CHAPTER III. TOWNS

If the State is the greatest of Persons and the dispenser of Personality, it is the city which is the most important unit in the history of Roman corporations.

We cannot deal here with the differences between the various kinds of municipality, civitates liberae etfoederatae, coloniae, Roman and Latin, municipia, and so on. They are interesting and important, but primarily a matter of constitutional history rather than of private law. We know very little about the position of Latin and peregrine towns in early private law; and after the Edict of Caracalla in 212 no distinctions are drawn between "omnes civitates quae sub imperio populi Romani sunt'.²

The early legal history of Italian towns is obscure. We may be sure that the abstract conception of corporate personality, the idea of the town as a being distinct from the townsmen, able to own property which they, as indi­viduals, have no right to use, and taking part through an agent or actor in commercial and legal transactions, which do not directly concern the townsmen, was not clearly thought out under the Republic. Even the classical lawyers seem to have elaborated no theory of corporations, and they are apt to lose their grasp, in a surprising way,

1              D.

2              U. 24. 28; D. 36. 1. 27, but see p. 88, n. 6, infra.

63 of the difference between the town as a corporate body and its members. From very early times the practical control exercised by the town, that is to say by the comitia or the local senate, through the magistrates, must have been recognised as in fact equivalent to dominium\ but the true legal position of the pastures, woods and buildings so administered must have been quite indeterminate. If Cicero had been cross-examined on the exact legal relation­ship between the citizens and the property of the city, he would either have broken down or have invented some completely new theory. In actual fact, when he prosecuted Verres for the most outrageous plunder of his province, he found it very hard to put the charges of theft on any strictly legal basis, and had to lay more stress on the wickedness of his conduct than on its illegality. Theft had clearly been committed, but from whom no one could say. Where there is a community which has property but is not corporate, a German scholar who is a student of Gierke is tempted to look for Genossenschaftsrecht, though Gierke himself found none at Rome. Mitteis does so,¹ and finds at any rate some traces of common rights, rights of the citizens to common, not only corporate, use of the land belonging to a town. This is indeed only to be expected. The idea of property which every member of a group is entitled to use is, if not necessarily older than true private property, at least a much simpler and more primitive idea than that of corporate personality.

Roman">Mitteis’ first example of ‘der genossenschaftliche Gedanke’ is the system of munera. It is well known that in Italian cities, as in Greek, the citizens were required to perform certain services instead of, or as well as, paying taxes.

¹      Romisches Privatrecht, pp. 342-5.

He then turns to certain passages in the Scriptores Gromatici, or writers on surveying. They here distinguish between 'silvae et pascua publica Augustinorum' and ‘silva et pascua coloniae Augustae Concordiae',* also called ‘data in tutelam territorio'f This distinction Mitteis takes to be between land owned corporately by the persona coloniae., as Frontinus calls it,3 and land over which the citizens have a ‘Nützungsrecht’. But it is hard to find this in the texts. It is true that 'in tutelam territorio' seems to mean ‘for the upkeep of the place’; for 'si quid in tutelam aut templorum publicorum aut balneorum adiungitur'* can hardly bear any other meaning. But the point emphasised is not the way the land is used, but the power given or denied to the citizens of selling it. When the Sovereign People or Caesar gave some of their land to a colony, they seem, sometimes at least, to have divided it into two parts. With one part the colonists could do in a sense what they liked. They could keep it, to supply timber for their municipal buildings or victims for their municipal sacrifices; they could let it; or they could sell it outright. The other part they could not sell or let for long terms.5 Rome did not trust her colonists to care for the interests of their suc­cessors; and we must applaud a caution which protected the pastures and woods of Italy from the short-sighted avarice of bourgeois oligarchies.

But there is here nothing that goes beyond a strict application of corporate principles.

¹ Frontinus, in Lachmann’s Römische Feldmesser, p. 54.

¹ Hyginus, Hid. p. 198,1. 1.                    ³ Cf. p. 23, supra.

4 Frontinus, p. 55,1. 1.

5       Cf. lex Coloniae Genetivae, c. 82, in Mommsen, Gesammelte Schriften, vol. 1, p. 245; Girard, Textes, p. 95; Bruns, Fontes, p. 129. could pasture their own cattle without payment on either the 'pascua Augustinorum' or the 'pascua coloniae Augustae'. Neither passage involves or implies any breach in the principles of corporate municipal ownership, although they were hardly mature in Frontinus’ time; and neither implies, any more than 'municipes' implies in D. 37· 1-3.4 and other passages already cited,¹ an idea of common ownership, or a right in the individual to use the corporate property. Both the 'pascua Augustinorum' and the 'pascua coloniae Augustae' belong to the citizens as a corporate body; but the first are more naturally attributed to the citizens because they have the right of sale which is a normal^{[59] [60]} element of ownership, and the second to the town because the land is permanently attached to the undying corporation.

Even if we did find the citizens or the decuriones enjoying a right of free pasturage on municipal land, that would be no proof that the town was not regarded as a corporate body.

So far Mittels’ evidence for even this much has been at least inconclusive, as he freely admits. He is on firmer ground with the Ager Compascuus. This is defined by Festus¹ as ‘ager relictus ad pascendum communiter vicinis', and referred to several times by the Gromatici. It seems to have been either land left over when all claims had been satisfied or land so sterile that no one would buy it;² and it was left to the common use of the ''proximi quique vicini, id est qui ea contingunt'not the whole town, apparently, but the owners of adjoining land. This is by no means the same thing as common ownership by all the municipes of all the municipal land. And though Mitteis may be right in seeing here a survival of an ill-defined right to common use of the pastures round the town, which we might expect, a priori, to find in early times, no student of Maitland* or of The Antiquary would dogmatise on such a question and such evidence.

It is possible that such a right of common pasturage was once widespread; it is certain that, if so, it had dis­appeared by the time of the classical lawyers, leaving only these few doubtful traces.

¹ Festus (Paul’s Epitome), s.v. Compascuus·, ed. Mueller, 1839, p. 40.

³ Hyginus in Lachmann’s Römische Feldmesser, p. 201,11. 13 ff.; p. 116, U. 2₃ff.

3Siculus Flaccus, ibid. p. 157, 1. 10; Hyginus, ibid. p. 117,1. 1.

4       ‘The Survival of Archaic Communities’, Collected Papers, vol. n, pp. 313-63.

Another trace of common ownership surviving in classical law has been found in the giving of security to a servus publicus. Some kinds of tutor had to give security rem salvam pupillo fore¹· and the adrogator of an impubes had similarly to give security that, in the event of death of the adrogatus still impubes, his property should be restored to those who would have taken it if he had not been adrogated? This was given, sometimes by the tutor,3 and always by the adrogator, to a serous publicus. In the same way Diocletian authorises the giving of security to a servus publicus for the restoration of his property, if and when he comes back, to a prisoner in the hands of the enemy.4 No explanation is given in any text of this breach of the rule against stipulation to benefit a third party; and it has been suggested^ that the pupil, the impubes and his heirs, and the captivus, are all regarded, wrongly, as common owners of the slave and therefore entitled to benefit by his stipulation. The true position was, no doubt, that the slave was owned corporately, whether by the populus or by a municipium, and there was no bond between him and any individual member of the public. This is recognised quite clearly by Ulpian himself,⁶ who nevertheless wrote D. 46. 6. 2, 3 and 4, and D. 27. 8. 1. 15, and by Marcian.7 Ulpian is not infallible, and we cannot trust him to keep the principles of corporate ownership firmly before his eyes. But before we attribute to a great lawyer a bad reason for a statement he does not explain, we must be sure both that it fits the facts, or might seem to him to fit the facts, and that no other reason is better and more likely to have been in his mind.

New Roman">The first objection to the idea that common ownership entitled an individual to acquire by the stipulation of a servus publicus is that Ulpian himself denies it. He says⁸ that if the pupil cannot stipulate himself and neither has nor can buy a slave, then a servus publicus must stipulate. But he adds in h. t. 4. pr.: ‘non quasi ipso iurepupillo adquirat (neque enim adquirit) sed ut utilis actio ex stipulatu detur'. If the pupil was a common owner in a legal sense, he would acquire ipso iure by the stipulation of the common slave; either in proportion to his share, if the stipulation was not expressly in his name, or the whole amount promised, if it was.¹ There would be no need for utiles actiones, which suggest of themselves that the rule is an innovation, not a survival. But Ulpian knew there was no ipso iure acquisition; if his reason for our rule was as suggested, he must have known it was a very bad reason; and that is some indication that it was not his reason at all.

In the second place, the public slave was not the only person who could take security in this way. Ulpian says in h. t. 3, * aut dare aliquem praetor debet, cui caveatur'. This is taken from his thirty-fifth book on the Edict (de tutelis'), 2 and 4 are from the seventy-ninth (de stipu- lationibus'), and we cannot be quite certain that they deal with the same case. But in 27. 8. 1. 15 Ulpian himself says: ‘si nemo est qui stipuletur, servuspublicus stipulari debet rem salvam fore pupillo, aut certe ipse magistratus', which Kruger does not mark as interpolated. And Justinian² substitutes for the servuspublicus, without comment, persona publica, hoc est tabularius, a free official. Either the idea that the pupil or impubes is an owner of the slave was lost sight of by the time of Ulpian, or it was never present, or at any rate prominent, in the minds of Roman lawyers.

M. Saleilles has woven round these texts one of his most ingenious theories. He suggests³ that there was a relation like that of an English trustee and cestui que trust between the universitas and its members ut singuli. The town or populus owns the slave in trust for its members: ‘de telle sorte que personne, sans doute, ne pouvait se

¹ Saleilles, p. 93, seems to miss this point.

¹ Inst. 1. 11. 3.                            ³ O/>. cit. pp. 89ff. dire proprietaire pro parte, mais que tous individuellement pouvaient se prevaloir, comme d’une quality personnelle, du titre de propridtaire appartenant a 1’ensemble, lorsqu’ils avaient int^ret a le faire et qu’en le faisant ils ne se met- taient pas en contradiction avec le but collectif qui con- stituait 1’affectation de la propriety sociale.... Il (the impubes'} agit a titre de beneficiaire de la propriety, et non comme titulaire pour sa part.’¹ This is a very subtle analysis, and may be the only truly logical basis for the rule. But there is no shred of evidence that the Romans ever looked at the matter in this way. And as Professor Buckland points out,^a ‘the notion of utiles actiones to third parties really interested is a late one and cannot date back to the origin of this method in tutela ’; and this view does not explain, any more than simple common ownership, the alternatives of the magistrate or his nominee and the tabularius.

It seems that the rule must be left without any logical foundation: 'non omnium quae a maioribus constituta sunt ratio reddi potest'.3 Security had to be given to someone. It could not be given to an infant pupil, or to an adrogand, whose rights would vest in the adrogator. The Romans therefore, with courage and common sense, made enforce­able a promise given to the handiest impartial and respon­sible person. This would normally be a servus publicus, but if it was more convenient for a magistrate to take his place or name a substitute no difficulty was raised. The rule was not founded on any principle, and no theories can safely be built on it.

These are all the traces that have been found of communal ownership, as opposed to corporate, by the members of a municipality. They are all obscure, vague and ill-defined; and it is clear that Roman lawyers never developed for ^{[62] [63] name="_ftnref64" title="">[64]}

70 their towns any wide and clear-cut legal system based on the idea of common ownership.

Order was only introduced into the chaos of municipal status by the idea of Personality, of a universitas, the idea that the town could have rights and duties which were not the rights and duties of its individual members. We cannot tell when or how this light dawned on the Roman lawyers. Butwe can trace their stumbling footsteps through the twilight, as they apply their new idea, which becomes clearer as they go on, to one concrete rule after another.

When the jurists first recognised that a town could have a legal Personality distinct from that of its members, they were faced by some perplexing and unaccommodating facts. The -monster whose existence had escaped their notice, the town they could not see for the townsmen, had long been taking an active part in commercial affairs. It seems certain that all towns were given on their founda­tion, or kept from the days of their sovereign independence, the practical power to own property—land, houses, slaves, and other things of all kinds—or at least to exercise over them an authority whose content was indistinguishable from ownership. They must also have been accustomed, from very early times,^[LXV] to discover the preponderant opinion and will of the community by some kind of majority vote in the assembly or the senate. In this way they appointed the magistrates, whose duties were economic as well as political; and in this way, probably before the universitas idea had taken very definite shape, they ap­pointed adores, to represent them in their commercial and legal transactions with the outside world. It is likely that all towns made contracts of various kinds through their magistrates or adores, and that there were at least some instances of manumission and succession to intestate freed­men by, legacies to, and institutions of, ‘municipes’. And

yet all the time these municipes had no footing whatever in the private law. They could not claim to be above it and manage their affairs by ius publicum; for publicum ius est quod ad statum rei Romanae special* not cuiuslibet municipii. If challenged, they would probably have called themselves common owners; but if a logical townsman had started cutting down the municipal timber, or refused to let the majority dispose of his share, or demanded that the co-ownership should be brought to an end and his share be handed over to his own use and control, the corporation would soon have changed its tune.²

At last the matter came to a head. Our scanty know­ledge of early law does not give us even material for guessing how or when, but the existence of towns as distinct subjects of private law was probably not noticed till the second or first century b.c., and the recognition that they could have or be given at least some rights, as units, may have been fairly definite by the time Julian was born. The anomaly of their old position may have been discovered and pointed out by some disinterested student; or it may have been suggested by an ingenious counsel to someone who was being sued by an actor in the name of a town. It would be a brilliant stroke for the defence to show that the actor did not know who was his principal, who was the creditor for whom he claimed to speak. Everyone must admit, when pressed, that the debt was not, in any ordinary sense, to the municipes\ it could not be reduced by paying his proportionate share to any municeps who happened to present himself. Once this was made clear, the judge had only two courses open to him: either he must absolve the defendant, who clearly

¹               Inst. 1. 1. 4=D. 1. 1. 1. 2.

³               It appears from the Gaius fragments published by Arangio-Ruiz in 1933 {Pubblicazioni della Societa Italiano per la ricerca del Papiri greet e latini in Egitto, No. 1182, Firenze, p. 9) that in the oldest Roman form of common ownership any co-owner could validly manumit a common slave or mancipate common property. Any application of this principle to municipal affairs must have led to chaos at once.

72 owed money, though no one could say who had lent it him; or he must recognise that a town could have rights which were not the rights of its individual members. Very likely judges were at first conservative, and a few rogues may have succeeded in defrauding the towns, their creditors. But at last some iudex or praetor was encouraged by his jurist advisers to take the step which should have preserved his name to all posterity; he recognised a right in the town as a body distinct from its members, and ordered payment to its actor \ and there was juristic Personality.

This may have been the way in which the idea of a universitas entered the law, or it may not. But it is certain that at some unknown date lawyers began to see that there was in the field of private law a peculiar kind of being which exercised rights and acknowledged duties although it was not a 'persona'., still less a Roman citizen. The question must soon have been raised, gradually and ten­tatively, we may suppose, what rights and duties these beings were capable of. They probably exercised in practice some elements of the commercium open only to Roman citizens and a favoured few outsiders; on the other hand they were clearly incapable of connubium (not having the precedent of Venice), and so far as we know they never tried to obtain patria potestas by adopting. Thus as they could neither be put on a level in all respects with Roman citizens, nor be denied rights altogether, it was necessary to deal with each right separately, and either grant or withhold it. It must not be supposed that any lawyer set himself to make a coherent general system of juristic Personality. It is much more likely that each question was left open till an actual case made a solution necessary; though there was no doubt discussion among lawyers on points likely to arise, and there may have been books written on the subject, although we do not hear of any. When the jurists were driven by a litigant to decide definitely whether a town was or was not capable of a particular right, their general practice seems to have been, as we might expect,

to allow those rights, such as ownership, which were constantly exercised by all municipalities, and could not be taken away without overturning the whole structure of local government—to allow these, and find for them such logical basis as they could; and on the other hand to deny, or at least postpone, those rights, such as testamenti Jactio passiva, which had only occasionally been exercised and could be forgone without any great harm being done.

We must now give some account of the solutions gradually reached of the various problems raised by juristic Personality. The whole matter is complicated by the in­trusions of administrative law.¹ lus publicum concerned only the populus Romanus·, but the towns conquered by Rome were never wholly deprived of publicistic privileges, and the coloniae that she founded were regarded, to some extent, as parts rather than subjects of the sovereign people. We cannot deal here with the complex admini­stration of the very various municipalities. Our business is with the towns as subjects of private law, and publicistic rules will only be referred to when they illuminate or obscure the position at private law.

The first essential for a juristic Person is the right to be represented in a court of law. No right is of much value unless it can be claimed and protected in court. A municipality can obviously not appear in person; therefore it was necessary above all that it should be recognised to have the right of appointing an actor ^lper quern quod communiter agi fierique oporteat agatur fiaf,² The actor must be allowed to sue in the town’s name and in the town’s name to receive payment; and to protect the town’s credit and creditors, it must also be suable in the person of an actor.

This was impossible under the legis actio, when there was no representation; this is the most definite reason for thinking no bodies were recognised as corporate by the private law before the lex Aebutia. But under the formulary ¹ Cf. Mitteis, pp. 381 ff.                ² D. 3. 4. 1. 1. system, there was no such obstacle. If an individual could by mandate, or even before mandate was recognised, appoint a cognitor or procurator to take his place in court, there was no reason why a town, or more exactly a town council, the or do or curia,¹ should not appoint a repre­sentative by the ordinary method of a majority vote. This had no doubt become a regular practice before the uni­versitas idea began to be thought of; and when it was seen that the actor's true principal was not the municipes, though the jurists follow the praetor in using that term/ but the municipium, the universitas, no objection seems to have been raised. Our authorities^ all treat the institution as a matter of course, and any dispute there may have been seems to have died down before the classical period.

There are a large number of texts dealing with the actor's position; and they have been most usefully collected by the judicious diligence of M. Paul Ramadier/ from whom most of the following statements are taken. He does not venture on a precise date for the appearance of the actor in the praetor’s Edict, but places it with confidence between the lex Aebutia and Julian’s codification; thinks it was probably before 51 b.c.;5 and suggests that it may have been connected with the settlement after the Social War. On the position of the rules in the Edict, he agrees with Lenel^{[66] [67] [68] [69] [70] [71]} that there were two rubrics, ‘ Quibus municipum nomine agere liceat' and ‘ Qyod adversus municipes agatur', which seems highly probable; and that there was another, separate, rubric dealing with other corporate bodies, and of a later date.¹

The praetor is not likely to have prescribed any particular way of appointing an actor., since this would depend on the constitution of each town. He probably offered an action to any agent who could show he was duly accredited;³ but he may have made the rule that no actor could be appointed permanently to bring any action that might be required—he must be specially appointed or reappointed for each case.³ We do in fact hear of more than one mode of appointment. The actor might be chosen by a popular vote,⁴ or nominated by the duumvirs under the senate’s instructions ;5 but the normal procedure was a vote of the senate, the decuriones, a quorum of two-thirds having to be present.⁶ The person selected must be a free man, whereas the town’s agent in commercial affairs, also called actor, was very often a slave. He could not appoint a deputy?

The actor's position in court was not quite like that of any other representative, though it has characteristic traits of both the cognitor and the tutor. Ulpian expressly tells us that he brings his principal’s right into issue, rendering him (or rather it) liable to the exceptio ret iudicatae.^ This

1       Cf. p. 45, supra.

2       Not to an unauthorised negotiorum gestor, D. 3. 4. 3. In D. 3. 5. 7. 1 a negotiorum gestor sues successfully on behalf of a civitas, per obreptionem; the magistrate must have failed to verify his credentials.

3       D. 3. 4. 6. 1. Albertario has given reason to believe that the Greek

syndicus, or permanent representative, appears late in Roman law, and in the Digest only byinterpolation. ^>ze.Bull.lst.dir.rom.\and we are told by Ulpian¹ and Paul^{[72] [73] [74] [75]} that he does not, unless there is doubt about his appointment. It is probable, as Keller suggests and Ramadier denies, that the actor., like other representatives, did not at first bring his principal’s right into issue; Ramadier’s argument is too logical, and he underrates the caution and conservatism of early law; but there is no reason to doubt that the development was complete by Paul’s day. The actio iudicati is given, as we should expect, to the city, not to the actor personally·^ but the actor is missus in possessionemf They are so completely identified that the actor can offer, and must have been allowed to take, the iusiurandum neces­sarium.^

Actions could be brought against towns as well as by them.^{[76] [77] [78] [79]} It may have been possible to make the in ius vocatio against the duumviri! or other permanent officials; but the actual defence was conducted by a specially appointed actor? A text of Javolenus9 implies that a volunteer could.not defend; but Gaius tells us that an extraneus may defend a universitas.^{[80] [81]} There seems no reason for a difference,¹¹ and as Javolenus is not very explicit, it is possible that an unauthorised person could here as in other cases take the defence on himself. No

doubt the municipal authorities would see to it that the question did not often arise. A volunteer would certainly have to give security iudicatum solvi; and there is no reason to suppose, as M. Ramadier seems to, that even the regu­larly appointed actor was an exception to the rule 'nemo alienae rei sine satisdatione defensor idoneus intellegitur'? It is clear on the other hand that the actio iudicati was given against, as it was to, the town and not the actor.^{[82] [83]} We seem also to have traces of edictal rules governing execution against towns, for besides the text of JavolenusS already referred to we find in the appropriate books of the edictal commentaries discussions of bona civitatium,^{[84] [85]} for which no other relevance is suggested. Lenel and Ramadier differ on the form of missio in bona civitatis.5 All Javolenus says is 'Civitates si per eos qui res earum administrant non defen­duntur nec quicquam est corporale rei publicae quod possideatur, per actiones debitorum civitatis agentibus satisfieri oportet.' Lenel makes this refer to missio in res singulas, Ramadier to venditio universorum bonorum. The one is supported by the words quicquam corporale, by the discussion of what are bona civitatis, and by common sense; the other by the strong Roman dislike of piecemeal execution against the property. It seems likely that, whichever system may have prevailed in early times, the Romans cannot long have tolerated the inconvenience of holding in theory, still less of obeying in practice, the rule that failure to pay any the most trifling debt must involve a town in bankruptcy.^[86]

New Roman">A town was also allowed restitutio in integrum, at least in late law, like a minor; but the texts are obscure.7

Such are the most important peculiarities that we know or have evidence for believing about the actor. The rest is guess-work; but he must have been able to bring and defend all the actions by which a town’s rights had to be protected or could be attacked: ubi ius ibi remedium.

The first and most important substantive right is owner­ship, carrying with it the right to vindicate and the right to acquire. This can never have been withheld in practice from towns, but we hear echoes of a dispute on the subject. Many texts speak of the property of a town, bona civitatis·,¹ and we hear, both from jurists and from inscriptions, of vindication,² acquisition^ and alienation.* All such transactions needed special or general authorisation by a decree of the decuriones·, but there seems no particular difficulty about machinery. Vindicatio would be brought by the free actor we have discussed. Quiritarian ownership could presumably be acquired by mancipation through a slave; the form ‘hanc rem ex iure Quiritium municipii Flaw M.alacitani domini met esse aio eaque ei empta esto hoc aere aeneaque libra' seems quite satisfactory.5 Dominium of res nec mancipi, and bonitary ownership, leading to usucapio,

1       E.g. D. 50. 16. 15.

2       D. 50. 10. 5. 1; D. 3. 5. 7. I; G. 3. 145 (praedium auferatur).

3       D. 10. 4. 7. 3; D. 41. 2. 2.

4       D. 50. 8. 5. 1; D. 50. 9. 4.

5       Cf. Pliny, Ep. 7. 18. Saleilles, p. 97, says that some things, such as a forum or basilica, could not form part of a slave’s peculium and therefore could not be acquired through him. But there seem to be here two mis­conceptions. In the first place, there was no need for an authorised or ratified acquisition (and a town could certainly give orders to its slaves) to enter the peculium at all: see Buckland, Slavery, pp. 131, 197. Nerva says ‘peculiariter' in D. 41. 2. 1. 22, because he is talking of possession, not ownership. Secondly, there seems no reason to think such things could not be ‘peculiar’ if it was necessary. Saleilles thinks, following Ihering, that they originally belonged to nobody, the citizens having only a right to use them. But the change from vague municipal control to definite ownership would not be by any process of private law, but either by a gradual clarifying of thought or by a decree of the Senate. And once it was recognised that ‘public’ municipal property belonged to the town, all subsequent acquisitions of land or buildings must have been from private owners who could sell to a slave as well as to anyone else.

of res mancipi, could always be acquired per servumf and per liberam personam when possession could? A duly authorised slave could probably alienate the property of a town by mancipation if, as seems likely, slaves could mancipate at all? Alienation per liberam personam probably followed the principles of acquisition. All rules might be modified by the exercise of publicistic privileges, and the various rights here included, though they may never have been denied, were probably not expressly recognised till cases gradually arose where a definite ruling was necessary.⁴ One controversy we hear of. There was at one time doubt about the acquiring of

possession by a town.

Dominium or at least bonitary ownership was a necessity, but 'possessio' was little more than a convenience in Roman law, being a purely provisional right. The posses­sory interdicts saved time and expense, but an honest possessor usually had an action to fall back on. This made possession a good target for a speculative jurist; if he could show that the claim of towns to possession and interdicts was illogical, no great harm would be done. We accordingly find Paul 5 saying 'Municipes per se nihil possidere possunt, quia universi consentire non possunt. Forum autem et basilicam hisque similia non possident, sed promiscue his utuntur.' Possession was recognised by Paul’s day as requiring corpus and animus·, and it was arguable that a town could have neither. Clearly the whole population, universi municipes, could not be in physical occupation at the same time of any part of its property; therefore they ¹ D. 6. 2. 9. 6.                                      ² D. 41. 2. 2; D. 10. 4. 7. 3.

3 Cf. Mitteis, p. 208; Buckland, 34 L.Q.R., p. 372.

4       The texts differ on the usucapion of town property. D. 50. 4. 1. 4 speaks of curator cuius officio usucapiones interpellantur·, D. 41. 3. 9 excepts from usucapion res publicae populi Romani et civitatium. One text may be interpolated, or a very natural distinction may be drawn between res publicae, things public by nature, such as the forum and basilica referred to above, once they were dedicated to public use, and things such as cattle and tools which only happened to be the town’s property at the moment. Mommsen emends D. 50. 4. 1. 4 so that it refers to bona privatorum.

5 D. 41. 2. 1. 22.

could not possess, corpore, per se.¹ Could they have the necessary animus? This was not so clear; but it seemed that there could be no animus municipum without a consent of all, a unanimous vote of all the municipes, and that was not practically possible.

To our minds, this is a mistaken way of looking at the problem. Even if all the municipes had met together, they would not have been the municipium; for a corporation, like a man, is something other than the sum of its members; and on the contrary, a corporation consents, or is deemed by the law to consent, if consent is expressed by the law­fully constituted authority. But the confusion is intensely Roman. We might suppose Paul was here trying to sup­port his attack by a theory in which he did not really believe. But other passages,^{[87] [88] [89]} and the regular use of 'municipes' to denote the corporation,3 show the confusion was universal. The real question was: How can an abstract being have either physical control of anything, or a will ? But the difficulty that presented itself to Paul and was presented by him to his contemporaries was that stated above. When he says the municipes do not possess their buildings, but use them promiscuously, he must not be accused of leanings towards Genossenschaftsrecht; he only means that the buildings are not possessed, corpore, by such municipes as happen to be in them.

The only answer Paul found to his problem in the older jurists seemed a weak one: ‘ sed Nerva filius ait per servum quae peculiariter adquisierint etpossidere et usucapere posse'.^[90] The retort is obvious: ‘ sed quidam contra putant, quoniam ipsos servos non possideant'.5 But Nerva had the root of the matter. Every town owned slaves, and had owned them before possession had ever been defined; and a slave who belonged to a town, and acted under the authorities’ orders, was well able to exercise the physical control needed for possession. So indeed could a free actor or procurator, though not as early as Nerva.^[91] Once this prac­tical difficulty of corpus had been surmounted, the abstract question whether animus could properly be attributed to a town was tacitly dropped. Every town had always had the habit of expressing its will, real or fictitious, in public affairs such as the election of magistrates: 'refertur ad universos quod publice fit per maiorem partem ’? A vote of the assembly or the town council, or even an order of a municipal magistrate, could reasonably be regarded, for practical purposes, as the animus municipum. We have no further theoretical discussion; but Ulpian tells us: ‘Sed hoc iure utimur, ut et possidere et usucapere municipes possint, idque'i eis et per servum et per liberam personam* adquiratur' ;5 ‘ et possidere et usucapere eos posse constat',⁶ Paul’s attack had conclusively failed.

The contractual powers of towns are of little interest for the law of Personality. They seem to have been allowed to enter into any kind of contract they found desirable; there is no trace of a stand being made against them on any point. There were certain complications in respect of agency, as an individual could not appoint a true agent for contract, and a town could only act through a repre­sentative. But in informal contracts a decree of the decuriones could be regarded as a consent by the town itself. We hear of a town lending? and borrowing; the town is said to be liable only for ad utilitatem versa, the representatives in full.⁸ It could become entitled through the stipulations of a slave¹ or a free actor? No text seems to affirm or deny the liability of a town on the stipulatory promise of its actor., slave or free. Buying and selling were of course common,3 but the distinction between publicistic transactions and those governed by the private law is much blurred here; it would very likely be equally possible in a given case to bring an ordinary action or invoke administrative authority. The same is true of letting and hiring.⁴ The town seems to have been as fully bound and entitled by its contracts as the principal of any other agent; but there is no technical discussion. The responsible official was usually expected to make good to the town any loss arising out of his contracts/ but the relations of officials to the ordo are governed by ius -publicum. We do not find adores or curatores suing or being sued personally on the town’s contracts made through them.⁶ Constitutum authorised representative of a town should depend on what that representa­tive does with the money. The rule is reasonable only when the representative is not in fact duly authorised, but the text does not-so limit it. Perhaps the reasoning may be that since the contract of mutuum is created by delivery, and the money is handed over to the actor, not to the town, the contract is made only with him; so that a condictio against the town can only be quasi- contractual and requires proof of enrichment.

C. 11. 40. pr. may mean that the cautio of a servus publicus confirmed by a curator is binding either on the town or on the curator.

¹               D. 45. 3. 3 (puto·. Ulpian’s view, presumably disputed); D. 3. 4. 10; D. 22. 1. 11. 1.

²D. 3. 4.1 o (actio utilis on praetorian stipulations). Cf. D.22.1. n.pr.

³               D. 50. 8. 5. 1; D. 18. 1. 50; C. 11. 32. 1; C.I.L, ix. 3513; arg. lex Coloniae Genetivae luliae, 82 (Girard, Textes, p. 95; Bruns, Fontes, p. 129); Frontinus, p. 54 (in Lachmann’s Feldmesser).

⁴               D. 50. 8. 2. 1; h. t. 5. 1; C. 11. 32. 2; lex Coloniae Genetivae luliae, loc. cit.; C.I.L. ix. 3513. Unspecified contract, D. 44. 7. 35. 1.

⁵               SeeD. 3. 5. 29; D. 50. 8. 2. 4; h.t. 4; h.t. 5. pr., 3; h.t. 8, 11, 12, 13; C. 11. 40. 1. 2.

⁶In D. 50. 8. 5. 1 an administrator is liable after his term of office only because he has taken over the debt by novation. He would not be liable on a constitutum, which does not, in this sense, novate; or apparently on a sale or lease (ibid.). But in D. 15. 4. 4 a praepositus administrationi is liable quod iussu on a slave’s contract authorised by him. No doubt it was easier to regard the town as ‘itselF making consensual contracts, where consent could be expressed in any way, and a decree of the ordo could fairly be regarded as a consent of the town, than verbal contracts, where the contracting parties. is dealt with in two difficult texts. One¹ appears to say that an administrator who makes a constitutum to pay a town’s debts is not personally liable; the other,² that con­stitutum to an class=a1>actor to pay him money owed to a town gives the actor a right to sue in his own name,3 without destroying the right of the town,⁴ and constitutum to the actor to pay the town gives the town an actio utilis.^

must meet and speak. The English formality of sealing is admirably adapted for the use of corporations: the Roman formality of oral stipulation was not.

¹                                                                                                                                       D. 50. 8. 5. i.   ² D. 13. 5. 5. 7-9.

³ D. 13. 5. 5. 7.                                ⁴ D. 13. 5. 5. 8; see next note.

5       D. 13. 5. 5. 9. This text calls for some comment. In § 6 Ulpian quotes Julian as saying 'procuratori constitui posse', and Pomponius as explaining that this refers to a promise made to the procurator to pay him, not his dominus. The original debt was presumably to the dominus·, if it was to the procurator, no question would arise. It is thus only a particular case of the general rule 'quod tibi debetur si mihi constituatur, debetur' (§ 2); and does not give the dominus an action on constitutum to his procurator, or make an exception to the rule in § 5: 'si mihi constitueris Sempronio te soluturum, non teneberis? Immediately after this we read (§ 7) 'Item tutori pupilli constitui potest et actori municipum et curatori furiosi (vel adulescentis Mo.)'. After § 6, this can only mean ‘A promise made to a tutor, actor, or curator to pay him money owed to his pupillus, municipes, or furiosus, gives the tutor, actor, or curator a right of action in his own name’. Then § 9 is, as it appears to be, a tentative innovation: ‘Si actori municipum vel tutori pupilli vel curatori furiosi vel adulescentis ita constituatur municipibus solvi vel pupillo velfurioso vel adulescenti, utilitatis gratia puto dandam municipibus vel pupillo velfurioso vel adulescenti utilem actionem': ‘If a promise is made to the actor of a town, the tutor of a pupillus, or the curator of a lunatic or minor, that a debt shall be paid (at a particular time or place) to the town, the pupillus, the lunatic, or the minor, then I think that, for the sake of convenience, an analogous action should be given to the town, the pupillus, the lunatic or the minor.’

This seems quite straightforward, and actiones utiles available to interested third parties, though rare, were not unknown in late classical law; cf. D. 27. 3. 1. 13, also concerned with a tutor.

But if this is the right interpretation of §§ 7 and 9, how are we to explain § 8: 'sedet ipsi constituentes tenebuntur' ? Mitteis evidently takes the subjects ofthis sentence to be the tutor,actor and curator (p. 383,n. 21). Itmustthen mean: ‘moreover they will themselves be liable if they make a constitutum (instead of receiving one)’, which contradicts the rule given above, from D. 50. 8. 5. 1. Mitteis holds that tutores, actores, and curatores were never personally liable on contracts they made as such, except in case of stipulation: and ‘can explain § 8 only as an exceptional decision for constitutum'. This is unsatisfactory, and can be avoided by taking ipsi as dative (or reading ipsis). It seems reasonable to suppose that as in § 6 the original debt was

There were special rules for -pollicitatio to a town.¹ This was an informal promise to give,² often to erect a building or statue,3 sometimes to endow games.⁴ Such a promise, even if accepted, would be invalid between individuals till Justinian enforced pacta donationis·, but TrajanS made it binding in favour of a civitas if there was a quid pro quo, especially if the promise was given ob honorem, not then thought corrupt or improper; and later Emperors even where there was no quid pro quo if it was promised for the relief of a public calamity,⁶ or if the work had been begun.? An impoverished promisor could get some reduction of liability if there was no consideration, and his heirs need pay only a fraction of the promised sum.⁸

Apart from these concessions, there were no special rules for gifts to towns. Gifts of public property by the decuriones were indeed forbidden, except for such nominal gifts as the salaria of doctors; evidently because such a practice must lead to corruption—ambitiosa decretal But Mitteis must look at the texts through very German spectacles to see ‘besonders strenge Regeln’ for ‘auch die Annahme von Liberalitäten’.¹⁰ The texts he cites¹¹ do not reveal these strict rules. They deal with the question, not whether or how a town could accept gifts, but whether a statue erected in a public place automatically becomes the town’s property; and, if not, how it can be protected against removal either by the donor, by thieves, or by probably to the dominus, so here it was to the pupillus, the municipes, or the furiosus. 'Tenebuntur' can mean ‘will remain liable’ quite as well as ‘will become liable’; and we may translate ‘but the constituentes will also remain liable to the pupillus himself (or the municipes or furiosus, as the case may be)’. The constitutum does not novate the old debt.

¹ D. 50. 12, De Pollicitationibus.

‘ H. t.  3. pr.  Money, h. t.  i.   pr.;   h. t. 6. I;  h. t. 11.

³ H. t.  i. pr.,   3, 5; h. t. 8.                                    ⁴ H. t.   10.

³ H. t.  14.                                                            ⁶ H. t.   4, 7.

⁷ H. t.   I. 2—5; h. t. 3. pr.; h.  t. 9,   11      and probably 14.

⁸ H. t. 9; and so probably h. t. 14, inserting a 'non' with Mommsen.

5                                                                                        D. 50. 9. 4; Pliny, Ep. ad Trai. 110.         ¹⁰ Op. cit. p. 384/.

¹¹ D. 44. i. 23; D. 41. i. 41; D. 43. 24. 11. 1; D. 42. 5. 29. creditors of the man in whose honour it was put up. The jurists differ on the question of ownership,¹ but all agree that the statues must be kept in their place by all possible actions and interdicts. The disagreement and the con­clusion show it is not acquisition but protection they are thinking of. This is all Mitteis’ evidence; and it leaves us free to believe that gifts to towns were treated not less but more favourably than gifts in general.

Of iura in re attaching to towns we hear little. Javolenus tells us^{[92] [93] [94]} that a municipium could acquire a praedial servitude through a slave, probably by mancipation. There are some texts on usufruct to a town. It was questioned, because 'periculum esse videbatur ne perpetuus fieret, quia neque morte nec facile capitis deminutione^ periturus est, qua ratione proprietas inutilis esset futura semper abscedente usu fructu ’,^{[95] [96]} but allowed, in texts attributed to Gaius, for a period of a hundred years, 'qui finis vitae longissimus esset’.5 Some Italian writers hold that it was not allowed at all in classical law and that these passages are interpolated.^[97] The later iura in re, emphyteusis and superficies were commonly, perhaps first, granted by towns.¹

We have no very clear information about the manu­mission of municipal slaves. The jurists speak of manu­mission by towns, and of their freedmen,² but they do not say when it was first allowed or how it was done. Our earliest record of such manumission is in Varro, L.L. 8. 83. The text is obscure and corrupt, but must refer to slaves manumitted by municipalities under the Republic. Dio- cletian3 speaks of a law 'vetti libici', which Mommsen emends to ‘veteris rei publicae', authorising or regulating manumission by towns in Italy or the status of slaves so manumitted. But this reference is worth very little. We do not know what the law said. And Mommsen’s con­jecture is very doubtful; Waltzing⁴ boldly puts the law under Trajan, apparently because we hear of a Vettius Bolanus in his reign. The one useful fact in the text is that this law, which at any rate dealt with manumission by towns from some aspect, was extended to the provinces in a.d. 129, proving that it was then possible. Even this we knew from Varro and might have guessed. How far it was regarded as publicistic, how far subjected to private law, we cannot tell. We learn from the Code that the means of manumission was a decree of the ordo, with the consent of the provincial governor.5 There may at least sometimes have been some act of a magistrate carrying out the decree.⁶

We hear more about the commercium mortis causa, or testamenti factio. In this case there was a special obstacle, which, if it was once noticed, could only be overcome by legislation. It was a fixed principle of Roman law that

¹  Cf. G. 3. 145 and Inst. 3. 24. 3.

²  D. 38. 16. 3. 6; D. 40. 3. 2; D. 38. 3; U. 22. 5.

³  C. 7. 9. 3.

⁴  Corporations professionnelles, vol. 11, p. 455.

⁵  C. 7. 9. 1, 2; C. 11. 37. 1.

⁶Varro, loc. cit. So for servi populi Romani, reff. in Buckland, Slavery, p. 590, n. 3.

no ¹ incerta -persona could be instituted heir or receive legacies. It does not seem from the texts that the Romans themselves had any very clear idea what they meant by uncertainty; but Ulpian, or whoever wrote the Liber Singularis Regular urn, lays down quite definitely that a town is an 'incertum corpus' and therefore excluded.¹ He adds the further not very good reason ' neque cernere uni­versi neque pro herede gerere possunt, ut heredes fiant'. This is an example of the common Roman confusion between the universitas and its members. When Ulpian says ''universi' he does not mean ‘as a corporation’, any more than the L.N.E.R. implies corporate character by the notice in its restaurant cars: ‘Smoking is not permitted in this com­partment until after dinner, and then only when the whole of the passengers concur.’² For Ulpian, ‘the whole of the municipes' have been instituted. This is void, in the first place, because the testator cannot have known in any sense all the members of the town—even without counting the future members who are part of the universitas but probably not in Ulpian’s mind. Then there is the second objection, that if the whole of the citizens have been instituted, the whole of the citizens must enter; which is obviously impossible. This is pretty clearly what the writer means; and if the writer is Ulpian, it is remarkable that the ideas of so great a lawyer at so late a date should be so crude. Whether Ulpian or not, he was familiar with the works of Gaius,3 and for Gaius,⁴ and Ulpian in his better moments,5 the civitas was not ‘all the citizens’ but a universitas or what we should call a corporate body. This body could quite well enter if it was allowed to; an author­ised slave could certainly 'pro herede gerere' and probably

1       U. 22. 5. Cf. p. 80, supra, and Chapter ix, infra.

2       For universi meaning ‘all’, or ‘all together’, compare D. 42. 8. 17. 1 ‘universas res suas tradidit' and Caesar, De Bello Gallico, 5. 44 ‘in ilium universi tela coniciunt'.

3       See Buckland, Jan. 1922, p. 38, and April 1924, p. 185.

4       E.g. G. 2. 11; D. 3. 4. 1.

5       D. 3. 4. 7. 1; D. 2. 4. 10. 4; D. 3. 4. 2; D. 48. 18. 1. 7.

‘cern’.¹ But it was not allowed; the question of entry seldom arose in practice in classical law, because all collective Persons were excluded as uncertain. To begin with they were not -personae at all, and so could not be certae personae·, and moreover they were composed of personae quas ‘per incertam opinionem animo suo testator subicit'.* It did not really follow that they were incerta corpora and we see nothing uncertain about corporations nowadays; but the idea is not unnatural.

Exceptions were however made to the rule of exclusion from commercium mortis causa, some of them long before Ulpian’s time. The first may have been for fideicommissa. In the time of Augustus a testator could no more leave a hereditas or a legacy to a city or a college than he could to a cat. But a fideicommissum was not at first regarded as a gift at all, but as a duty imposed on someone.3 A request to provide cats’ meat would have been valid; and so would a request to transfer property to, or build a hospital for, a municipality. Hadrian forbade fideicommissa in favour of incertae personae ;⁴ but this did not cover towns, which were not personae at all, certae or incertae. Moreover by then Nerva had sanctioned legacies to municipia,5 and anyone who could take a legacy could benefit by a fidei­commissum, at least of single things.⁶ Legacies were less

¹ D. 29.2.26. Cf. Buckland, ‘ Cretio and connected topics ’ in Tijdschrift voor Rechtsgeschiedenis, vol. in, 1922, p. 248.

¹ G. 2. 238. No doubt politics had a good deal to do with it.

³ Compare the English case In re Dean, 41 Ch. Div. 552.

⁴  G. 2. 287.

⁵               U. 24. 28: 'Civitatibus omnibus, quae sub imperio populi Romani sunt, legari potest: idque a divo Nerva introductum,postea a senatu auctore Hadriano diligentius constitutum est? They were subjectio the lex Falcidia (D. 35. 2. 1. 5) and usually sub modo (D. 30. ii7;D. 33.1.21. 3),and were ultimately allowed for vici (D. 30. 73. 1) and partes civitatis (D. 30. 32. 2). A con­dition si iurassent on a legacy municipibus was satisfied by an oath of the officials, D. 35. r. 97. But a legacy per praeceptionem, always closely linked with hereditas, was not allowed: Pliny, Ep. 5. 7. 1.

⁶               Paul tells us (D. 36. 1. 27) that a Senatusconsultum Apronianum, probably of a.d. 117 or 123, declared a fideicommissum hereditatis valid, like other fideicommissa, not void as a hereditas: 'Omnibus civitatibus, quae solemn than institutions, and had by now become less formal; so it is not surprising that the rule was broken down in the one case and not in the other. It has indeed been suggested that legacies were allowed to Roman and Latin towns even under the Republic (‘von alters her’),¹ and two examples are quoted from the early Empire? Nerva is supposed only to have extended the right to peregrine towns. This view does not seem to fit very well what we know of early Roman feeling about the formalities of wills. It involves a strained interpretation of U. 24. 28. And the examples can be explained either as privilegia or as legacies not legally binding but paid without demur by heirs who respected the testator’s wishes. The dis­tinguished author of the suggestion quotes in support of it G. 2. 195: ‘(Pius) cum legatus fuisset Latinus per vindica­tionem coloniae, Deliberent, inquit, decuriones an ad se velint pertinere, proinde ac si uni legatus esset' The last clause shows the doubt was about the effect of legacy to a colonia,

sub imperio populi Romani sunt, restitui debere et posse hereditatem fideicom­mittam Apronianum senatus consultum iubet. Sed et actiones in eas placuit ex Trebelliano transferri: sed municipes ad eas admittunturThe last clause is difficult, and may be a gloss. It seems to mean ‘but the townsmen (if creditors of the estate) are allowed to bring actions’ (against the town, under the 8.C. Trebellianum, although you might not expect a municeps to sue the municipes of whom he is one—hence sedf This is a reasonable and relevant statement, though awkwardly expressed. A conceivable alternative would be to take eat to mean, not actiones, but hereditatesfideicommissas·, and con­trast municipes with civitatibus. Such a contrast is possible if Paul wrote this before the Edict of Caracalla, scarcely if he or a glossator wrote it after that date; compare Ulpian in D. 50. 1. 1. 1: ‘proprie quidem municipes appellantur muneris participes, recepti in civitatem ut munera nobiscum facerent: sed nunc abusive municipes dicimus suae cuiusque civitatis cives'’. It is certainly rare, to say the least, for civitas and municipes to occur as synonyms in the same fragment; D. 6. 3. 1. 1 seems to be an example. If this contrast is intended here, civitates must be the wider term, since it was applied first and mainly to foreign communities. We may then para­phrase: ‘all communities subject to the Roman empire, in the words of the senatusconsult, may take inheritances by way offideicommissum·, and the rule applies to Roman and Italian towns as well as to subject and allied com­munities’. For the main rule, see also U. 22. 5, D. 36.4.12 andD. 38. 3.1.1.

¹ Mitteis, p. 377.                  ² C.I.L. x. 5056; Suet. Tib. 31. not about the possibility of bequeathing a Latin.¹ We cannot tell what the particular problem was. Mitteis argues that there could not have been anything to ask the Emperor about if the matter had been ‘ diligentius constitutum' by Hadrian·/ therefore it was not the Legats­fähigkeit of coloniae that Hadrian regulated and Nerva introduced; therefore this existed before Nerva; and this is an argument for the ‘Ursprünglichkeit der Legats­fähigkeit der römischen und lateinischen Munizipien’. The reasoning is highly ingenious, but does not carry conviction: Gaius’ statement is too obscure to provide the necessary basis.

There was another relaxation for towns of the ban on inheritance by beings other than personae^ which may be older than fideicommissa, but was probably not thought out so soon, and was always confined to a narrow field. We have seen that towns could probably manumit even under the Republic; and one of the most valued privileges of a patron was the right to succeed, given certain con­ditions, either under the will or on the intestacy of his freedman. This right seems not to have been contested.3 It may at first have been thought of publicistically; we are told in another connection that ‘ testamenti factio non privatim sed publici iuris est'.^{[98] [99] [100] [101]} The only doubt seems to have been whether a town could claim bonorum possessio. Ulpian5 says it is doubted because the municipes ' con­sentire non possunt', the same confusion as in U. 22. 5. But he concludes that they can claim,⁶ a decree of the curia being no doubt regarded as consent. The usual course seems to have been for the ordo to decide whether to accept or not, and, if they accepted, to appoint an actor to claim bonorum possessio from the praetor. If no actor appeared, the praetor could take the decree as a claim in itself and make his award accordingly/

We do not know how long the general rule against in­stituting towns lasted. It is sometimes said to have been abolished by Leo in 469, and it is true that a constitution df that year¹ is the earliest surviving statement that towns can inherit. But Schnorr von Carolsfeld^{[102] [103]} has pointed out that this text is only an extract from a constitution given at greater length elsewhere,3 which seems to assume that towns can inherit and lays down rules for the management of their property whether acquired by inheritance or in any other way. It is possible that Leo is conferring a new right, more probable either that there was earlier legisla­tion, now lost, or that the practice of the courts had gradu­ally sloughed off the irrational doctrine of the Regulae.*

For the delictal responsibility of towns there is little evidence. We hear of them only in connection with the praetorian delicts, and that only once or twice. InD.4.2.9.1 Ulpian says of the edict S^uod metus causa: ‘ sive singularis sit persona quae metum intulit vel populus vel curia vel collegium vel corpus, huic edicto locus eric'.5 But this does not mean that an action lies against the offending corpus, but that anyone who is prejudiced by an act done under duress can get restitutio in integrum, no matter what person or persons it may have been that frightened him. The rule is expressly based, as all purely praetorian rules must be, on the wording of the Edict, not on general principles. It is not very easy to see how a body could corporately cause metus within the meaning of the Edict; but it might pass a resolution authorising its actor to bring a capital charge, destroy the evidence of a man’s freedom, or even conceivably threaten his life. The action (or exceptio') con­templated may not be against the body itself but against third persons who profited. In any case, Ulpian is certainly not making a considered statement on corporate delictal

D. 4. 2. 9. 3 may perhaps take us a little farther. Someone is given an action against 'Campani', who had extorted from him under duress a cautio pollicitationis. Now Campania was not a town, and these Campani may be merely ‘some Campanians’. But Campanus seems to be used as the adjective of Capua; we hear of municeps Cam­panus¹ and decuriones Campani pollicitatio was especially associated with towns; and it seems most likely that we have here a corporate body committing a delict and being either punished or at least made to disgorge the proceeds.3

Another important text is D. 4. 3. 15. 1, which is worth quoting in full: 'Sed an in municipes de dolo detur actio, dubitatur. Et puto ex suo quidem dolo non posse dari: quid enim municipes dolo facere possunt? Sed si quid ad eos pervenit ex dolo eorum qui res eorum administrant, puto dandam. De dolo autem decurionum in ipsos decuriones dabitur de dolo actio.' Municipes here must clearly mean the town as a universitas·, nobody could doubt that an actio doli would lie against fraudulent individuals who lived in towns. Ulpian seems to be confronted, as perhaps no lawyer had ever been before, with the question ‘Can a corporation do wrong?’ It is a difficult question which has puzzled lawyers from Innocent IV to the present day. The common law has saved itself from the need of answering it by applying the doctrine of employers’ and principals’ liability.

¹ D. 50. i. i. 2.                                            ³ D. 18. 1. 50.

³Schnorr von Carolsfeld, discussing D. 4. 2. 9. r (p. 339), explains very clearly the difference between intimidation by a body, as such, and by a number of individuals: but on D. 4. 2. 9. 3 (p. 343) he uses words open to misconstruction. Restitutio is given against the Campanians, but ‘ob allerdings auf Grund dieses Sachverhaltes eine actio gegen die Gruppe gegeben wird, ist damit noch nicht entschieden’. The text explicitly gives an action: ‘scio.. .praetorem me adsidente interlocutum esse, ut sive actione vellet adversus Campanos experiri, esse propositam, sive exceptione, adversus petentes non deesse exceptionem'. No doubt Schnorr von Carolsfeld means that this passage is evidence only for a real or quasi-contractual action ad rem persequendam, not for the delictal actio quadrupli·, which is true.

It is believed that ‘a corporation can act and become liable only through its agents or servants’,¹ and Ulpian’s question is left with no answer or a tacit negative. Ulpian himself inclines to the same view. He cannot think of any way in which a town can itself be guilty of fraud, and therefore supposes (puto, cf. D. 13. 5. 5. 9, D. 45. 3. 3) that no actio doli will lie.

It is obviously desirable, however, to give some redress for the misconduct of bankrupt or absconded officials; and this Ulpian does with the help of an analogy. A pupillus was liable for his enrichment by the fraud of his tutora dominus for * quod ex dolo procuratoris ad dominum pervenit'.3 Ulpian takes his analogy from the second of these,^{[104] [105] [106] [107] [108]} and decides ‘ si quid ad eos pervenit ex dolo eorum qui res eorum administranty puto dandam'. Of two innocent parties, one ought not to gain and the other lose by the wrongdoing of a third. The decuriones are of course per­sonally liable for their own dolus, like the tutor and the procurator.^

The same principle covers the rule of D. 43. 16. 4: ‘ Si vi me deiecerit quis nomine municipuniy in municipes mihi interdictum reddendum Pomponius scribity si quid ad eos per- ‘venit.’ The test is not whether the act was authorised, or the agent acted in the ordinary course of his employ­ment, or for the town’s benefit, or was held out to be its agent on whom third parties could rely; but simply whether any proceeds in fact reached the municipes. On the other hand, where an actor municipum refused to admit 94 a missus in -possessionem, the only remedy was against the man himself,^[109] perhaps because there could be no question of proceeds.

The general result of these texts seems to be that the Romans had no systematic theory of a town’s liability for tort; that it was considered possible for a town to act tortiously, and in particular to be guilty of metus, though perhaps not of dolus, and to be liable in consequence; but that where the act could not properly be attributed to the town itself, but was the work of its agents, the town was liable only to the extent to which it had reaped the fruits of the unlawful action.