- bus provinciarum, ne patiantur esse collegia sodalicia neve milites collegia in castris habeant.⁴ Sed permittitur tenuioribus stipem menstruam conferre, dum tamen semel in mense coeant, ne sub praetextu huiusmodi illicitum collegium coeat. Quod non tantum in urbe, sed et in Italia et in provinciis locum habere divus quoque Severus rescripsit, (i) Sed religionis causa coire non prohibentur, dum tamen per hoc non jiat contra senatus consultum quo illicita collegia arcentur. (2) Non licet autem amplius quam unum collegium licitum habere, ut est constitutum et a divis fratribus (Marcus Aurelius and Verus): et si quis in duobus fuerit, rescriptum est eligere eum oportere, in quo magis esse velit, accepturum ex eo collegio, a quo recedit, id quod ei competit ex ratione quae communis fuit.'

2.   Ulpian. * Quisquis illicitum collegium usurpaverit, ea poena tenetur qua tenentur qui hominibus armatis loca publica vel templa occupasse iudicati sunt.'

3.   Marcian. 'Collegia si qua fuerint illicita, mandatis et constitutionibus et senatus consultis dissolvuntur: sed permittitur eis, cum dissolvuntur, pecunias communes si quas habent dividere pecuniamque inter se partiri. (1) In summa autem,

nisi ex senatus consulti auctoritate vel Caesaris collegium vel quodcumque tale corpus coierit, contra senatus consultum et mandata et constitutiones collegium celebrat.'

It will be convenient to discuss this text in detail, com­paring the other texts with it, since it raises all the problems which beset the ius coeundi.

The very first word raises a point of some importance. It is not any lex lulia that is the operative authority in Marcian’s day, but imperial mandates. This was already so in the time of Pliny;¹ and it is certain that the lex lulia, whatever it may have been, was extended and elaborated by a series of senatus consulta, mandata, and constitutiones, referred to in h. t. 3. pr. It is hopeless for us, in the state of the evidence, to assign different rules to their authors or dates; and some apparent inconsistencies may be due to changes in the law.

The next question is: What does collegia sodalicia mean ? If we could answer this with confidence, it would supply firm ground for the following discussion, but it is not quite clear. Waltzing² translates ‘Colleges a tendances dange- reuses ’, and Mommsen says in his De Collegiis et Sodaliciis: 3 'sodalicium sive collegium sodalicium...proprie dicitur col­legium ad turbas in civitate movendas constitutum'. But Mommsen half changed his mind; later in the same work⁴ we read in connection with D. 47. 22. 1. pr.: 'Suprap. 32 not. i collegia sodalicia de coetibus factiosorum interpretatus sum, sed fortasse erravi, Basilica enim ita vertunt: οί άρχοντεξ ττανταχοϋ κωλυέτωσαν έν πόλεσι καί κώμαις 1διώτα$ ή στρα- τιώτας έν τοϊς κάστροις αυτών εχειν έταιρικά συστήματα. Graeci igitur acceperunt de omnibus collegiis illicitis priva­torum ; quod ut admittam facit et auctoritas eorum in hac re maxima et sententia multo aptior et facilior.' The word sodalicium, innocuous in itself, acquired a taint of faction and illegality in the time of Clodius, but this seems to have worn off. Colleges were not ashamed to call ¹ Ep. ad Trai. 96. 7.                                                    ¹ Op. cit. vol. 1, p. 158.

³ P. 32, n. i.                                      ⁴ P. 87, n. i.

112 themselves soda Heia-, Waltzing gives twenty-two inscrip­tions.¹ On the whole, it seems most likely that collegia sodalicia in Marcian means no more than collegia standing by itself? If so, we have a general order to provincial governors not to allow any colleges, followed by excep­tions; whereas if collegia sodalicia meant factious colleges, we might suppose that for collegia in general permission was the rule, prohibition the exception.

This view of D. 47. 22. 1. pr. is supported, though not proved, by h. t. 3. 1: 'in summa autem, nisi ex senatus consults auctoritate vel Caesaris collegium vel quodcumque tale corpus coierit, contra senatus consultum et mandata et con­stitutiones collegium celebrat'. This certainly shows that all collegia needed authorisation, but throws no light on the question which bodies were authorised generally and which had to make special application.

Before discussing what exemptions were granted from the general prohibition, it will be useful to bring up in support of Marcian’s evidence the most instructive auxiliary text, the inscription of the collegium salutare Dianae et Antinoi at Lanuvium.3 This prefixes to the college statutes what it calls 'Kaput ex SC. p(opuls) R(pmans)', running as follows: 'Qyib[us coire co~\nvenire collegiumq(ue") habere liceat. ^jfi stipem menstruam conJ erre volen[t in funejra, in it collegium coeant, neqlue) sub specie eius collegi nisi semel in mense c\oeant cojnjerendi causa., unde^ dejuncti sepeliantur.'

This inscription and Marcian’s statement about tenuiores evidently refer to the same rule. Hence it was argued by ^{[113] [114] [115] [116]}

collegia: the ius coeundi

”3

Mommsen,¹ and has been widely recognised, that poor people’s burial clubs were exempted from the general ban on collegia, subject to a limit on the frequency of their meetings: any poor people who chose to form a burial club, and did not want to meet more than once a month, could do so without any special permission from the authorities and without fear of suppression unless they misbehaved; whereas other collegia (which we know from inscriptions were numerous) had to be specially and sever­ally authorised.

Marcian indeed says nothing about burial, and we might suppose from his second and third sentences that poor people could freely form collegia for any innocent purpose, social and industrial² perhaps, religious certainly. The Lanuvian Kaput recognises only burial clubs, but there may have been other chapters authorising other kinds of collegial Such a general authorisation of all collegia, provided their members were poor and did not meet more than once a month, cannot, however, be reconciled with the first sen­tence of the fragment, with the situation we find in Pliny, with the evidence of inscriptions, or with what we are told about collegia illicita.

The younger Pliny was governor of Bithynia from 111 to 113. He consults the Emperor at least three times on the subject of colleges and the correspondence gives us a good deal of light. In Ep. 33, ad fin., Pliny asks the Emperor’s sanction for a collegium fabrorum, to act as a

^{size=1 color=black face="Times New Roman">1}               De Collegiis, pp. 88-91.

²               Mitteis, Privatrecht, p. 398, n. 31, says: ‘die Erteilung der Immunität an die Mitglieder der Handwerker-Kollegien und die damit zusammen­hängende Ausschliessung gewisser Personen von der Aufnahme (D. 50, 6, 6, 12) setzt generelle Konzession voraus.’ But the text is quite consistent with a special authorisation of each college, and rather suggests that those in question were actually organised by the government, like Pliny’s proposed fire-brigade. The ‘exclusion of certain persons’ is not from membership of the college, but from the immunity accorded to such members as actually did useful work.

³               All inscriptions claiming for a college the sanction of the Senate might then refer to this same senatusconsult.

fire-brigade:¹ ‘Tu, domine, dispice an instituendum putes collegium fabrorum dumtaxat hominum CL. Ego attendam ne quis nisi faber recipiatur neve iure concesso in aliud utatur; nec erit difficile custodire tam paucos.' The request seems reasonable, but Trajan will have none of it:^{[117] [118] [119]} ‘meminerimus provinciam istam et praecipue eas civitates eiusmodi factionibus esse vexatas. Quodcumque nomen ex quacumque causa dederi­mus iis qui in idem contracti fuerint, hetaeriae que brevi fient. Satius itaque est comparari ea quae ad coercendos ignes auxilio esse possint admonerique dominos praediorum ut et ipsi inhibeant, ac si res poposcerit, adcursu populi ad hoc uti' \ the Nicomedians may not form a crowd till the fire is actually alight. The only natural conclusion from these letters is that no collegium opificum (for the fabri were among the most favoured trades) could come into existence without official permission, which was seldom given to Bithynians and never for Nicomedia. This is borne out by Epp. 92 and 93, where the Amiseni are allowed to have erani or friendly societies only because the right was safeguarded by their treaty with Rome: ‘in ceteris civitatibus, quae nostro iure obstrictae sunt, res huiusmodiprohibenda est'. This takes us beyond the collegia opificum, as there is no reason to think the erani or έρανοι were trade unions. But there is a complication. The ερανο$ was a friendly society which provided relief for sick or unfortunate members ;3 and Waltzing^{[120] [121]} has shown that there is no trace of any such societies within the sphere of true Roman law. A Christian church or congregation was such a body, but it is now generally believed that Christians neither posed nor were regarded as collegia tenuiorum before the third century.5 Pliny certainly,¹ and Tertullian apparently,² thought their assemblies were technically illegal, though Tertullian main­tained they were admirable or at least harmless. In any case, their position was equivocal and anomalous.³

It is clear that men could not freely form associations in Pliny’s Bithynia. That the same was true of other places and times is suggested, though without other evi­dence it would not be proved, by a number of inscriptions in which colleges claim for themselves the authorisation of the Senate or the Emperor.⁴ We might suppose that ‘ quibus ex S.C. coire licet' referred to lost chapters of the Lanuvian senatusconsult; or that the collegia which boast of their authorisation had received some special mark of favour, like our R.S.P.C.A. But the most natural view is Mommsen’s: that any collegium other than a burial club required the special sanction of the Senate or the Emperor.

How the field was divided between these two authorities is not indicated by Marcian, and must be deduced from inscriptions. They seem to show that in general the Senate dealt with colleges in senatorial provinces, the Emperor in imperial.5 This is simple and natural, but there are some puzzling exceptions.⁶ They can best be explained by another reference to Pliny. We have seen him as gover­nor of Bithynia, a technically senatorial province which was already half-way towards being imperial in practice and became so in name twenty years later, consulting the Emperor about colleges. In Paneg. 54 we find him as a senator speaking of the Emperor’s consulting the Senate on the same subject. He finds fault with Domitian not, as Waltzing? says, for consulting them on such ‘vetilles’; that would imply that such consultation was unnecessary,

¹               Ep. ad Trai. 96.

²               Apology, 38, 39; De ieiunio, 13: ‘nisi forte in senatus consulta et in principum mandata coitionibus opposita delinjuimus'’.

³                                                                                                                                See p. 169, infra. ⁴ Waltzing, vol. iv, pp. 581—3.

⁵               Mommsen, Staatsrecht, vol. 11, 3rd ed., pp. 860 and 886.

⁶               The Emperor in senatorial provinces, C.I.L. v. 4428, 11. 1167; the

Senate in imperial, v. 7881.                  7 Op. cit. vol. 1, p. 119. and disused under Trajan; but because an affair of such slight importance was expected to produce as great a crop of empty adulation as an extension of the imperial frontiers.¹ The point for us is that Pliny says ‘de instituendo coliegio fabrorum consulebamur’ as a customary thing. The fact is that the spheres of work of the Emperor and the Senate were not sharply defined. If the Emperor was interested in a college in a senatorial province, nobody would protest against his authorising it. And on the other hand the Emperor might ask the Senate, as a compliment or because he was too busy, to consider and report to him on a college in his own area? A provincial magister collegii or stone­cutter is not likely to have distinguished at all clearly between the two central authorities.

Another argument, strong though indirect, for the general prohibition of unauthorised collegia is the very diverse treatment accorded in different passages of the Digest to collegia illicita. Both attitudes are represented in D. 47. 22. UlpianS says that whoever ‘illicitum collegium usurpaverit' is liable to the penalty of treason,⁴ whereas Marcian5 does indeed say that collegia illicita are dissolved, but so leniently are they treated that the college property is not confiscated, as we might expect, but divided among the members. We are not told whether they all share equally, or in proportion to what they have paid in.⁶ Similarly in D. 34· c_j. 20 Paul tells us that the members of a collegium cui non licet coire can take a legacy left to them singulis, non quasi collegium sed quasi certi homines. That does not look as if they were considered treasonable. No doubt the word usurpo used by Ulpian means something more than ‘belong to’, ‘join’; it is rather ‘form’ or ‘use

¹ So Cohn (Max Conrat), Zaza romischen Vereinsrecht, 1873, p. 88.

¹ Cf. Tac. Ann. 14. 17.                                    ³ H. t. 2.

Cf. D. 48. 4. 1. 1.                                           ⁵ D. 47. 22. 3. pr.

^{face="Times New Roman">6}               Cf. ‘w quit eorum {ti)abuerat' in’C.I.L. hi. 2. p. 925, quoted below, p. 127. In a burial club division should perhaps logically take account of the members’ expectation of life; but this is not likely to have happened in practice.

for his own purposes’; but that is not enough to account for the contrast. We cannot suppose that the members of a college whose president had been, or might at any time be, crucified or thrown to the lions,¹ would advertise their membership by applying to the courts either for a share of the pecunia communis or for a legacy that linked their names with the proscribed organisation.

The conclusion is irresistible that two different ideas are covered by the expression collegia illicita. Ulpian means treasonable colleges, the hetaeriae of Trajan, the successors of Clodius’ sodalicia, bodies that have been specifically banned by the government, or would be if it knew of their character and did its duty. So when Marcian says in D. 47. 22. 1. pr. that the tehuiores may only meet once a month 'ne subpraetextu huiusmodi illicitum collegium co eat', he must mean a seditious college, a hetaeria; and in h. 1. i illicita collegia arcentur implies that they are intrinsically dangerous.

On the other hand the collegia illicita that are allowed to divide up their property on dissolution, and whose members are allowed to take property left them as mem­bers, are treated with a leniency that is almost toleration. ' Sed illicita collegia quae tolerarentur est contradictio in adiecto ’ ;² they are unlawful and must therefore be dissolved; and this innocent illegality is intelligible if we admit the general rule that a college, however well-intentioned, is unlawful unless authorised. We can easily believe that governors did not always think it necessary to interfere with inoffensive gatherings in peaceful provinces; no doubt many collegia^ conscious of moral rectitude, did not trouble to apply for a permission which they knew would be granted as a matter of course. But on any alarm of con­spiracy or rebellion or even of what we should call industrial unrest, the rule would be enforced and the colleges that had been winked at hitherto would be reminded that 'nisi

¹ Cf. P. Sent. 5. 22. i with D. 47. 22. 2.

* Mommsen, De Collegiis, p. 40, n. 32.

Il8 ex senatus consulti auctoritate vel Caesaris collegium vel quodcumque tale corpus coierit, contra senatus consultum et mandata et constitutiones collegium celebrat'f

It seems that a college applying for permission to exist had only to prove its harmlessness, to show that it was not and would not become a hotbed of faction and sedition. The not uncommon view that positive utility was required, that every college must prove it would be not only harmless but definitely of service to the State, is a purely arbitrary projection into Roman times of modern ideas. It rests on no substantial evidence, and is in contradiction with the tenor of all that we know about the colleges in the first two or three centuries of the Empire. The burial clubs, for instance, which were so favourably treated, make no profession of utility to anyone except their own members. Even in later times, when the colleges we hear most about are organisations devoted to the service of the State under the most rigid control, there is no reason to think that colleges of a less bureaucratic and more social type died out altogether.

The doctrine seems to be taken by Waltzing² from Gierke,3 and from him by Saleilles.4 The two last can neither of them be considered strictly impartial. Gierke is an artist who delights in emphasising the dependence of Roman corporations on the State, to make sharper the

1       The view given here is essentially that of Waltzing, vol. I, pp. 13 2—40. Schnorr von Carolsfeld seems to agree with him in the main, though his discussion is not altogether clear. He argues strenuously and at length (pp. 236-66) that ‘die Vereinsgründung sei im römischen Reich frei gewesen ’ (p. 264), but recognises that collegia (other than collegia tenuiorum), ‘welche keine Erlaubnis zum Zusammentritt erhalten haben’ are ‘nicht erlaubt’ (p. 238), and that the local authorities have the right (p. 264) and the duty (p. 239) of dissolving them. It seems strange to call this ‘Vereinsfreiheit’. The chief contentions seem to be (1) that those who formed harmless colleges without authorisation were not punished—this is very probable: and (2) that a college thus tolerated without being authorised possessed Rechtsfähigkeit. On this see p. 170, infra.

2 Op. cit. vol. 1, pp. 119—21.

3 Das deutsche Genossenschaftsrecht, vol. in, pp. 66—86, especially p. 82.

4 Op. cit. pp. 62, 63, 66.

contrast with the free German Genossenschaft of which he is the historian and prophet. Saleilles is a keen politician who admits the weakness of the argument¹ but cannot resist the conclusion that the Roman system was exactly like the French ‘saufcependantune difference essentielie’,¹ the hated divorce in nineteenth-century France of ‘le droit a 1’existence et le droit a la personnalit^’, ‘sous la funeste influence de la theorie de la fiction’.

Waltzing’s own arguments are entirely unconvincing. The only texts he quotes are C.I.L. vi. 2193;? D. 3. 4.1; D. 47. 22. 1.1; and Pliny, ad Traianum, 34, all of which are discussed in this chapter or the next.* In these four texts the word causa is used in speaking of authorisation, and Waltzing alleges that it means the purpose of public utility for which the college is authorised. The first is most to his purpose, and shows that it was possible for a college which in fact performed public services (as no doubt many did—those which formed fire-brigades, for example) to give this as a reason for its being allowed to exist. No one would deny that the Roman government encouraged, privileged, even created, some colleges because they were definitely useful; but it is a far cry from this to proving that no college was allowed to exist except as a servant of the State. The same holds good of Pliny’s proposed fire- brigade. The general rule in turbulent Bithynia was not merely that colleges needed authorisation, but that they were not allowed on any ground whatever.5 Clearly if the rule was to be relaxed at all, it would be for a definitely useful college; but in other provinces there was no such rule, and consequently no need of such exceptions. Even in Nicomedia, the relations of governor and fire-brigade

¹                                                                                                                                  ‘Tous ces raisonnements de textes me paraissent un peu maigres’, p. 63.                               ¹ P. 66.

3       =vi. 4416, not (as Waltzing says, vol. in, p. 217) 4419; Girard, Textes, p. 888; Bruns, Fontes, p. 388.

4       See respectively pp. 109, 148, 121, 114.

5       There were clearly none in Pliny’s day; and Waltzing gives no Bithynian inscriptions.

are very different from those of the State and the later ‘ Zwangsverbande ’. Pliny does not contemplate compelling reluctant carpenters to form a brigade; he proposes to give the Nicomedians a right they have long coveted,¹ and expects that he will have to interfere to prevent all sorts and conditions of men from flocking into the college; Trajan seems to think that no interference will be effective.

Of Waltzing’s two remaining texts, paucis admodum in causis (D. 3. 4. 1. pr.) is probably not concerned with the ius coeundiy and is discussed fully below; and in D. 47. 22. 1. 1 religionis causa clearly goes with coire, not with non prohibentury and refers to what Waltzing calls the ‘but privd’, the object of the members in wanting a college, not the ‘but public’, that of the State in permitting it. This is all the evidence he gives, and it does not seem enough to make even a single link in the required chain of proof.

We need spend no time on the question whether the decree of the Senate or the Emperor was ‘une levee d’interdiction’ or ‘un acte de creation positive’.² The Romans certainly thought of the members as creating the college, by permission, not by the orders or as the agents, of the central authority. But it is also certain that M. Saleilles’ question never occurred to them, and that they could not or would not have answered if it had.

We have still to reconcile Marcian’s statements that tenuiores could meet religionis causa with his other statement that they can only meet once a month and with Ulpian’s ¹ Sub praetextu religionis vel sub specie solvendi voti coetus illicitos nec a veteranis temptari oportet'; 4 and the professions of the Lanuvian college, as stated in the Kaputy with their practice of dining together on the 13th and 20th of August.5 This is very difficult, but attempts have been made.

¹ lure concesso, Ep. ^fin.                             ² Saleilles, p. 62.

3 D. 47. 22. 1. 1.                                        ⁴ D. 47. 11. 2.

5       C.I.L. xiv. 2112; see p. 102, n. 3, supra. For vi. 10234 and x. 444 see p. 123, infra. C.I.L. vi. 33885 (Girard, Textes, p. 891 =Bruns, Fontes, p. 399) is a collegium opificum, who were not, so far as we know, restricted in this way.

It has been supposed¹ that when Marcian says 'religionis causa coire non-prohibentur' he means that religious colleges, like burial clubs, needed no special authorisation. But this is not satisfactory, because every Roman college was, or could pretend to be, religious; and a college which professed to have religion as its only object was much more likely to be a veiled conspiracy than one which was openly a trade union. It is incredible that the collegia opificum should have been worse treated than the shadowy bodies which had no more definite object than religion. Moreover this interpretation does not touch the monthly meeting question, or explain D. 47. 11. 2.

Waltzing’s own view is that the collegia tenuiorum were only forbidden to hold business meetings more than once a month, and could meet religionis causa, in other words for dinner, as often as they pleased. He stresses ‘conferendi causa ’ in C.I.L. xiv. 2112, and with Mommsen, who hacks the passage about heroically, inserts the same words after coeant in Marcian. With these words, his view gives an intelligible meaning to both these passages and to religionis causa coire non prohibentur. It also explains the apparent inconsistency of the Lanuvians; and if it does not quite square with D. 47. 11. 2, that text really says no more than that illegal meetings are illegal.

In short, his arguments are, on the texts, unanswerable; but they do not carry conviction. Nothing short of a direct statement by a good Roman authority could entitle us to believe that a Roman burial club was allowed to meet every day if it liked, provided that subscriptions were only collected once a month. Waltzing has secured coherence of words at the expense of coherent thought. He has reconciled the texts with each other, but not with the nature of things. We are left wondering why a meeting at which subscriptions are paid should be more seditious or turbulent than any other; why a college with a subscription of a penny a day should be more dangerous than one paying ¹ Cf. Waltzing, vol. 1, p. 152.

122 half-a-crown a month; why Marcian and the Senate should have expressed themselves so very misleadingly; how Marcian’s text came to be so strangely corrupted; and above all why the Emperors who restricted so very severely the ius coeundi should have stultified their whole system by leaving this gaping loophole. We ask and there is not an answer; and we are driven to putting forward other suggestions, certainly less ingenious and probably less coherent than M. Waltzing’s, but perhaps more Roman. It is not likely that any of the following will be generally accepted; none of them explains Marcian andtheLanuvians at one stroke, as Waltzing does; but it is hoped that they are rational and fit the texts.

Dealing first with Marcian and the Kaput, it seems clear that in general collegia tenuiorum were only allowed to meet once a month. But is it not obvious that a burial club cannot always choose the date of its meetings? It was certainly the custom for the club to be present in force at the funerals of members,¹ though they do not seem to have had wakes; and it would be a typically euphemistic way of stating that this was allowed, to say 'religionis causa coire non prohibentur'. The government could snap its fingers at a conspiracy only discussed during funerals.

Or it is possible that Marcian is actually referring to Ulpian’s words. Ulpian had said:² ‘ Sub praetextu religionis vel sub specie solvendi voti coetus illicitos nec a veteranis temptari oportet.' Marcian, who may have quoted this and been mutilated by Tribonian, is careful to point out that the coetus referred to by Ulpian are forbidden because they are otherwise illicit, not because they are religious. There is no harm in a religious gathering as such, provided it does not offend against the laws applicable to all assemblies; in fact, 'religionis causa coire non prohibentur, dum tamenper hoc non fiat contra senatus consultum, quo illicita collegia arcentur.

Neither of these suggestions explains in the least the ¹ Cf. the exejuiarium in C.I.L. xiv. 2112.                                                              ¹ D. 47. 11. 2.

habits of the Lanuvians, and it is doubtful if they can be tolerably explained. We will not suggest that ‘ XIIIK. Sept’ is counted as September, not August; for in the first place it is August and not September; and moreover the collegium Aesculapii et Hygiae at Rome met on Fill K. Mart., pr. id. Mart., and XI K. Apr. (February 22nd, March 14th, and March 22nd).¹ The collegium Silvani of Capsole under Domitian is said by an inscription^{[122] [123] [124]} to meet F K. lulias and XIIK. lulias rosalibus (June 27th and 20th); but since these dates would be inconveniently close together, and we hear elsewhere 3 of the rosalia being celebrated on XIIK. lunias, this is very likely a mistake.^{[125] [126]} Even so, the law is broken by the only two other burial clubs whose ordo cenarum we know;5 and we cannot reasonably suppose that all three made mistakes in their inscriptions. We could understand an exception being made for the Em­peror’s birthday or some great religious festival, such as the joint birthday of Diana and the college, but a severe government would hardly have allowed the birthday of a human patron or benefactor to be celebrated a week later ;^[127] and the Aesculapians had their birthday dinner in Novem­ber, not March. The dates can be accounted for if we assume either that a college was allowed to break the law once a year, on any date it might choose; or that it could meet once a month and also on certain recognised festivals, such as the parentalia, the rosalia, the violaria, and the festival karae cognationis·, or that, the rule being as stated by Marcian, any college could on application get leave to meet irregularly, provided that they did not meet too

124 often. None of these suggestions really explains why, if the Lanuvians meant to meet twice in August, they wrote up without comment or qualification that they were only allowed to meet once. Perhaps the simplest explanation is that the Antonine Emperors were not much afraid of Italian burial clubs, and did not enforce the technically binding rule unless a particular club was conspicuously disobedient. The Lanuvians, being thoroughly loyal and law-abiding, knew the law would not be enforced against them, and were not afraid to write up the charter of their liberties because they were going a step beyond it: Lanu­vium was not Nicomedia. But this solution cannot be considered really satisfactory; when a law is broken by everyone the position calls for further evidence, and here it is not forthcoming.

Marcian’s next rule is also in conflict with the evidence of inscriptions. He says 'Non licet autem amplius quam unum collegium licitum habere, ut est constitutum et a divis fratribus’z^[128] and yet Waltzing gives thirty inscriptions in which a man is said to be a member of two or more colleges.³ He seems content to recognise them as thirty breaches of the law, but this is a counsel of despair which can and should be avoided. Of course he may be right; all human laws are often broken; but it is strange that those of which Marcian tells us should be so seldom observed.

In the first place,3 we can rule out all cases where a man is at once a Sevir Augustalis and a member of a trade union. If we remember the nature of the sexvirate,⁴ it must be obvious that a man could not be debarred by assuming the honourable and useful position of a Sevir, whether the Augustales of his town were corporate or not, from membership of a guild.

This still leaves a number of clear cases where a man is a member of more than one collegium opificum. To get collegia: the ivs coeundi 125 rid of these we have only to suppose with Mommsen,¹ and against Waltzing,² that Marcian is speaking here, as throughout the fragment (after the first sentence), only of burial clubs, collegia tenuiorum in the narrow sense. This does not seem an unnatural construction of his words, and the resulting rule is very reasonable. The motive for prohibiting double membership at all was no doubt a desire to limit the scope of seditious agitators ;3 the fewer people such a man was in touch with the better, and no doubt the carpenters of Nicomedia were not the only corruptible opifices. But it does not seem difficult to find a distinction; a perfectly honest man may be at once a baker and a corn-merchant, and want to join both colleges, but there is something very suspicious about a man who wants to be buried twice over. In other words, the pro­hibition would inflict a real hardship in the case of collegia opificum and not in that of burial clubs.⁴

There remain three doubtful examples of a man belong­ing to two collegia tenuiorum, or one college of each kind.5 They are C.I.L. m. 5657, 'D(is) M(anibus). Aracyntho Petroni Prisci trib(unt) laticlavi servo, collegia Herculis et Dianae Jecerunt'fi where the change of collegium to collegia would be a trifling slip for a provincial stonecutter; Waltzing, vol. hi, no. 1044, ^KP)(is) Mdanibus). Felici, ex corporae subaedianorum, item ex corporae Perseveran[tium~\ 'J where the subaediani are very obscure and probably opifices, and the Perseverantes are totally unknown; and ibid. no. 1487,⁸ * Fitulus argentarius caelator, ann(prum) xxim, hie situs est, cura conleci fabri argentar^ et conleci Caesariensium ¹ De Collegiis, p. 89, n. 7.          ¹ Op. cit. vol. 1, pp. 150, 351—4.

³               A strike counted as sedition, Waltzing, vol. m, no. 146.

⁴               This was emphasised, not withouta little judicious levity, by Mommsen, De Collegiis, pp. 89-91. In late law, no one was compelled to be a member of more than one hereditary ‘Zwangsverband’, C. Th. 13. 5. 2; 14. 3. 2.

⁵If a man could belong to two trade unions, the only objection to his

joining one union and a burial club would be that most if not all unions buried their members.                                           ⁶ =WaItzing, vol. m, no. 363.

⁷=Bullettino della Comm, archeol. comunale di Roma, 1888, p. 468.

⁸—Ephem. vii. 518.                   9 X.e.fabrum argentariorum.

126 crescent(ium). Terra tibi levis sit’, where the crescentes ought to be the junior members of the collegium fabrum argentariorum, not a separate college. But even if these three inscriptions do conflict with our rule, they may not have broken it; for they may be older than the rule itself. Marcian says it was laid down ‘et a divis fratribus' (i61—169), where *et' may equally well mean ‘as well as earlier’ or ‘as well as later’.¹ The Caesarean inscription is dated in the first century by the spelling conlecium with an w,^{[129] [130] style='font-size:11.0pt;font-family: "Times New Roman",serif;color:black'>[131]} and the others may well be earlier than 161. If so, there is no recorded breach of the law preserved by Marcian.

On the position of a college neither authorised nor suppressed there is very little evidence, and the discussion of what little there is must be postponed till we have gone into the history of corporate capacity. It will also be necessary to discuss later the very interesting and very difficult question how Christian churches were regarded by pagan lawyers. Here the questions of the ius coeundi and of corporate capacity are so closely intertwined that it is more convenient to take the churches separately after dealing with the colleges. Their legal position is so obscure that by omitting them from this chapter we do not lose any useful light on that of collegia in general.

Many colleges were no doubt dissolved at one time or another for misconduct,3 but we have no further evidence

of what happened to their property. One interesting inscription¹ tells us about the voluntary liquidation of a college for want of members. The magister collegii and his quaestors give notice that the number of resident members has fallen from fifty-four to seventeen; that no one will attend the meetings laid down in the statutes, pay his subscription, or provide dinner; that there is not enough money left to pay for any funerals; and consequently that the magister has rendered his account to the members present, restored ‘si quit eorum (Kjabuerat', and received back his cautio. Henceforward no one must regard himself as a member of the college, and no claims will be admitted for burial-money. This throws little light on what happened to the funds. Those members who have left the place seem to have lapsed from their membership, and the money is divided among those who remain, but we do not know in what proportions. One thing, however, is clear. The members have absolute power to dispose of the funds; there is no question of their being applied cy-pres, like gifts to a town for purposes illegal or obsolete;² nor can the State claim them as res nullius and derelictae. The property of the universitas does not indeed belong to the members singuli\ but neither does it belong to the State as an Anstaltsvermogen or to Nobody as a Zweckver- mbgen. It belongs to the members universi·. perhaps to past members; their subscriptions should not be perverted from their intended use, but each man may be thought to lose his right to a voice when his claim is settled and his funeraticium paid: perhaps to future members—only in this case there is to be no future; but certainly to present members. A regular meeting of the club speaks with the voice ipsius universitatis·, and the members do not feel in any way that they are despoiling a universitas for which they are agents and trustees; they are only dividing up what has always been theirs. Of course they are not

¹ C.I.L. in. 2. pp. 924-7= Waltzing, vol. in, no. 247=Bruns, Fontes, p. 393; dated a.d. 167.                                                      * Cf. D. 33. 2. 16.

 lawyers, and there was much development in the law after 167; but this inscription is one of many warnings against a too sharp antithesis imposed by modern writers on Roman minds between a body and the sum of its members.^[CXXXII]