CHAPTER VI. SOCIETATES PUB LIC ANO RUM
Not much can be said here of the societates publicanorum. Little is known about them, and that little is more concerned with their position in commercial and administrative law than with their Personality.
Their corporate character seems to be mentioned only in four texts, all suspected. We are told, expressly or by implication, that a societas vectigalis can own property and employ an actor like a town (D. 3. 4. 1); can claim bonorum possessio (D. 37. 1. 3. 4); personae vice fungitur (D. 46. 1. 22); and can bring actio furti against anyone who steals or obliterates its accounts (D. 47. 2. 31. 1). Elsewhere the jurists speak only of their differences from other societates, not of their resemblance to other juristic Persons. But a careful search will show a few places where corporate character can be read into the rules, though it could nowhere else be deduced from them.The main outlines are well known. The contract with the State was made by a manceps, one of the socii, who may have bound the corporation as one partner, in an ordinary partnership, could not bind another. He had to ^wzpraedes as security for carrying out the contract. There is no sign of any relation between the other socii and the State, though the Emperors probably insisted on some kind of registration of actual tax-collectors, whether socii or their agents, to protect the provincials. Certain classes were forbidden to be socii, but this need only mean that they would be refused actio pro socio·, the relevant facts could be brought out in the trial, either in iure or apud iudicem, without any previous registration. The same principle may apply to the participes or adfines, who seem to be investors who have lent money to the publicani at a rate of interest to vary with their profits, can dispose of their l6o interest either by procuratio in rem suam or by a simple stipulation—‘Do you promise to pay me whatever interest you receive on the money you lent to the gold-mining company of Nagy-Enyed ? ’ ‘I promise’—but have naturally no share in the management.
These adfines are not mentioned under the Empire and rarely in the Republic.A societas vectigalis, unlike other societates^ but like other corporations, continued to exist after the death of a member: unless indeed the dead man was the manceps^ the only connecting link between the corporation and the State. The deceased member’s heir could, by previous agreement, become a member. Otherwise he had no say in the management but was bound and entitled by all partnership contracts; so was the heir of an ordinary socius, but there could be no new contracts once the partnership was dissolved by death. Another peculiarity is that publicans were liable, sine noxae deditione, on their slaves’ delicts; and jointly but not cumulatively on their own misdeeds; but this is not, on the wording of the texts, a corporate liability.
The grant of corporate capacity must have been useful to both parties, or it would not have been made or wanted. It was probably convenient that there should be no risk of the societas suddenly ceasing to exist by the death of a partner; but this difficulty could have been overcome without corporate character. Again, it must have been useful to bind and entitle the firm by a single spokesman more effectively than was possible for an ordinary societas. But we have no reason to think this solidarity was tempered by any limitation of liability. The adfines were not sociiy and stood to lose only their invested capital. But considering how spasmodically the Romans distinguished between a body and its members, it is likely that the Censors or the Emperor held themselves or the praedes^ their first victims, entitled to enforce fully against the individual socii their corporate obligations. Perhaps the strongest attraction of Personality may have been its majority principle. Whether the corporate bodies were single societates, or groups of them, or financiers who were not socii (which contradicts Gaius), whether they were formed for five years or for an indefinite time (there is next to no evidence, and the improvised auction ring of D.
17. 2. 33 does not throw any light), they must often have been bodies of considerable size, which might be gravely inconvenienced by the need for unvaried unanimity.But all these are merely tentative suggestions, impossible to prove though perhaps also hard to disprove. For a full discussion and references see Mitteis, Privatrecht, pp. 403—14; cf. also Buckland, Text-Book, 2nd ed. p. 513; Kniep, Societas Publicanorum, vol. 1, especially pp. 242—9; Mommsen, Staatsrecht, vol. 11, 3rd ed. pp. loiyff.; and Deloume, Les Manieurs d'Argent d Rome, especially pp. 96— 132, a book which would have delighted Justinian by the propriety of the sentiments expressed, but infuriates the student by the exuberance of its verbosity and by the paucity and inaccuracy of its references to the texts.