Personality in Roman Private Law

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PERSONALITY IN ROMAN PRIVATE LAW by

P. W. DUFF

Of Lincoln's Inn, Barrister-at-law; Felluw of Trinity College Cambridge

AUGUSTUS M. KELLEY • PUBVISHERS New York, New York e,..,-:i'"'-9

ROTHMAN REPRINTS, INc. South Hackensack, New fersey 1971

First Published 1938 (London: Cambridge University Press)

Reprinted 1971 By AUGUSTUS M. KELLEY • PUBLISHERS 1140 BROA DWAY NEw YoRK, NEw YoRK 10001

ROT HMAN REP RINTS, I Nc. 57 LEUNING STREET SouTH HACKE N S ACK, NEW JERSEY 07606

By Arrangement with CAMBRIDGE UNIVERSITY PRESS

lSBN o 678 04544 5 Library of Congress Catalogue Code Number 70-138536

PRINTRD IN THE UNITED STATES OF AMEltlCA by SENTRY PRESS, NEW YORK, N. Y. I 00 19

To L. E. D.

CONTENTS PREFACE

PAGE IX

CHAPTER I. II.

Persona, Caput, Corpus, Universitas Populus and Fiscus

III.

Towns

IV.

Collegia: the /us Coeundi

v. Collegia and Corporate Capacity VI. VII. VIII. IX.

Societates Publicanorum

Hereditas lacens

Charities Roman Law and Legal Personality

INDEX OF PRINCI PAL TEXTS INDEX OF SUBJECTS

I

51 62

95 129 159 162 168 206

237 239

PREFACE The following pages are an attempt to find out what Roman lawyers thought about juristic Personality, about the right of corporations and other entities to own pro­ perty and bring law-suits. This right was certainly ex­ tended from individuals to towns and voluntary associa­ tions, and perhaps further. But the Romans did not theorise about it, and their ideas must be deduced partly from their language, and more from the rules laid down in law books and the practice we find in literary records and inscriptions. A final chapter discusses whether the ancient Roman law of Personality has any lessons for the present day. The modern books I used most in writing the first draft, fourteen years ago, were Mitteis, Romisches Privat­ recht, Saleilles, De la Personnalite juridique, Mommsen, De Collegiis et Sodaliciis Romanorum, and Waltzing, Les Corporations professionnelles chez Jes Romains. It would be impertinent for me to praise any of them, but it must be said that if I seem to differ from these authorities more often than I agree with them, that is because I never differ from them without trying to justify myself, whereas I constantly accept their doctrines without mentioning their names. A more recent work of great value and importance is Schnorr von Carolsfeld, Geschichte der juristischen Person, vol. 1, 1933. This book is much longer than mine and differently arranged, but vol. 1, the only one yet published, corresponds roughly to my chapters 1, 1v and v. There are very few points on which I have changed my mind after reading Schnorr von Carolsfeld; for the most part we have come independently to the same conclusions; but he has collected and presented a vast mass of fresh evidence. The labour of sifting such a multitude of authorities must have been very arduous; and it is none the less valuable because it tends to confirm established opinions rather than to upset them.

X

PREFACE

A book I did not come across till after mine was in proof is G. Kruger, Die Rechtstellung der vorkonstanti­ nischen Kirchen, 1935. I cannot accept the author's view that Christian congregations were lawful and authorised as collegia cultorum, not/uneraticia, as early as the second century; but her extensive quotations from the Church Fathers show that the episcopal administration we find under Justinian was already well developed before the time of Constantine. Some interesting general observa­ tions, especially on the Western forerunners of the Byzantine charities, may also be found in "Les institu­ tions d'assistance dans la societe romano-byzantine du 1ve siecle a Justinien ", by P. Laborderie-Boulou, in Revue Generale du Droit, de la Legislation et de la Juris­ prudence en France et a l'etranger, vol. ux, 1935. Greek and Egyptian law are outside my scope. I should have liked to follow up the pioneer work of San Nicolo, ./Jgyptisches /7ereinswesen, but decided it would take me too far afield. Consequently I cite very few papyri, and those Byzantine. For guiding me to them I have to thank Dr H. I. Bell. Much space has been saved by not recording that a text has been suspected of interpolation unless the suspicion seemed reasonable and the interpolation substantial. Thanks are due to many friends for their assistance, and especially to Professor W. W. Buckland, who originally suggested the subject, read the book both in manuscript and in proof, and has for fifteen years given me constant help and encouragement; to Professor L. Wenger, who read the work as it was in 1925 and made many valuable comments; to His Honour Judge Dowdall, who gave me some references for the word persona; and to Mr F. H. Lawson, Dr D. Daube and Dr K. Lipstein, who have helped me on particular points or told me of books and articles I might otherwise have missed.

P.W.D.

CAMBRIDGE Marci, 1938

LIST OF BOOKS AND PERIODICALS CITED BY A MUCH ABBREVIATED TITLE OR REQUIRING AN INDICATION OF THE EDITION USED Albertario: Actio de Universitate e Actio Specialis in Rem, E.Albertario, 1919. Brinz: Lehrbuch der Pandekten, A. Brinz. Bruns: Fontes Juris Romani Antiqui, ed. C. G. Bruns, 7th ed., 0. Graden­ witz, 1909. Buckland: A Text-book of Roman Law from Augustus to Justinian, W.W. Buckland, znd ed., 1932. Buckland, 8/atJery: The Roman Law of Slavery,W.W. Buckland, 1908. Bull. Ist. dir. rom.: Bullettino dell' Istituto di diritto romano. C.: Codex Justinianus. C. I. G.: Corpus Inscriptionum Graecarum. C. I. L.: Corpus Inscriptionum Latinarum. C. Th.: Codex Theodosianus, ed. Th. Mommsen, 1905. Consultatio: Veteris cuiusdam iureconsulti consultatio, ed. B. Kubler, in Iurisp. Anteiust. 11. 2, 6th ed., 1927. Cugia: II Termine "Piae Causae", S.Cugia, in Studi giuridici in onore di Carlo Fadda, vol. v, 1906. D.: Digesta Iustiniani. Duff, Charitable Foundations: The Charitable Foundations of Byzantium, P. W. Duff, in Cambridge Legal Essays presented to Doctor Bond, Professor Buckland and Professor Kenny, 1926. Ephem.: Ephemeris Epigraphica, Corporis Inscriptionum Latinarum Supplementum, I 872-1913. G.: Gai Institutiones, ed. B. Kubler, 1935. Gierke, Genossenschaftsrecht: Das deutsche Genossenschaftsrecht, 0. Gierke. Girard, Manuel: Manuel elementaire de droit romain, P. F. Girard, 8th ed., F. Senn, 1929. -- Textes: Textes de droit romain, ed. P. F. Girard, 5th ed., 1923. Halm: Rhetores Latini Minores, ed. C. Halm, 1863. Herman: Zurn kirchlichen Benefizialwesen im Byzantinischen Reich, E. Herman, in Studia et Documenta Historiae et Juris, vol. m, Rome, 1 937•

XU

L IST OF BOOKS AND PERI ODICALS

Heumann-Seckel: Heumanns Handle:rikon zu den �ellen des romischen Rechts, 9th ed., E. Seckel, 1907. Inst.: Institutiones Iustiniani. Iurisp. Anteiust.: Iurisprudentiae Anteiustinianae Reliquiae, ed. P. E. Huschke, 6th ed., E. Seckel and B. Kubler. }ors: Romisches Recht: Geschichte und System des romischen Privat­ rechts, P. }ors, 1927. Komemann: Collegium, Kornemann, in Pauly-Wissowa, 1901. Lachmann: Gromatici Veteres e:z: recensione Caroli Lachmanni: Die Schriften der romischen Feldmesser, herausgegeben und erliiutert von F. Blume, K. Lachmann und A. Rudorff, vol. 1, 1848. Lenel: Das Edictum Perpetuum, 0. Lene}, 3rd ed., 1927. L.Q.R.: Law Q...uarterly Review. Maitland, Political Thtorits: Translator's Introduction to Political Theories . of the Middle Age, 0. Gierke, tr. F. W. Maitland, 1900. -- Trust and Corporation: originally published in Grilnhut's Zeitschrift fur das Privat- und Offentliche Recht, vol. xxxn, 1904; reprinted in The Collected Papers of F. W. Maitland, vol. m, 19n; and in Maitland, Selected Essays, 1936. Maspero: Catalogue General des Antiquites Egyptiennes du Musee du Caire, Papyrus Grecs d'epoque byzantine, Jean Maspero, 19n-13. Mitteis: Romisches Privatrecht bis auf die Zeit Diokletians, L. Mitteis, vol. 1, 1908. Mommsen, De Colltgiis: De Collegiis et Sodaliciis Romanorum, Th. Mommsen, 1843. O:z:y. Pap.: The O:z:yrhynchus Papyri, ed. B. P. Grenfell and A. S. Hunt, 1898P. or P. Sent.: Pauli Sententiae. Pauly-Wissowa: Paulys Real-Encyclopiidie der classischen Altertums­ wissenschaft, ed. G. Wissowa. Saleilles: De la Personnalite juridique, R. Saleilles, 2nd ed., 1922. Savigny: System des heutigen Romischen Rechts, F. C. von Savigny, 1840-48. Schlossmann: Persona und Ilpouw1rov im Recht und im christlichen Dogma, S. Schlossmann, 1906. Schnorr von Carolsfeld: Geschichte der juristischen Person, L. Schnorr von Carolsfeld, vol. 1, 1933. Thulin: Corpus Agrimensorum Romanorum, ed. C. Thulin, vol. 1, fasc. 1, 1913. U.: Ulpiani liber singularis regularum.

LIST OF BOOKS AND PERI ODICALS

xm

Waltzing: Etude historique sur Jes Corporations professionnelles chez les Remains, J.-P. Waltzing, 4 vols., 1895-1900. Windscheid: Lehr buch des Pandektenrechts, B. Windscheid, 8th ed., Th. Kipp, 3 vols., 1900-1. Z.8.8.: Zeitschrift der Savigny-Stiftung fur Rechtsgeschichte, Romanis­ tische Abteilung. References to the Corpus Juris Civilis are to the Berlin Stereotype edition.

PERSONALITY IN ROMAN PRIVATE LAW �'fJJ.�

CHAPTER I. PERSONA-CAPUT­

CORPUS-UNIPERSITAS PERSONA

The word persona has a long and complicated history. Its various meanings, and those of its Greek equivalent, irp6crc,.mov, and of its modern derivatives, have been the subject of much controversy among philologists, lawyers, philosophers, and especially theologians. We need not here discuss the doctrine of the Trinity or the ethics of Kant; but it would be strange to write on the history of Personality and say nothing about the early uses of the word persona, however little real connection there may be between the two. Legal Personality nowadays, Personnalite Juridique, Juristische Personlichkeit, is a highly technical term of jurisprudence. It means the capacity for legal rights and duties; and an entity capable of legal rights and duties is called a Legal Person. All human beings in civilised countries are Legal Persons. Where slavery exists, or existed, it is usual to deny Legal Personality to slaves, although they have not always been wholly without legal rights. But besides individual human beings there are other entities which have been treated by many legal systems as capable of rights and duties. The most familiar example is the Corporation Aggregate, a body of men joined together in a group which is recognised by the law as capable of rights and duties altogether distinct

2

PERSONALITY IN ROMAN PRIVATE LAW

from the rights and the duties of its individual members. States and municipalities can be classed as Corporations Aggregate, together with voluntary associations, com­ panies, and societies. Among other entities which have been regarded as Legal Persons may be mentioned the Corporations Sole of English law, charitable foundations, and the idols of present-day India. Each of these entities has been allowed by courts to bring actions; that is to say, individual men have been allowed to appear in court in the name, and as representatives, of the entities; and any entity, whatever its intrinsic nature, is properly styled a Legal Person if it is allowed by the courts to be a plaintiff or defendant. What entities ought to be Legal Persons is another question. It is far from clear what considerations should govern the courts and the legislature in granting or withholding Personality, in deciding, for example, whether a trade union should be able to sue its officials, or tradesmen to claim payment for goods supplied to a club. This subject will be discussed later: here we are only concerned with definition. By a Legal Person we mean any entity which, reasonably or unreasonably, is deemed capable of legal rights and duties; and whether any particular entity is a Legal Person or not is a pure question of law. Roman law certainly recognised some Legal Persons other than individual human beings; and the Latin word persona is sometimes used nowadays as a synonym of both Legal Person and Legal Personality. We find English judges saying 'A corporation is a legal persona, just as much as an individual', 1 and again 'the idol ... has a status as a separate persona' ; 2 and it would be natural to suppose they are using a technical term of Roman law. It is the object of the following pages to find out whether this is true, whether the word persona was used by Roman 1

See Sir F. Pollock, Essays in the Law, 1922, p. 155. See Duff, 'The Personality of an Idol', in Cambridge Law Journal, 1927, P· 43• 3

3 lawyers to mean either a Legal Person or Legal Personality, or, as a term of art, in any other technical sense. With this end in view we must first outline the earlier history of the word, and then discuss its use in connection with slaves, who were human beings but not Legal Persons, and with such other entities as were, or may have been, recognised as Legal Persons although they were not individual human beings. The earliest traceable meaning of persona 1 is a mask, such as Greek and Roman actors regularly wore on the stage. Various derivations have been given; the most probable is from per and sonare; but it has been held that persona comes directly from either 1rp60-001rov or TTpoaoomiov. Into this question we need not go; all the later uses are clearly derived from the meaning 'mask', however that meaning may itself have arisen. The first change is by way of metaphor. When we say of an actor 'Personam gerit senis', we may mean literally that he wears a mask painted to represent an old man's face; but that is equivalent to saying that he plays the part, or rOle, of an old man; and the extension is easy to the parts played by each man on the stage that is all the world. When Cicero says ' �am magnum est personam in republica tueri prin­ cipis! •:i the metaphor is obvious, and we can translate, with the English editor of Facciolati-Forcellini's useful Latin lexicon, 3 'to play the part, or to support the cha­ racter, of a leading man'. Sometimes a man plays more than one part. Thus we read in the Digest (45. 3. 1. 4): 'Communis serous duorum servorum personam sustinet.'4 He comes on the legal stage now in the character, wearing the mask, so to speak, of A's slave, now in that of B's, like Goldoni's Truffaldino. PERSONA

1 Cf. Schlossmann, Persona und TTpooc.mov inr Recht und im christliclze11 Dogma, 1906, pp. I 1-21. 2 Cic. Phil. 8. ro. 29. 3 London, 1828. 4 Cf. D. 28. 5. 16: 'et imtituti et sulntituti personam sustinere'. Cicero has 'tres personas unus sustineo • •. meam, adoersarii, iudicis' (De Oratore, 2. 24. 102).

4

PER S O N ALITY I N ROMAN PRI V ATE LAW

We might say he appears in two capacities. Sometimes again the part played is not that of an individual man but of a personified abstract like Kpchos and Bfa in the Prometheus Vinctus. This personification is defined by the rhetorician Rutilius Lupus (11. 6, ed. Halm, p. I 5 ) 'TTpocroo­ iroirotia. Hoc fit cum personas in rebus constituimus, quae sine personis sunt . . . . Nam humana jigura produxerunt per­ sonas, quae in veritate artis et voluntatis sunt, non personae.' 1

Lastly, a man may impersonate, or represent, a community, and Cicero can say ' Magistratus gerit personam civitatis' (De Off. I . 34. I 24), and ' qui personam populi Romani sustinerent' (De domo, 5 2 . 133). Very often where persona is used without any apparent reference to the original meaning, it can nevertheless be explained by it. For example, lawyers often speak of one man's bringing an action ex persona of another-the heir ex persona mortui, the tutor ex persona pupilli, the procurator ex persona d omini. In all such cases, the underlying idea is that the man actually in court does not come as himself, but as 'representing ' someone else. It is not far from 'I, one Snout by name, present a wall ' to 'A.B. suing as the legal representative of X.Y. deceased '. The next development brings persona nearer to the 'person ' of ordinary English usage. The transition may perhaps be seen in the familiar phrase ' dramatis personae' . This may originally have been a list of the masks that would be worn in the play; more probably it was meta­ phorical from the first, and meant the parts to be played; but it was very natural that it should come to mean 'the persons of the play', 'the characters'. 2 Thus persona may 1 Cf. Aquila Romanus, § 3, in Halm's Rhetores Latini, 1863, p. 23 : 'Personae confictio . • . rem publicam ipsam loquentem inducimus.' 2 The lists of characters prefixed to Plautus' and Terence's plays are not contemporary, and the word drama was not acclimatised till much later ; but we find persona with very much the same meaning in Terence, Eunuclzus, Prologue, 30-3 3 : 'Co/ax Menandri est: in ea est parasitus Co/ax, Et miles gloriosus : eas se hie non negat Personas transtulisse in Eunuchum suam Ex Graeca.'

P E Q. S O NA

5

mean either a person whose character is portrayed on the stage,1 or the actor who portrays it; and this leads2 to the meaning, perhaps the commonest in legal texts, para­ phrased by Facciolati as ' ipse homo, quatenus hanc vel illam personam gerit', a man (or woman) in so far as he (or she) plays this or that part. This again shades so imperceptibly into the sense of 'a human being' without any further implication that it is hard to give any clear example of either. There are certainly hundreds of passages where homo could be substituted for persona without any apparent change in the sense; but it has been maintained that there is always a shade of difference, and the question is not important. ' Ea persona' may mean exactly the same as ' is ', ' that man', or it may mean ' that man (bearing in niind the part he has to play, i.e. in legal contexts, his legal position) ' , 3 It is hard to believe this subtle distinc­ tion was always present to Roman minds; but no doubt everyone has some legal position, even if it is that of a slave, and lawyers should always bear in mind the legal position of everyone they mention. In what follows we shall assume that persona can mean a human being, and the reader can if he prefers substitute throughout 'a human being, bearing in mind his or her legal position'. The argument will not be affected. There is a very common variant of this use which is hard to analyse and often gives trouble to a translator. This is the use of persona with a genitive, apparently as a mere periphrasis-persona Titii meaning simply Titius (or possibly 'Titius, bearing in mind his legal position'). Thus when Gaius says ' ceteras vero liberorum personas si praeterierit testator' in one passage,4 and ' ceteri vero liberi sive masculini sexus sive feminini una mancipatione exeunt ' Cf. Plautus, Persa, 7 8 3 ; Schlossmann, pp. 1 5- 1 7. ' This development is discussed very fully by Schlossmann, pp. 1 1-3 I . His account i s convincing, though he seems over-confident about details. 3 When the King says 'Our Person' or a subject ' Your Majesty' do they mean ' Me' and 'You ' or ' Me (you), bearing in mind that I am 4 G. z. 1 24. (you are) King' ?

6

PERSONALITY IN ROMAN PRI VATE LAW

de parentum potestate ' in another,1 it is hard to doubt that ceterae liberorum personae means exactly the same as ceteri liberi.

Enough has now been said on the general history, and we may turn to the specific question how far persona is used as a technical term corresponding to the modern Legal Person and Legal Personality. This may be divided under two headings : Do the Romans call slaves personae ? and Do they use the word of any Legal Persons other than human beings ? On the Personality of slaves there has been much con­ fusion, because it has been assumed uncritically that persona means a Legal Person. We have already seen that one meaning of persona is 'human being', and slaves are certainly human beings; but it has been maintained that only those human beings are personae who are capable of legal rights and duties. This is suggested, though not stated, by Girard : 2 'L'esclave n'est pas une personne, mais une chose.' It appears explicitly in Moyle's Institutes. 3 'What did the Romans mean by ''persona'' ? . . . They did not regard all men as persons. . .. It is true that now and then, though very rarely, the word "persona " is applied to slaves (e.g. Bk i, 8 pr.); but the uniform language of legal authorities is the other way, and there can be no doubt that it is only per incuriam that occasionally a writer using this or other terms (such as caput, status) implying personality includes the slave as well as free persons within his view. . . . A persona is a man regarded as invested with legal rights, or as capable of acquiring them.' This extreme view is quoted to show how dangerous it is to generalise hastily on this topic; for the facts altogether contradict the above statement. It was pointed out a 1

G. 1 . 132. Compare also in persona .ft/ii (ibid.), in persona pupilli 177), with in uroo and in . . . domino (G. 1 . 39). 2 Manuel .Ellmtntairt dt Droit Romain, 8th ed. 1929, p. 103. 3 lmptratoris lustiniani /nstitutio11um Libri ffl..!jattuor, J. B. Moyle, 5th ed. 1912, pp. 85 f.

(G.

I.

PER S O NA

7

century ago,1 if not before, that the Roman lawyers 'neither confined it' (the term 'person ') ' to human beings, considered as invested with rights; nor did they even restrict it to human beings, considered as subject to obligations. The meaning which they attached to the term, is the familiar or vulgar meaning. With them "persona " denoted " homo ", or any being which can be styled human.' The truth of this has been finally proved by Professor Buckland, first in the Law §zyarterly Review2 and again in his Roman Law of Slavery;3 he quotes from legal writings no less than twenty-seven passages which speak of slaves as personae, and makes it clear that this is the regular practice of lawyers from Julian and Gaius to Tribonian. On the other hand there are a very few texts which show a tendency, beginning late in the third century, to use persona in a sense something like ' capacity', and to say that some men have either no persona or not the kind of persona that they need for the purpose in hand. One earlier text is quoted as denying persona to a slave, but it does not really do so. This is Digest 4 5. 3. 2 6 (Paul) :4 ' Usus fructus sine persona esse non potest et idea ser'l.Jus hereditarius inutiliter usum fructum stipulatur.' This one might no doubt translate: ' The!"e can be no usufruct without a Legal Person, and therefore a slave who is part of an inheritance cannot validly stipulate for a usu­ fruct.' That looks as if the slave was unable to stipulate because he is not, or has not, a persona. But really, as Professor Buckland points out, it would be irrelevant to consider whether the slave is a Legal Person or not. The usufruct certainly cannot vest in him-' ser'l.Jile caput nullum ius habet'5-and the question really at issue is whether it can vest in the hereditas iacens and remain in suspense till there is a human being, a heres, in whom i t can vest. 1 John Austin, Lectures on Jurisprudence (written before 1833), 3rd ed. 3 1901, p. 179. 1869, vol. 1, pp. 360 f. 4 = Vatican Fragments, 55. S D. 4. 5. 3. I . 3 1908, p. 4.

8

PERS ONAL I TY IN R OMAN PRIVAT E LAW

We may translate either 'There can be no usufruct without a human being for i t to vest in' or simply ' without some­ body for it to vest in'. There seems to be a close parallel in D. 36. 1 . 5 7 . 1 (Papinian), which says that an inheri­ tance cannot be immediately handed over to a slave who is set free only 'in tempus ' (which must here mean after, not up to, a certain date), 'quando persona non est, cui restitui potest' This might obviously mean ' since there is no Legal Person to whom it can be transferred ', but it can equally well be rendered ' since there is nobody to whom it can be transferred ' . In both passages the word is ambiguous and must be interpreted in the light of the many texts where it is not. Since there are no other texts as old as these two where persona seems to mean Legal Person, and many where it is used of slaves, we must conclude that the word here too means ' human being' and not ' Legal Person'. The evidence is more nicely balanced in a text not mentioned in this connection by Professor Buckland, namely D. 4 1 . I . 6 r (Hermogenian) : 'Hereditas in mu/tis partibus iuris pro domino habetur adeoque 1 hereditati quoque ut domino per servum hereditarium adquiritur. In his sane, in quibus factum personae operaeve substantia desideratur, nihil hereditati quaeri per servum potest. ac propterea quamvis servus hereditarius heres institui possit, tamen quia adire iubentis domini persona desideratur, heres exspectandus est. (§ I ) Usus fructus, qui sine persona constitui non potest, hereditati per servum non adquiritur.' The last sentence seems to be merely quotation of Paul, but 'jactum personae' is a curious expression. ' An act of a Legal Person' would make sense ; ' an act of a human being' does not. Obviously a slave's stipulation is ' an act of a human being ' ; and a servus hereditarius can validly stipulate.z It seems best, though not very natural, to translate factum personae ' an act of the person who is to be entitled ' . But, since the text is from Hermogenian, who wrote in the fourth or 1 D. 41. 1 . 33. 2 . 1 idtoqut F•.

P E R S O NA

9

very late third century, it is conceivable that we have here an adumbration of the modern technical meaning. Similar adumbrations may be found in the Codes of Theodosius and Justinian. We hear as early as A. D. 294i of ' legitimae administrationis persona ' in connection with a tutor who gave no security: ' ea, quae ab eo gesta sunt, 1

qui legitimae administrationis personam sustinere non potuit, ipso iure irrita sunt' . Here sustinere suggests that the stage

metaphor is still alive; the unqualified tutor, like the incompetent actor, cannot play the part he undertakes. We may translate 'who cannot lawfully act as admini­ strator' or 'perform the part of an administrator'. The chief thing to note about this text is that persona cannot possibly mean Legal Person or Personality. We will now consider a series of texts where that meaning gradually becomes possible and ultimately perhaps probable. Let us take first C. 4. 46. 3,3 A. D. 337, dealing with the public sale of property confiscated for non-payment of taxes: ' sin autem minorisforte persona fuerit inserta (observe that a minor is, or has, a persona), necesse sit legitimae defensionis adesse venditioni personam ', a lawful guardian must attend the sale. This is very like C. 2 . 40. 4, and legitimae defensionis persona must mean almost the same as qui legitimae administrationis personam sustinere potest, i.e. a duly qualified and appointed curator. Defensio is the rt>le, persona the player. Persona does not here mean a Legal Person; but the phrase legitimae defensionis persona does mean, not indeed someone capable of rights (rechtsfahig)­ a minor is that-but someone capable of taking part in legal transactions (handlungsfahig); and the step between these is short. We come now to the ten passages in the Codes that 1 P.Kriiger, Geschichte der �el/en und Litteraturdes rom. Rechts, 2nd ed. 1912, p. 254; Kalb, Roms Juristen, 1890, p. 144. i C. 2. 40. 4. The lex gemina, C. 5. 42. 3, is dated 287 ; but Kruger, ad loc., says that is wrong and 294 right. The clause qui • . . potuit is not in the lex gemina, and may well be interpolated. 3 =Th. 11. 9. 2 (corrupt at this point).

IO

PERSO N AL I TY I N RO M A N PRI V ATE L AW

contain the words persona legitima with various meanings. One may be dismissed as irrelevant to our problem, namely C. 6. 5 8. 14 (A.D. 53 1), where legitimas personas means agnates-'legitimas personas, id est per virilem sexum descendentes'. In six of the others legitima persona means a person (i.e. a man or woman) legally qualified to do or be the thing u nder discussion. 1 Thus in C. 6. 17. 2 (= C. Th. 4. 3. 1), A.D. 393,

' Carbonianum edictum sub personis legitimis indubitato matri­ monio . . . defertur', personae legitimae must mean persons entitled by age, ius connubii, and so on, to contract a civil marriage, iustae nuptiae, entitling their children to benefit

by the Roman law of succession. A slave would not be a persona legitima in this sense; but neither would a pere­ grine or a Latin, though they were certainly Legal Persons. C. Th. 3. I . 7 (A. D. 396) runs: ' Semel inter personas legitimas initus empti contractus et venditi ob minorem ad­ numeratam pretii quantitatem nequeat infirmari.' Here the Interpretatio gives ' duas quascumque personas', showing how

little importance the interpreter attached to the phrase legitima persona. Those words here mean on the face of them 'persons qualified to make a valid contract ', which would include slaves and exclude lunatics and perhaps those barred by special circumstances, such as a tutor contracting with his ward or an official buying land in his province. But in view of other texts we may guess that legitimus here means primarily 'of full age ' ; if one of the parties was a minor there was always a risk of the sale's being avoided. This explanation of the word is given by the Interpretatio of C. Th. 2 . 4. 4 (A.D. 38 5). The text is concerned with the course of a normal trial and the effect of imperial rescripts, and says that at a certain stage ' iis exordium auspicatur inter iustas videlicet legitimasque personas', parties capable of bringing and defending actions; but the lnter­ pretatio is much more definite: ' si tamen litigantum perjectae 1 The very expression 'persona /egitima ' indicates that persona itself has no ' legal ' connotation. So does our use of ' legal perso11a '.

PER S O N A

II

probantur aetates ', ' if the litigants are shown to be of full age'. This certainly fits quite well ; if one party was an unauthorised pupillus the action would be a nullity. 1 The same idea seems to underlie C. 3 . 6. 3 (= C. Th. 4. 2 2 . 6), of A. O . 4 1 4. This is one of the three laws in Justinian's title �i legitimam personam in iudiciis habent vel non, and reads as follows : ' Momentariae possessionis actio (momenti actio C. Th.) exerceri potest per quamcumque personam. sub co/ore autem adipiscendae possessionis obrepticia petitio alteri obesse non debet, maxime cum absque conventione personae legitimae initiatum iurgium videatur. nihil autem opituletur conventio circa minorem habita, cum id rectius circa curatorem debuerit custodiri.' By itself, ' absque conventione personae legitimae ' is not clear, and Schlossmann (p. 7 I) doubts whether the genitive is objective or subjective, whether the persona who must be legitima is the plaintiff or the defendant; but the last sentence makes it reasonably certain that persona legitima means a defendant who is either of an age to defend himself or lawfully qualified to defend the minor whose right is disputed. Similar to these texts is a passage of the Autun Gaius2 quoted by Schlossmann, 3 which indicates that when it 1

Cf. Consultatio (late 5th cent.) 2 . 5 : inter maiores personas et legales. Book 1v, §§ 89, 90 ; lurisp. Anteiust. vol. n, 2 (1927), p. 4 55. 3 Op. cit. p. 69. He does not mention the statement of the preceding section, 'sine personis legitimum [iudicium] stare non potest', which would require comment if it came from a reputable author, instead of an illiterate scribbler. Schlossmann does quote a rescript of Athalaric, King of Italy when Justinian became Emperor, ('who at the age of sixteen', according to Gibbon, 'was consumed by premature intemperance'), composed and recorded by his great minister Cassiodorus, and to be found in the Monumenta Germaniae Historica, Auctorum Antiquissimorum, tom. xn, r 894, p. 2 5 8, I. 4 (Cass. /Tariae, 8. 28. 3). The sentence in question is 'Momenti iura si 2

competunt, primitus reddantur in'fJasa, ita tamen ut persona legitima discepta­ tionibus non desistat. ' Schlossmann takes persona legitima to mean the Roman

assessor who had to attend all suits between Romans and Goths, but it is simpler and better to connect this law with C. Th. 4. 22. r and 6, laying down similar rules in similar language, and to translate 'provided however that the true owner shall not be barred from bringing an action afterwards' : the 'momenti actio', concerned only with possession, cannot prejudice a subsequent claim of ownership.

12

PERSO N ALITY IN RO M AN PRIVATE LAW

was written legitima persona was already familiar in the sense of 'someone qualified to conduct a lawsuit': ' Et ideo]

tractamus, quae sint legitimae personae. nam permittitur his qui haben[t /item, ut pro ]prio nomine consistant ut legitimae personae. Sed non so/um per nos[ met ipsos pos ]sumus litigare, sed etiam per alias, non per quascumque, sed per certas person[as, scilicet per] cognitores aut per procuratores aut per tutores autper curatores, quipro al[iis ag]entes habent legitimam personam.' Here the class of legitimae personae includes not only tutors and curators but also cognitores and procuratores, whose principals would be equally legitimae personae if

they came to court themselves. 1 So too in C . Th. 1 0. 1 0. 2 7 . § 5

4 1 5),

(A. D. 4 1 8 ,

misdated

' ad praebendam inter legitimas personas audientiam et exercendum inter partes iure conjlictum . . . sex mensum spatium praecipimus custodiri', legitimae personae must be 'qualified

litigants', people of lawful age acting either for themselves or as duly appointed representatives. The last of the six Code passages is C. 8. 5. 1 . I . (= C. Th. 4. 22. 1), of A. D. 326. This law allows anyone, slave or free, to sue in the name of an absent owner for return of possession wrongfully taken; and adds that no such litigation is to prejudice in any way the rights of the absent owner: ' omnia quae supererunt ad disceptationem

litigii immutilata permaneant: iudicio seruato iustis legitimisque personis, cum valde su.fficiat possessionem tenentibus absentium nomine contra praesentium violentiam subveniri.' Here iustae legitimaeque personae clearly means people entitled not

only to bring an action 2 but to win it-the true owners of the property. In all these texts legitima persona means someone who has some particular right or capacity: in none does it mean one capable merely of rights or liabilities in the

1 In Consultatio 3. 2, a procurator who gave no security ' nu/lam ptr­ ronam habuit litigandi ' . • . 'fuit procuratoris ludificatoria, inanis ti nu/la ptr1011a '. a Inter ltgitimar dumtaxat tt inttgra attatt ptrro11a1, Interpretatio.

P E R S O N&

13

abstract. It is opposed to minors, and to those who falsely pretend to be tutors or owners, but never to slaves. Next comes a group which it is hard to discuss accurately and without pedantry. Hitherto we have been concerned with texts where homo could have been substituted for persona without much change of sense. In the following texts this would not be possible. Here persona is used in senses derived more directly from the meanings ' mask' and 'r6le'. But we have always to remember that persona Titii is often indistinguishable in meaning from homo Titius or ipse Titius ; and it seems that legitimam personam habere, gerere, sustinere may also be indistinguishable from legitima persona esse.

Thus in the rubric of C. 3. 6, ' fil.yi legitimam personam in iudiciis habent vel non', we may translate 'who play

a lawful part' or ' can lawfully play a part'; but the meaning is exactly the same as if the words were ' fil_yae personae in iudiciis legitimae sunt vel non ', 'what persons are lawfully qualified to be litigants'. The title contains only three laws. The third has been discussed, and the others are both concerned with the bringing of actions by or against minors with or without the authority of their tutors or curators. So in C. Th. I O. I O. 27. § 4 (A. D . 4 1 8, misdated 4 1 s) ' statuto tempore legitimam personam sui probaturus adveniat'

clearly means the same as ' legitimam personam se habere' or ' se esse probaturus ', that he is playing a part for which he is lawfully qualified, or that he is lawfully qualified for the part he is playing. The nature of the part is not per­ fectly clear, but it seems to be the part of owner of the property in question. It would certainly not be enough to prove he was a free man, a ' Legal Person'. 1 In the last remaining passage of the Codes where we find the words 'persona legitima ' the precise meaning is ob­ scure, but the general sense is similar. This is C. 6. 60. 1. 1 1 So Consultatio 6. 2 : 'primore in loco debet evidenter ostendere se personam habere legitimam ' ; 5. 2 : ' Primore in loco debet personam suam, fJUae sit ad repetendum idonea, evidenter ostendere : et dum claruerit eum ad repetendum personam habere legitimam ' etc.

14

PERSONALI T Y I N R O M AN PRIVATE LAW

(= C. Th. 8 . 1 8 . 1. § 3), of A.O. 3 1 5 (misdated 3 1 9), dealing with bona materna. It says that patresfamiliarum ' omnem debent tuendae rei diligentiam adhibere et quod iure filiis debetur . . . poscere . . . et /item inferentibus resistere atque ita omnia agere, tamquam solidum perfectumque dominium et personam gerant legitimam '. The paterfamilias is not owner of the bona materna, but he is to act in every way as if he was owner, except that he cannot validly alienate. Schloss­ mann (p. 67) says: ' er soll dominium gerere, d(as) h(eisst) nicht etwa : das Eigentumsrecht haben . . . der Kaiser will sagen, der Yater solle nur im Prozess wie der Herr der Sache auftreten diirfen . . . personam legitimam gerere besagt pleonastisch dasselbe, er solle von Rechts wegen eine Rolle haben, d. h. als Vertreter des Kindes im Prozess aufzutreten befugt sein '. This seems to ignore tamquam ; the text does not say fathers are to d ominium gerere, but to act as if they d ominium gerant; and we may render ' as if they were full owners and therefore had a lawful part to play in litigation', ' and were lawfully qualified to bring and defend actions'. Two other relevant texts are C. Th. 8. 1 8 . 3 (A.o. 334), ' maiorem sibi in. rebus filiorum vindicare personam ', which evidently means ' play a greater part, or rOle ', and C. Th. 3 . 1 7. 1 (A. O . 3 1 9 ; = C. 5 . 34. 1 1 ), ' In universis litibus placet non prius puberem iustam habere personam, nisi' etc., ' cannot play a lawful part ',' is not a legally qualified person'. We are now ready to consider the two passages where slaves are actually said not to have a persona. These are Nov. Theod. 1 7. 1. 2 (A.D. 439) and Cassiodorus, Pariae, 6. 8 . 2 (ed. Mommsen, Monumenta Germaniae Historica, Auctorum Antiquissimorum, tom. xu, 1 8 94, p. 1 8 1 , I. 3 1 ; about A. o. 5 2 7). The Theodosian passage runs : ' Servos namque nee ab initio, quasi nee personam habentes, in iudicium admitti iubemus et, si hoc ausi fuerint, continuo eos Jiammis tradi vel bestiis.' Here we are clearly concerned with capacity to appear in court, not with capacity fo r rights, Prozessfahigkeit not Rechtsfahigkeit. But personam only

P E R S O NA

conveys this meaning in virtue of the context, and we can translate ' as having no part to play on the stage of the law­ court'. The text is clearly parallel to those containing the phrase persona legitima, and neither that phrase nor the word persona here has any technical meaning at all. This is equally clear in the Cassiodorus passage, part of the Formula Comitivae Privatorum. The Comes originally controlled only the slaves of the imperial domains, but assumed a wider jurisdiction, ' ne dignitas Latia/is causam tantum modo videretur habere cum famulis, sed actibus urbanis tune se felicius occupavit, postquam agrestium causas decenter amisit. �id enim prius facerent inter servos iura publica, qui personam legibus non habebant? Non ibi advocatus aderat, non se partes sollemni actione pulsabant ' ; etc. It seems impossible to doubt that personam legibus non habebant is exactly equivalent to personam legitimam non habebant, and means they had no lawful r6le, no part given them by the law in the drama of litigation. If we are right in explaining these two passages in this way, by reference to the texts which contain the phrase persona legitima, it may perhaps be taken as proved that Roman lawyers did not use the word persona as a technical term meaning either Legal Personality or a Legal Person. 1 A free man is never said to be, or to have, a persona, in contrast to a slave; and where slaves are said not to have a persona, this seems to be untechnical. There are however three troublesome texts in the Greek paraphrase2 of Justinian's Institutes traditionally attributed to Theophilus, part-author of the Institutes themselves. 1 I have supplemented the references of earlier writers by examining all passages in the Codes of Theodosius and Justinian where the word perso11a occurs, according to Gradenwitz' Heidelberger l11dex zum Tlzeodosianus, 1925 (Ergiinzungsband, 1 929) and von Mayr-San Nicola's fTocabularium Codicislusti11iani, I 92 3-5. The Digest, the Institutes, and the pre-Justinianean sources are not likely to contain anything not already observed by the many who have studied persona ; and the use of words in Justinian's Novels is so slipshod that an exhaustive search would be laborious without being 2 Ed. E. C. Ferrini, 1884--97. profitable.

16

PER SONAL ITY IN R O M AN P R IVATE LAW

All three describe slaves as &-rrp6crc,mo1, having no 1rp6cr­ c,mov ; and 1rp6crc,mov is the normal Greek equivalent of persona. They are as follows. Inst. 2. 1 4. 2 (Ferrini, vol. 1, p. 1 7 8) : wv Tovs 6eC11T6Tas1 6vv6:µe6a yp6:q,e1v KAT)pov6µovs TOVTCuv Kai Tov olKETl)V. 6 yap olKETl)S &-rrp6creunos wv EK Tov olKEiov xapaKTflpf:�eTat 6eC11T6TOv. Inst. 3. I 7. pr. (Ferrini, vol. 11, p. 3 2 8) : ol olKETat &-rrp6crw1ro1 OVTES EK TWV npocroo,rc.,v TWV olKe{euv 6E0"1TOTWV xapaKTl'}pi30VTat, Kai EKEi6ev e�ovcn TTJV KaTOAT)lfllV 1TOTEpov rnepCuTCXV 6VVaVTCCl fJ ov 6wmrrat. Inst. 3. 2 9. 3 (Ferrini, vol. 1 1, p. 3 80) : a.Ma 6ei 1rpos Tovro Afye1v OTl 1ro1ei novationa ov µ6vov To TiKTEo-6cn q>VO"lKTJV EVOXTJV, a]v,.cx Kai TO V1TEiva1 1rp6crc,mov . &-rrp6crCu1TOS 6e ,rapcx TOiS v6µ01s 6 6oVAQS. It cannot be denied that in all these passages &-rrp6crc.,1ros can plausibly be translated as ' without Legal Personality'. It is perfectly true that slaves have no Legal Personality of their own and therefore take Legal Personality from their owners. And it is possible that we have here a technical terminology which had grown up at Berytus or Byzantium and does not happen to have come to light in any earlier work. It is even possible that Theophilus himself, or whoever wrote the Paraphrase, felt the need of a word to express the incapacity of slaves for rights and duties, and pressed into service the very rare word anp6cr­ c,.mcs. But it does not seem very likely. Persona had been used for centuries without acquiring a technical meaning, and to a Byzantine lawyer persona and 1rp6crc.,,rov seem to have been interchangeable synonyms. 2 The poet3 tells us that Justinian's Pandects only make precise What simply sparkled in men's eyes before,

1 This seems corrupt. TWV 6eO"TTOTWV oOs 6waµa1 gives sense, and is the reading of one MS. a Theophilus himself has (r. 3 . pr.) ,; Toivw TWV '!Tpoac.:mc,w cii1ras seems to mean, not incapable of rights, but without any legal character of their own, positive or negative. We have seen above that persona commonly means the part played by a man in the drama of the law; these texts tell us that slaves are not cast for any part, and whether they can be instituted heirs, or stipulate, depends on the rOle played by their masters, whether as citizens, peregrines, or lunatics. They are in themselves colourless, like the glass jars that a chemist fills with red and green and purple liquids, and take their colour from their masters. To say that a slave cannot himself be the subject of rights would be true; but it would not be very relevant. The third passage is more difficult. A slave's promise does not novate, although it creates a natural obligation, because for novation 6ei v-rreivai ,rp6o-c..:,,rov · &-rrp60-w1ros 6e ,rapa Tois v6µ01s o 6ovAos. It is tempting to translate ' there must be a Legal Person; and a slave is not a Legal Person '. But the temptation is lessened by looking at the corresponding words of Gaius and Justinian. Gaius 1

Cf. also D.

habt11tur.'

5 0 . 1 7. 3 2 : • �od attintt ad ius civilt, stTTJi pro 11ullis

18

PERSONAL I TY I N RO M AN PRIVATE LAW

says (3. I 76) 'proinde adhuc obligatus tenetur, ac si postea a nu/lo stipulatus fuissem ' ; and Justinian (3. 29. 3) only changes tenetur to manet and fuissem to fuisset. Buckland 1 comments: 'This is not the real reason, for the statement is incorrect : it creates a naturalis obligatio, apart from the edictal rules. In fact the statement, though it has been used for far-reaching conclusions, is obscure.' It is not surprising that the Paraphrase should give difficulty. Gaius certainly seems to say that the first debtor remains bound as if the second stipulation had been made with Nobody, and to imply that for novation you must stipulate with Somebody. On that unhelpful remark it is a r�ason­ able comment to say that for this purpose the law regards a slave as Nobody, especially as we are told elsewhere that slaves pro nu/lo habentur ; and that seems to be all Theophilus is trying to say. It is very doubtful if he really meant, as appears on the face of it, to make a general statement; and very unlikely that in using the word &-rrp6crc,:mos he had any very definite meaning in his mind at all. Any theory based upon the word &-rrp6crooTros must be built on sand. 2 1

Text-Book, 2nd ed., 1 9 3 2, p. 569, n. 2. z Schlossmann, after suggesting views on 'persona' and ,rp6aeurrov much like those given here, embarks (p. 73) on a very learned and amply docu­ mented study of the use in theology, and especially in connection with the Trinity and the Incarnation, of the words rrp6aeurrov and v,r6a.a:a1s. He shows they are often used as synonyms (especially with reference to the Persons of the Trinity) and that v,r6a.a:a1s can mean 'existence'. Here the evidence becomes less clear ; but he claims to show that &-rrp6aeurros can mean 'non-existent', and does so mean in the Theophilus passages. He translates ' Sklaven haben keine Existenz ' (p. 94), and again : 'die Sklaven existieren nach dem Gesetze nicht; fiir das Recht sind sie nicht vorhanden ', and on p. 95 'es wird im Rechte so gehalten, als waren die Sklaven garnicht auf der Welt'. This is supported (if it was not suggested) by a most apt quotation (p. 96) from Theodorus Hermopolites, a Byzantine jurist living under the Emperor Maurice (A.D. 5 8 2-602) : 6 6ov;\os rra:pa: TOiS v6µ01s &-rrp6aeurr6s ta.1, TOVTea.1v ov6e 6oKEi Jfiv ,; vrreiva:1. But these expres­ sions have to be interpreted and explained, since in their plain meaning they are obviously untrue. Slaves did exist, and there was a great deal of law about them. In fact, Schlossmann says (p. 94) : 'Das bedeutet praktisch :

P E R S O NA

19

The texts so far dealt with give scanty and treacherous support to the view that persona or rrp6aoorrov can be used technically to mean a Legal Person, a Right-and-duty­ bearing Entity. We must now consider whether the word persona is ever used of Legal Persons other than individual human beings. Most of the relevant texts fall into two groups, one concerned with the hereditas iacens, the other with towns and their landed property. The word persona occurs in several passages of the Digest and the Institutes in connection with the hereditas iacens, the inheritance on which no heir has yet entered: and partly for that reason, the hereditas has been regarded by some civilians as itself a Legal Person. That view will .be discussed later; 1 the present question is not whether the hereditas was a Legal Person, but whether it was called a persona; and the answer is in the negative. A hereditas is said personae vice fungi,2 to represent, take the place of, a human being; the law ignores, for some purposes, the fact that at the moment no human being is owner, debtor or creditor. The dead man has ceased to play his part, he has ceased to wear his mask; soon the heir will put it on, step into his shoes, as we say, and continue the play ; but meanwhile the hereditas iacens provides a peg on which the mask can hang. The question our texts are chiefly occupied with is whether the hereditas represents the dead alle Rechtssiitze, die Rechte verleihen und Pflichten auferlegen, . . . linden auf Sklaven keine Anwendung'-rules of law which give rights or impose duties have no application to slaves. That is perfectly true, but very different from saying that slaves do not exist. It is equally true of animals and tables and chairs ; but we should be surprised to find a lawyer saying ' horses do not exist'. It seems clear that by 'do not exist' Schlossmann means 'are not capable of rights and duties', 'are not Legal Persons' ; which is the rendering of a-rrp6o-eunos that he most strenuously opposes. On the other hand it is quite possible that theological usage may have made easier the use of &-rrp6awncs napa Tois v6µ01s as an equivalent of pro nu/lo. 1 Chapter vu. :i D. 46. I . 22 ( ? interpolated. See p. 20, infra) ; D. 4 1 . 3. I 5. pr. : 'nam hereditatem in ruibusdam oice personae fungi receptum est'. The pr. is.very corrupt, but this sentence seems to be sound.

20

PERSONALI TY I N R O M AN PRIVATE LAW

man or the heir, whether the acts of a servus hereditarius, for instance, are to be construed as if the dead man were still alive, or as if the heir had already entered. Generally speaking, it is the legal character of the dead man that determines the rules applicable to his estate. Consequently we find 'hereditas personae defuncti, qui eam reliquit, 'Vice fungitur', 1 ' nondum enim adita hereditas personae 'Vicem sustinet, non heredis futuri, sed defuncti', 2 ' sed hereditas in plerisque personae defuncti 'Vicem sustinet' , 3 ' hereditas enim non heredis personam, sed defuncti, sustinet' .4 But this rule is not without exception, and we also find ' transit ad heredem, cuius personam interim hereditas sustinet' . 5 None of these passages says that a hereditas is a persona, only that it represents or is treated like one. One of the texts quoted takes us beyond the hereditas. This is D. 46. I . 2 2 (Floren tinus) : ' hereditas personae 'Vice fungitur, sicuti municipium et decuria et societas '. Interpola­ tion is strongly suspected ;6 but whether the passage was written by Florentinus or Tribonian, it does not say that any of these bodies are personae. It was certainly true in the time of Florentinus that some things, such as the making of contracts, normally done by and on behalf of personae, individual human beings, could be done on behalf of a hereditas iacens or a municipium ;7 and the text says no more than that. Another passage quoted8 to show that persona can be used of a collective person is D. 4. 2 . 9. 1 , where Ulpian has the words : ' si'Ve singularis sit persona, quae metum intulit, vel populus 'Vel curia 'Ve/ collegium 'Vel corpus ' . This 1

D. 30. I I 6. 3 (Florentinus). 3. 17. pr. D. 41. I . 34 (Ulpian). Cf. D. 41.

3 Inst.

2

Inst. 2. 14. 2.

4 I . 3 3 . 2, where a serous hereditarius 'ex persona difuncti r;ires assumit' . 5 D . 46. 2 . 24 (Pomponius). 6 See Schnorr von Carolsfeld, Geschichte der juristischen Person, vol. 1,

1933, p. 52, for references to Rabel and Scaduto. 7 That it was also true of some second-century societates is maintained below, p. 144 ; for decuriae, see pp. 32 and 101, infra. 8 Saleilles, Personna/itljuridiyue, 2nd ed., 1922, p. 77.

P E R S O NA

21

is interesting, as it shows he thought it possible, or at least conceivable, for a group ' metum infe"e ' . 1 But it is not very good evidence that he would have called a group a persona. It is true that there is a shade of difference between singularis and singu!us, and that the expression singula,is persona may suggest the possibility of a persona non singularis. But this argument cannot be pressed. If Ulpian had said singu/aris homo no one would have been surprised, and the meaning would have been exactly the same, ' an individual ' . The implication is not that a corpus is a persona, but that a corpus and a persona are two entities alike in their power of creating fear but different in that a persona is singu/aris, a corpus complex and composed of several personae acting as a unit. If they are not acting as a unit, they are singu/ares personae ; but whatever they do, ten men will never make one persona or eleven personae. ' Singu/aris' may imply the idea of a corporation, a uni­ versitas, which was familiar to Ulpian ;2 but not that a universitas could be called a persona. A very similar text is C. 2 . 5 8 . 2 . 5, where Justinian says ' sive pro una persona quis !item movere vo/uerit sive pro aliquo corpore ve/ vico ve/ alia universitate ' . Una persona is clearly contrasted not with duae singulares personae but with the universitas, which is not una persona though it may be ' une personne'. Two other texts are quoted from the Digest for singularis persona. D. 3 5 . I . 56 is concerned with conditional legacies. If a farm is left to A, conditionally on his paying ten, he cannot get part by paying part. But if it is left to A and B, each can get his share by paying his share. ' In eo vero, quod uni sub condicione /egatum est, scindi ex accidenti condicio non debet, et omnis numerus eorum, qui in locum eius substituuntur, pro singulari persona est habendus.' Here there is clearly no suggestion of a corporate o r collective person. Pro singulo o r pro uno would give the same sense. The rule to be applied is that normally applic' See p. 9 1 , infra, and Schnorr von Carolsfeld, p. 3 39. 1 Cf. p. 3 7, infra.

22

PE R S O N A L I T Y I N R O M A N P R I VATE LAW

able to a single legatee, not that appropriate to a joint legacy. D. 50. I 6. 19 5 . 1 (Ulpian) is obscure: ' ad personas

autem refer/Ur fami/iae signi.ficatio ita cum de patrono et /iberto /oquitur /ex: 1 " ex ea fami/ia ", inquit, " in eam jami­ /iam ": et hie de singu/aribus personis /egem /oqui cons/at' .

This may perhaps refer t o the well-known fact that a Roman fami/ia can consist of a single individual and a citizen sui iuris is none the less a paterfamilias because he has no wife or child. There is clearly no suggestion of any corporation or universitas, and whatever the truth may be about family ownership in primitive times,2 Ulpian would certainly not have said that a Roman family, husband, wife, sons, daughters, and slaves, composed a

persona.

Another text which may be quoted in this connection is C. 1 . 3. 48. 7 , part of which Saleilles3 paraphrases: ' Tout ce qui est legue a un rnonastere, a une Eglise, appartient a I'Eglise et d'une fo;on generate a la venerabi/is domus, en tant que personne certaine, persona certa.' This looks as if persona was applied here to the Church and to all charitable institutions. But the Latin is ' sin autem in

personam certam ve/ in certam venerabi/em domum respexit, ei tantummodo hereditatem vel /egatum competere sancimus'.

This cannot mean what Saleilles says, and the most natural way of taking the words is to make them contrast gifts to a domus with gifts to a bishop, an oeconomus, or a xeno­ dochus, who are all mentioned in this constitution. This gives excellent sense, and allows persona to bear its regular sense of 'a man •. There are, however, at least two passages in the litera­ ture of land-surveying where the word persona is used of a town. Frontinus, who died about A. O . 1 05, in his work

1 Twelve Tables, v. 8. a Cf. L. Wenger, ' Hausgewalt und Staatsgewalt im romischen Altertum ', in the Miscellanea Franuuo Ehrle, vol. 11, 1 927, pp. 1 If., and especially pp. 3off. 3 Op. dt. p. 143.

P E R S O NA

23

De Controversiis Agrorum, 1 contrasts two forms of words used in map-making : ' silvae etpascuapublica Augustinorum ', and ' silva et pascua ', or 'fundus Septicianus, Coloniae Augustae Concordiae' ; and of the second form he says : ' Haec inscribtio videtur ad personam coloniae ipsius pertinere.' The distinction is obscure, though the language is some­ thing like that in Gaius 2 . 1 I : ' ipsius enim universitatis esse creduntur' . But there can be no doubt that for Frontinus a colonia had a persona, and ad personam coloniae was another way, ad personam coloniae ipsius a more emphatic way, of expressing ad ipsam coloniam. The second passage, probably also from Frontinus, is preserved in two slightly different forms, with the commentary attributed to Agennius Urbicus, a Christian schoolmaster of the fourth or fifth century. On p. 80 of Lachmann's edition/ we read: ' Nunc ut ad publicas personas respiciamus, coloniae quoque loca quaedam habent adsignata in alienis finibus, quae loca so/emus praefecturas appellare. (Comment : harum prae. fecturarum proprietas manifeste ad colonos pertinet, non ad eos quorum fines sunt deminuti.) ' 3 This reappears in the cento called Commentum de Controversiis4 as: ' �aedam loca feruntur ad personas publicas attinere. nam personae publicae etiam coloniae appellantur. quae habent assignata in alienis finibus quaedam loca, quae so/emus praefecturas appellare. harum praefecturarum proprietates manifeste ad colonos per­ tinent, non ad eos quorum fines sunt deminuti.' Here again Frontinus seems rightly interpreted as identifying coloniae with personae publicae ; and it does not seem to fit at all well into the general usage of the word persona. We may perhaps conjecture that the surveyors, who were used to • Lachmann's Schriften der rom. Feldmesser, 1 848, p. 54, 11. 1 7 ff., esp. I. 2 3 ; Thulin, Corpus Agrimensorum Romanorum, vol. 1, 1, Leipzig, 1 9 1 3, 2 =Thulin, p. 40, I. 1. p. 46, 11. 16-23. 3 The credit of discovering this text belongs to Schnorr von Carolsfeld (p. 54), but he does not recognise the close connection that seems to exist between it and the extract from the Commentum de Contr(J'l)ersiis, which had been quoted before, e.g. by Schlossmann, p. 1 26. 4 Thulin, p. 63, 11. 20-24.

PERSONAL I TY IN RO M AN PR I V ATE LAW

24

diagrams and symbols, were particularly open to the influence of pictorial personifications. 1 Towns were repre­ sented on coins in human shape long before the Christian era, and Roman religion gave a deeper significance to such personification than we attach to it now : Father Tiber was a more real person than Father Thames, and Roma Dea than Britannia. One thing only is clear : that neither Frontinus nor Agennius is using persona as a legal term of art. Like Theophilus, they suggest questions, but do not justify any answer. Finally, Schnorr von Carolsfeld2 calls attention to the use in Christian writers of such expressions as ' in persona Christianorum '3 and ' ad personam populi huius ', 4 where there is something like personification of the community, or at least some emphasis on its being a community, not a haphazard plurality of individuals; and5 to the influence of the common Hebrew word 0 1.)fi, panim, which is translated by TTp6ac,mov, persona, and ' face ', and may be followed by the genitive of a man, a body of men, an animal, an inanimate object, or an abstract conception.6 We have now discussed all those uses of the word persona which seemed likely to throw light on the development of Legal Personality, and the light gained is extremely faint. Some texts7 suggest that persona can be used to mean the capacity for legal rights, or for some particular legal rights. Others 8 show a consciousness that the law does sometimes proceed as if there were a human being for rights to vest in, when in fact there is none; or9 a willingness to 'per­ sonify' a community, to use of a town language literally appropriate only to an individual. But nowhere is persona truly a technical term. Nowhere does it seem at all likely 1 Cf. Schnorr von Carolsfeld, pp. 5 5 f. ; Schlossmann, p. 126. 2 Op. cit. p. 54. Lactantius, Dt mortibui ptr1tcutorum, 48. 7. Hilarius, in Matth. l 2. 2 2 . 5 Schnorr von Carolsfeld, p. 56. For numerous references see Schlossmann, pp. 54f. 8 See pp. 19, 20, iupra. 7 See pp. 7-18, 1upra. 9 See pp. 2 2-24, 1upra.

3 4 6

P E R S O NA

that in using the word any writer had present to his mind the ideas called up in that of a modern lawyer by the phrases Legal Person, Legal Personality, Personne Juridique, Rechtsfahigkeit. Strange as it may seem, the word persona plays no part in the early history of Personality; and we must turn our attention to the less obvious but more f fruitful study of caput, corpus and universitas. CAP UT

A word which, in some contexts, corresponds more closely than persona to the modern Legal Personality is caput. From the sense of ' head', it is extended like persona, ' mask' (and still more like irp6crc,mov, 'face'), to mean both 'a man' and 'the position of a man'. Plautus uses it of slaves as well as free men, especially in the periphrasis tuum caput for tu ; 1 but also apparently in the sense of libertas.z So lawyers sometimes speak of a slave's caput, sometimes say he has none. In the familiar rule ' noxa caput sequitur' , 3 the caputfollowed is clearly that of the delinquent, who is normally a slave, and must mean his natural person, his body and soul, which persist through all changes in his legal position. So in D.4 . 5. 3. 1 Paul says that manu­ mission involves no capitis minutio because ' servile caput nullum ius habet' . Evidently a slave is or has a caput. But the lnstitutes4 explain the same rule by saying that the slave 'nullum caput habuit' ; we are a long way here from the literal meaning, and must suppose that the sense is something like 'Legal Personality'. Some such sense is required by the phrase capitis minutio itself, which goes back to the Republic.5 The thing that is here diminished 1

2

E.g. Miles G/oriosus, 3 26. E.g. Rudms, 929 : 'pollicitabor pro capite argentum ut sim fiber' ;

Mostellaria, 3

D . 47.

211.

2. 18;

P.

2.

31.

8;

G . 4. 77.

4

Inst. 1.

16.

4.

5 Cicero, Topica, 4. 1 8. Horace assumes its familiarity in the Regulus Ode, 3 . 5, 11. 41-3 : Fertur pudicae coniugis oscu/um Paroosr1ue natos ut capitis minor Ab se remwisse.

26

PERSONAL ITY IN R O M AN PRI V ATE LAW

or destroyed is clearly position in the eye of the law, civil capacity, Legal Personality. So too iudicium capitale is not necessarily one that may en d in decapitation ; enslavement and deportation are also forms of capital punishment. 1 But we need not go further into the thorny problems of capitis minutio, its meaning and history ; for whoever had or had not caput, however it was or was not lost, it is never attributed to any being other than a natural man, to any town 2 or college, in short to any Juristic Person.3 C OR P US

Corpus, on the other hand, meaning a ' body ', can obviously be used appropriately of a ' corporate body' and is very commonly so used. Any set of men who are for any pur­ pose regarded as a group may be called a corpus, as we are told in D. 4 I . 3 . 30. pr. (Pomponius, L. xxx ad Sab.) : ' tertium (sc. genus corporum), quod ex distantibus constat, ut corpora plura [non]4 soluta, sed uni nomini subiecta, veluti populus, legio, grex' . Schnorr von Carolsfeld5 says indeed that corpus here is ' bestimmt gearteter Formbegriff; der lnhaltsbegriff braucht sich mit diesem in keiner Weise zu decken ' . If this means that Pomponius' definition covers groups or classes or categories not normally thought of as groups or likely to be called corpora, it is true. ' Men named John ', ' all mountains higher than Mont Blanc' are uni nomini subiecta, but are not groups in the same sense as a family or a mountain range. ButPomponius' examples are all groups of the second kind, and it seems fairly clear 1

D. 48. 1 . 2. a A town may indeed be called caput regio11is, the capital of a country ; but that is different. 3 On caput, see Clark, History of Roman Prioate Law, vol. u, 1914, pp. 457-Ol i\ e1aO"WTal i\ mi i\eiav olx6µevo1 i\ Eis eµTropicxv, OTl o:v TOVTWV 6ia6wVTal Trpos cxi\i\rii\ovs, tv O'WllaTOS. Some churches did belong to individuals, who built them on their own estates, but these 'Eigenkirchen' are not as important in the history of Personality as in that of Patronage. See Knecht, op. cit. pp. 3 3 ff. ; Wenger, Zum Cippus Abel/anus, 1915, p. 63 ; Stutz, Die Eigtnkircht, 1895.

C HARITIES

1 75

transformed their precarious possession to lawful and secure ownership; but collegia they remained. Gradually, however, as the Church grew in numbers and in centralised organisation, this conception became more and more strained. It was probably felt to be anomalous for the Catholic Church to appear in any respect as a mere plurality of isolated bodies; and a college the size of a diocese was by old standards a monstrosity. A certain abstract unity was attained by attributing the ownership of all Church property either to God Himself! (the old pagan gods having nominally owned property in the past, as the idols of India do to-day2), or to His Body the Church as a mystical Person. But this could not satisfy lawyers: as Maitland says, 'persons who can never be in the wrong are useless in a court of law' , 3 Therefore a more practical arrangement was sought and found by magnifying the office of the bishop and modelling each diocese, not on the old colleges, but on the Empire. A ' haughty prelate' such as Basil of Caesarea might almost have claimed that he was owner of all Church property in his diocese, as Caesar of all fiscal property in the Empire. Certainly the bishops had very wide powers of administration. They and their nominees, the oeconomi,4 were forbidden to alienate the land, serfs, and annonae civiles of the church,S or the sacred vessels and vestments,

1 Testators sometimes instituted Christ as heir, C. 1 . 2. 25. pr. ; Nov. 1 3 1. 9. pr. i Pramatha Nath Mullick v. Pradyumna Kumar Mullick ( 1 925) L.R. 52 Ind. App. 245. See Duff, 'The Personality of an Idol', in Cambridge Law Journal, 1 927, p. 42. 3 Collected Papers, vol. m, p. 225. 4 C. I . 3. 32. 4 : 'quem dispensatorem pauperum, idest oeconomum ecclesiae, episcopi tractatus degerit'. Cf. Oxy. Pap. XVI . 1 900 (A.D. 528), where a receipt is addressed to the cathedral church under the bishop of Oxyrhynchus through Phib the o1Kov6µos. Cf. also XVI. 1894 (-rrpovo1rn'1s), 1 898 (olKo­ v6µ05 of a voaoKoµeiov), 1993 ; and Maspero's Cairo Papyri, vol. 11, p. 94, no. 67 151, I. 147. 5 C. 1. 2. 1 4. pr. ; N. 7. 1 ; N. 5 5; N. 120. 1. pr. Annona cioilis ('IToAtTIKT} a!-r11a1s) is a transferable right to share in the doles of corn which were distributed at Constantinople, Rome, and Alexandria. See C. I I . 25 ; also I I. 23, 24 and 28.

1 76

PERSONAL I TY I N ROMAN PRIVATE LAW

except to ransom prisoners of war. 1 But this very pro­ hibition implies that if anything could be alienated, it was the bishops who would carry out the transaction. It is moreover significant that the rule applied not only to what had been given to the church, but to all property acquired in any way by the bishop after his consecration except from near relations; 2 whether the church's property belongs to the bishop or not, the bishop's belongs to the church, and, with the exception referred to, the law could not distinguish between res ecclesiae and res episcopi. In actual practice we find the bishop allowed very wide powers of acting as the paterjamilias of his diocese. He and his assistants the oeconomi can make contracts for the church,3 mutuum,4 for instance, locatio,5 and hypotheca ;6 can sue;7 can grant a usufruct, 8 or, under strict but often changed conditions, an emphyteusis;9 and can sometimes even alienate Church lands 10 and, aswe said above, sacred vessels and vestments. II In fact a bishop has as complete control of Church property as many domini had of their own ; 12 but there is, of course, a fiduciary element in his position. He holds the property in trust, if the word may be used untechnically, for God and His Church on the one hand, and for the people, especially the poor, of his own diocese on the other. But the corporateness of the congregation 1

C. I . 2, 2 1; N. 7. 8; N. 120. I O. C. 1 . 3. 4 1. 3-10; N. 123. 4; N. 131. 13. pr. 3 C. 1. 2. 24. I; Maspero, Cairo Papyri, vol. u, no. 67168. 6 Ibid. 5 N. 120. 5 . pr. 4 N. 120. 6. 3. 8 C. I . 2. 14. 9· 7 C. I . 2. 15. 2; C. I . 2. 2 1; N. 120. 7. I. 9 C. 1. 2. 24. 5-15; N. 7. 3. pr., 2; N. 5 5 . 2; N. 120. I . pr., I. 2; N. 120. 6. I . 10 Very few texts say who alienates, where it is allowed. N. 6 5. 1, dealing with Mysia, has 'liceat • • • oeconomis • • • et • . . episcopo !Jendere' ; N. 40 Oerusalem) and N. 46 (applying to all churches outside Constantinople, where S. Sophia was comparatively rich and could raise money without selling land, N. 3. pr.) require a vote of the assembled clergy; see also C. 1. 2. 17. 2; N. 54. 2; N. u9. 10; N. 120. 1 . pr.; N. 120. 7. pr., 1. II Arg. C. I . 2. 21; N. 7. 8; N. 120. IO. 12 See Buckland, Text-Book, 2nd ed. p. 276. 2

C H ARITIES

1 77

has receded out of sight; the bishop is more like a serous dei, whose diocese is his peculium, with the oeconomi as vicarii, than like the magister quinquennalis of a free and self-governing college. The law was satisfied with the safeguards imposed, and no Christian Emperor would interfere gratuitously with a change in ecclesiastical organi­ sation which must damp any remaining sparks of demo­ cratic independence and make men more submissive to all authority, including his own. It is true that some property was appropriated to individual churches or parishes, as we shall see it was to particular monasteries and foundations. Thus the institution as heres of Christ or. a saint was construed as a gift to the local church, or the nearest and poorest church dedicated to that saint. 1 But the ordinary unit seems to have been the diocese, the usual administrators, except in monastic houses, the bishop and the oeconomi, who must have stood to him much as the procuratores fisci did to the Emperor. Thus when Justinian says a thing belongs to the Church, we must understand him to mean that in the language of piety it is given in ownership to God, and in the reality of commerce and private law it is normally at the disposal of the diocesan bishop. And the legal ideas which have contributed to bring this about are a development of colleges, an analogy from pagan res sacrae, and an analogy from the imperial

fiscus.2

Such was the position at private law of Church property; and to the Church belonged many, probably most, of the establishments and funds which we may group together as 'charitable foundations', and roughly define as property devoted to the eternal welfare of the founder and the temporal good of the sick and needy. 3 The group is C. 1 . 2. 25 ; N. 1 3 1 . 9. Cf. Herman, Bentfizia/fQtstn, p. 255. Schnorr von Carolsfeld (p. 20) quotes these two sentences from my Charitable Foundations, p. 89, as opposed to his view. I cannot approve his use of the term Anstalt or his assertion that the 'Anstaltsbegriff' meets us in Justinian ; see p. 174, n. 1 , supra.. But in other respects we seem to agree fairly closely. 3 Cf. C. 1. 3. 4 1. 27. 1

i

1 78

PERSONALI TY I N R O M AN PRI V ATE LAW

large, and not sharply defined; we may perhaps exclude the churches themselves, but they and the oratoria1 are sometimes mentioned, monasteria very often and asceteriai occasionally, in the lists of such foundations. All these are certainly included in the usual generic name of evcxyeis olK01, 3 'l)enerabiles domus, which also covers the xenon or

xenodochium, ' locus 'l)enerabilis in quo peregrini suscipiuntur' ;4

the ptochium or ptochotrophium, ' in quo pauperes et infirmi homines pascuntur' ; the nosocomium, ' in quo aegroti homines curantur' ; the orphanotrophium, ' in quo parentibus orbati pueri pascuntur' ; the gerontocomium, ' in quo pauperes et propter senectutem so/am infirmi homines curantur' ; and the brephotrophium, ' in quo in/antes aluntur'. They are not divided by hard and fast lines. Thus we find a xenon where we should expect a ptochium in C. 1 . 3. 4 8. 3, 5, 6, and where we should expect a nosocomium in Maspero's Cairo Papyri, vol. 11, no. 67 15 1, 1. 1 83. Much the same rules applied to all classes, and there was no need to distinguish sharply between them. We do not learn many details about these Houses from the Corpus Juris: the Fathers might yield something to a diligent search. There seems to have been only one

I C. I. 2. 15 ; N. 54. 2; N. 131. 10; N. 131. 15. I . 2 C . I . 3. 34. pr. ; N . 7 . 6 ; N. 59. 7 . Knecht, p . 58, says O:O'KTJ"IT) pta are 'Biisserinnenhauser, in denen gefallene ledige Frauenspersonen oder von ihren Mannern getrennt lebende Frauen und Witwen einem strengen Bussleben sich gewidmet hatten', but his references seem to have been wrongly printed. In C. I . 3. 5 3. 3 we find a sanctimonialis r1irgo living in an asceterium ; the suspected and convicted women of N. 123. 30 and N. 134. 10 are sent to µovacrnipta, not O:aKfJTT}pta; and Procopius calls Theodora's penitentiary µovacrnip10v (Anecd. 17. 5 , De Aedif. 1. 9. 7, 10) and 61atTIJ-nip10v (De Aedif. 1 . 9. 9), not O:aKfJTT}ptov. It seems from these passages and those quoted by Dirksen's Manuale from Julian's Epitome (see infra) that an o:cnXeiov, how was this establishment a ble to buy food for the inmates and protect its property in the courts ? We hear of charities being given many exceptional privileges, particularly favourable treatment in respect of gifts and legacies, an unusually long period of usucapion, exemption from various taxes. But they are never expressly given the bare necessaries of life, the right to own and the right to sue, the right to buy and the right to sell, the right to exact their debts and to vindicate their property. All the texts dealing with them seem to assume that they already have at least as many rights, as full a measure of Personality, as a peregrinus under the Republic or a college under Tiberius. If none but human beings could have these rights without State concession, how did the charities get them, and why has the process left no trace in the texts ? It has been suggested that every Foundation required a ceremony of consecration which brought it under the mantle of the Church; but this is obviously untrue of pious, but not ecclesiastical, foundations. 1 The passages which give the bishop a right to act if the heirs or nominees do not themselves set up and carry on the institution clearly imply that private persons could create and maintain such an institution without any special authorisation of any kind from Church or State. Again it has been suggested that the authorisation of gifts to charities implied a general grant of Personality to all such foundations like the old grant of ius coeundi to burial clubs; and there may be some truth in this, as also in the view that the Personality of inde­ pendent domus is a tacit extension of the rights allowed to Church-owned institutions. 1 The texts quoted (N. 5 . r; N. 67. r, 2; N. r3r. 7) refer only to churches, oratories, and monasteries.

C HARI TIES

20 1

But it is not clear that a sixth-century lawyer would have attached any meaning to the phrase ' corpus habere ', or that he would have admitted, when it was explained to him, that corpus habere required a State concession. The words only bear the meaning required here in one passage, the first fragment of the title �od cuiuscumque universitatis nomine vel contra eam agatur. 1 It is there said, on Mitteis' view, that corpus gives, or is, the right to own corporate property and take part in legal transactions, like a town, through the medium of an actor. The word corpus seems to have been misunderstood by whoever recast D. 3. 4. 1 . pr., 2 and would probably have been unintelligible in this connection to Tribonian. In any case the word would only be applicable to Vereinspersonen, corporations aggregate. Only a Person that is a corpus can have corpus, just as only a persona could have a persona. Where there is only a House or fund with no body of men to own it, the phrase is out of place. This cavilling at words may seem pedantic, but it is significant that the Romans had no better word for 'Personality' than corpus, no word that could be applied to the capacity of a corporation sole or a Stiftung. The absence of a word suggests the absence of the idea. Besides, it is corpus habere, not 'Personality' or any other periphrasis, that Gaius tells us required State con­ cession. 3 If we are right in taking this to mean ' Per­ sonality', it follows that in the first century of the Empire collegia and societates could only acquire the capacity to own and sue by a special grant of the Emperor or the Senate. But under Marcus Aurelius at latest these rights were implied in the ius coeundi ; and from the time of Gaius to that of Justinian we never hear again of any separate grant of capacity. The idea of corporate rights and liabilities only gradually penetrated the Romans' brains. At first no doubt it seemed to them as absurd and iniquitous for 1 D. 3. 4. I. See pp. 141 ff., supra. 3 D. 3 · 4· r. pr.

2

See p. I 48, supra.

202

PERSONALITY I N ROMAN PRIVATE LAW

a man to defraud his creditors by saying that he had given property to a college and could not take it back, 1 or that they must look for payment not to him but to a univer­ sitas,2 as the limited liability of a Joint Stock Company seemed to W. S. Gilbert. 3 In the early Empire this curious and dangerous privilege was granted only to those who could either demand it or be trusted to use it innocently. But it was s0on found that the bomb did not explode, and all special restrictions were removed. It is abundantly clear that to a Roman lawyer the reason why colleges4 needed authorisation was to prevent conspiracies and dis­ order, not to restrict corporate ownership. The hardship on creditors was slight, and the horror of Mortmain, which seems natural to a lawyer trained in any post-feudal system of law, was absolutely unknown to Rome and to Justinian. 5 Thus to the question 'Why were the charities allowed to own property ?' it is a right and sufficient answer to say ' Why not ?' and ' corpus habere required a state con­ cession' is not a valid rejoinder. It would be unseemly to suppose that the charitable institutions would be treason­ able or riotous; and no 'juristic Person' of any kind had ever been refused on any other ground those rights which, when exercised by a group, had once been called corpus. It had long been regarded as proper by nature to a town to own and sue, without authorisation of any kind; and there was no third kind of universitas to argue from. Testa­ mentifactio was now as always treated as a thing apart; but there was no precedent later than A.D. 200 for refusing to let any lawfully existent god, group, house or fund own any kind of property or bring any kind of action through a duly accredited representative. But we are again in danger of attributing too clear 2 Cf. D. 3. 4. 7. 1 . See pp. 13 1 f., supra. 3 Cf. 'the Duke of Plaza-Toro, Limited', and ' Utopia, Limited', passim. 4 Private societates seem never to have desired corpus ha/Jere. 5 Charities were encouraged to own land, C. I. 3. 48. 3. 1

C H A R ITI ES

203

a conception to the Byzantines. It has been implied that they recognised a Foundation as a ' juristic Persoh ', that they classed it with towns and colleges. If they appear together in some texts, that proves only that all three were convenient trustees for charity, not that they were recognised in theory as three species of a single genus. Not all charities were universitates ; where there is a staff it can be so called; but neither the captives, who cannot be conceived as a group, nor the single administrator, nor the fund itself, could be called a universitas; and there is no other word to translate ' juristic Person '. The word is missing because the idea is missing. We have seen that the Romans knew several kinds of what we call juristic Persons. They allowed them to exercise all the rights which make up what we call Personality. But they never theorised about them, they never discussed the nature and origin of a right-and-duty-bearing unit. If they had, we must have heard of it; and there is no faintest echo. They never abstracted from the variety of particular juristic Persons the unified idea of a juristic Person; and if juristic Per­ sonality is an abstract, general, theoretic conception, there was no such thing in Roman law as juristic Personality. NOTE ON T H E E X P RE S S ION 'PIAE CA UBAE' It is usual for writers on Roman Law to speak of the B yzantine charities as 'piae causae', and some explanation is needed of the reason for dropping so convenient a term. The present writer was converted partly by a learned and ingenious, though not very lucid and sometimes unconvincing article/ and partly by an attentive study of the texts that contain the phrase. Cugia was roused by the deductions which German and other scholars, and especially Brinz, had drawn from the expression, to discover and explain its true meaning. We need not discuss his arguments in detail, but we may summarise his most important conclusions. 1 ' II Terrnine "Piae Causae", contributo alla terminologia delle persone giuridiche nel diritto Romano', in 8tudi Fadda, Naples, vol. v, 1 906, by S. Cugia.

PERS O N A L I TY I N R O M A N PRIVATE LAW

204

In the first place the phrase is very . rare. Cugia has searched all the surviving constitutions of Roman Emperors, from the Gregorian Code to Justinian's Novels, and finds it (or the Greek evae�eis ahlcu) only in three constitutions of J ustinian and two of his Novels, making not more than a dozen uses in all. This in itself is enough to warn us not to use the word too freely as a technical term: observing that these same foundations are called evayeis 0IK01 twenty-eight times in one chapter of one Novel.1 Cugia also points out that the meaning usually assigned to causa in this phrase is strangely different from any of its other meanings. These are legion, many of them defying translation into English ; but none of them shades at all readily into that of House, Institution, Establishment, Foundation, and there seem to be no intermediate uses which might explain how the meaning changed. These arguments are enough to make the reader feel doubts as to the propriety of such a phrase as ' the piae causae were forbidden to sell land ' or ' the Principal and staff of a pia causa' ; and the feeling is deepened by studying the actual texts and seeing how easily causa can everywhere be given a more familiar meaning. It may be worth while to quote them very briefly and suggest translations or explana­ tions. C. I. 2. 1 9, donationes super piis causis factae. Either ' to promote pious purposes' or 'inspired by pious motives'.2 Again, nu/Ii danda iicentia quacumqu_e aiia causa quasi pietatis iure suhnixa (neut. plur.) . . . (introducere) : ' relying on any other pretext'. C. I. 3. 28. I , memoratae causae proficere, ' to help in carrying out the said purpose'. Compare piae rei negotio in h. 1. pr. , piae deficientium voluntates in § 2 and pro huiusmodi causa, ' for such a purpose' or ' from such a motive', in § 5. C. 1 . 3. 45. Ia, 6owai els evo-e�eis ah(as, ' to carry out pious purposes'. The same in C. 8. 53. 34. Ia, (donationes) quae in causas piissimas procedunt. N. 65. I . 4, si . . . in aliam causam consumpserint, iicet piissima sit, et non in praedictas duos tantummodo causas. Here in aliam causam might mean ' to carry out another purpose', but seems to be rather ' on another head' in an account. The use is not uncommon; compare, for example, C. 8. 42. 1 , C. 4. 28. 7. 1 , C. 5. 1 4. I I . I and other references in Cugia, pp. 20 and 21. I

2

N.

1 20.

6.

Savigny, System des heutigen Romischen Rechts, vol. n, 1 840, p. 262 : ' dieser Ausdruck bezeichnet den frommen Zweck der Schenkung, nicht die juristische Person als Donatar.'

C H ARITI E S

205

N. 1 31 . 6, 'els evael3eis aiT{as KCXTaAEAe1µµevc,>V, 'to carry out pious purposes'. So TCX . • • Tais evael3fo1v ahiais &cpop1oeeVTa (N. 1 3 1 . 1 1. 3) ; iva • • • al . • . evael3eis ahiat 1TAT]poo0oocnv (N. 1 3 1 . 1 1 . 4) ; TO: els evael3eis ahias KCX'TaAEAE!µµeva, and ,rpoxoopeiv • . • els Tas ahfas els &s KCXTaAeAe11TTa1 (N. 1 3 1 . 1 2. pr.) ; el 6e AT]yarov irap6: Tivos efs evael3eis ahfas KCXTaAe1cp8efT] (N. 1 3 1 . 1 2. 1 ) ; and els lfAAas evael3eis ahfas, 'to carry out other pious purposes' (N. 1 3 I . 1 3. pr.). It is clear that in many if not all of these passages we can get an equally good sense by taking pia causa to be the foundation itself. The glossarists are said to have so taken it and so used it themselves. But in Justinian it can always have some other meaning; it is certainly not a regular technical term; and we shall do well to avoid using it in talking about the institutions of Justinian's time.

C H A P T E R IX. R O M A N LAW A N D LEGAL P E RSON ALITY We have now to consider what morals, if any, can be drawn from the foregoing pages, what ammunition they can fairly supply to the embattled jurists of the present day. Controversy has long raged, on the Continent, about the nature of Legal Personality. It has had echoes in this country, but not attracted much notice; for, as Maitland says,1 'a doctrine of Corporations, which probably speaks of fictitious personality and similar artifices, can only con­ cern some juristic speculators, of whom there are none or next to none in this country'. Moreover, the problem 'does not get the attention that it deserves from specula­ tive Englishmen . . . because it is shrouded from their view by certain peculiarities of the legal system in which they live '. 2 Maitland showed 3 that by vesting property in trustees, rather than in corporations or associations, English lawyers have evaded many questions that have caused difficulty abroad. Others, especially those concerning trade unions, have been dealt with by Acts of Parliament dictated more by political than by juridical considerations. Never­ theless, when theories are in the air, it is hard for judges to ignore them altogether, and doctrines of Legal Per­ sonality may have influenced the judges in some important modern cases, even if they found less slippery ground to rest their decisions on. Thus in the Taff Vale case 4 it was 1 Gierke's Political Theories of the Middle Age, 1 900, Translator's Introduction, p. ix. 3 Maitland, ' Moral Personality and Legal Personality', Collected Papers, vol. 111, 1 9 1 1 , p. 3 0 5. 3 'Trust and Corporation', Griinhut's Zeitschrift far das Prioat- u11d Ojfmtliche Recht, vol. xxxu ; Collected Papers, vol. 111, pp. 321-404. 4 Ta.ff /Tale Railway Co. v. Amalgamated Society of Railway Seroants, (1901] A.C. 426. Very similar questions arose in the American case of U11ited Mine Workers v. Coronado Co., 259 U.S. 344.

ROMAN L AW AND LEGAL PERSO NAL I TY

'2 0 7

declared that Parliament had created a corporate body which was not a corporation,1 and must have intended that it should be suable in its registered name and liable for the torts of its agents. This may not imply any definite theory, but is at any rate inconsistent with the doctrine that only individuals and corporations can own or be sued. In the Free Church of Scotland case2 the question was which of two bodies was entitled to claim property held in trust for the Free Church. The General Assembly of the Free Church had voted by an overwhelming majority for union with the United Presbyterian Church; it was accused by the minority of forsaking its former principle of Establishment and doctrine of Predestination; and both the innovating majority and the conservative minority claimed to be the only true Free Church. The House of Lords' decision in favour of the minority suggests not only that the Purpose of an association is the most impor­ tant thing about it, but also that the original Purpose is decisive and can never be changed. Lastly, the case of Daimler Company, Limited v. Conti­ nental Tyre and Rubber Company (Great Britain), Limited3 produced several interesting opinions on the character of a corporation. Confronted by a company registered and incorporated in England but with 24,999 of its 25,000 shares held byGermans, Lord Halsburysaid, 4 surprisingly, s a corporation 'is, in fact, a partnership in all that con­ stitutes a partnership except the names, and in some respects the position of those who (sic) I shall call the managing partners'. Lord Atkinson, on the other hand, said : 6 'I do not think that the legal entity, the company, can be so completely identified with its shareholders, or the majority of them, as to make their nationality its I

P. 442.

3

( 191 6)

2

[1904) A.C. 5 1 5 . P. 3 1 6 .

Free Church of Scotland v. Lord O!Jertoun, 2

A.C . 307.

4

5 In view of his judgment in Salomon v. Salomon and Co., 6 P. 3 27. 2 2 . See p. 2 1 5 infra.

A.C.

[1 897]

208

PER S ONALI TY I N R OM AN P R I V ATE LAW

nationality or their status its status, or it an alien enemy because they are alien enemies, or to give it an enemy character because they have that character.' Lords Shaw of Dunfermline and Parmoor held that the company, being registered in England and carrying on business in England, was not an enemy company or a company of an enemy character. But all agreed that the company's secretary had no authority to sue, and dismissed the appeal on that ground, leaving all larger questions open. Such are the issues to which theories of Legal Personality are relevant. It will now be convenient to explain the four main theories, before discussing what support they can find in the doctrines or the language of Roman lawyers. They are the Fiction Theory ofSavigny, the Realist Theory of Gierke, the Symbolist Theory ofJhering and the Purpose Theory of Brinz. The first-named must be treated at some length because it and it alone has been generally supposed, by friends and enemies alike, to rest on Roman foundations. The others are less elaborate and can be summarised briefly. Something will be said of the theories' practical implications, and of their standing in English law, little or nothing of the metaphysical doctrines sometimes ad­ duced in their support. The Fiction Theory is commonly regarded as orthodox in England and has received more lip-service than any other from English judges and writers. Those who dislike the theory may hope that the tradition of its orthodoxy has received a death-blow from Sir Frederick Pollock's essay 'Has the Common Law received the Fiction Theory of Corporations ? ' 1 but it is certainly not dead yet. It is also commonly supposed that the Fiction Theory was held by the Romans. This was most strongly maintained by 1 Written for the Festschrift offered to Professor Gierke for his seventieth birthday (Weimar, 1911) : reprinted 27 L.�.R. 1911, p. 219, and in Essays in the Law, I 922, p. I 5 I . The reader is referred to this essay for the earlier English law and especially for the case of Sutton's Hospital, IO Rep. 23a, and Coke's statement that 'a corporation aggregate of many is invisible, immortal, and rests only in intendment and consideration of the law'.

ROM AN LAW AND L EGAL PERSONALITY

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Gierke. He was for pinning the Roman jurists to Savig­ nianism 1-whether rightly or wrongly we shall discuss later-and so obtaining an artistic contrast between the fictitious Roman universitas and the real German Genossen­ schaft or fellowship. It is important in reading Gierke, a most persuasive writer,. to understand this bias. Every­ body knows that Gierke was a Realist, and it is tempting to assume that where Gierke sees Fictionism, in Ulpian for instance or Innocent IV, nobody else is likely to see Realism. That is a mistake. Gierke is a preacher as well as a historian, and his gospel is that the Germans were Realists and the Romans were nothing of t_he kind. The best known English accounts of the Fiction Theory are those of Maitland, a Realist, and Salmond, a staunch adherent of Savigny. Maitland says : 2 'Besides men or "natural persons ", the law knows as "subjects " of proprietary rights certain fictitious, artificial or juristic persons, and as one species of this class it knows the corporation. We must carefully sunder this ideal person from those natural persons who are called its members. It is capable of proprietary rights; but it is incapable of knowing, intending, willing, acting. The relation between it and the corporators may best be compared to that between pupil/us and tutor, or that between a lunatic and the committee of his estate. By the action of its guardians it can acquire property, and, if it is to take the advantage of contracts, it must take the burden also. To allow it possession is difficult, for possession is matter of fact; still after hesitation the Roman lawyers made this concession. An action based upon unjust enrichment may lie against it; but it must not be charged with delict. To attempt to punish it is both absurd and unjust, though the State may dissolve a noxious group in an administrative way. Being but a fiction of the law, its personality must 1

The phrase is Maitland's, Political Theories, p. :uvi. Political Theories, p. xx. Compare Savigny, System des heutigen Romischen Rechts, vol. u, I 840, pp. 282-4. :i

2 10

PER SONAL I TY IN R O M AN P R I V ATE LAW

have its commencement in some authoritative act, some declaration of the State's will.' This ' Concession Theory ' follows logically from the Fiction Theory, though historic­ ally it is much older. ' Finally, it may continue to exist though it no longer has even one member.' Salmond says: 1 ' A legal person is any subject-matter to which the law attributes a merely legal or fictitious personality. . . . The law, in creating legal persons, always does so by personifying some real thing. Such a person has to this extent a real existence, and it is his personality alone that is fictitious. ' Again : 2 'Every corporation involves in the fi rst place some real person or persons whose interests are fictitiously attributed to it, and in the second place some real person or persons whose acts are fictitiously imputed to it. A corporation, having neither soul nor body, cannot act save through the agency of some representative in the world of real men. For the same reason it can have no interests, and therefore no rights, save those which are attributed to it as a trustee fo r or otherwise on behalf of actual human beings. Whatever a company is reputed to do in law is done in fact by the directors or the shareholders as its agents and representatives. Whatever interests, rights, or property it possesses in law are in fact those of its shareholders, and are held by it fo r their benefit. Every legal person, therefore, has corresponding to it in the world of natural persons certain agents or representatives by whom it acts, and certain beneficiaries on whose behalf it exists and fulfils its functions. Its representatives may or may not be different persons from its beneficiaries, for these two capacities may or may not be united in the same indi­ viduals. The shareholders of a company are not merely the persons for whose benefit it exists; they are also those by whom it acts. In the case of a corporation established fo r charitable purposes it is otherwise, for the beneficiaries may have no share whatever in the management of its affairs. 'The representatives and beneficiaries of a corporation 1

Jurisprudence, 8th ed. 1930, p. 3 36.

2

Pp. 343 ff.

ROMAN LAW AND LEGAL PERSONAL I TY

211

must not be confounded with its members. These last are, as we have seen, the individuals who form the group or series personified by the law, and who so constitute the corpus or body of the fictitious person thus created... . A man's privileges and responsibilities in respect of a cor­ poration depend on whether he is one of its representatives or beneficiaries, not on whether he is formally accounted by the law as one of its members.... 'When a natural person acts by an agent, the authority of the agent is conferred, and its limits are determined, by the will and consent of the principal. In general only those acts of the agent are imputed by the law to the principal, which are within the limits of the agent's authority as thus created and circumscribed. But in the case of a corporation it is necessarily otherwise. A legal person is as incapable of conferring authority upon an agent to act on its behalf, as of doing the act in propria persona. The authority of the agents and representatives of a corporation is therefore conferred, limited, and deter­ mined, not by the consent of the principal, but by the law itself.' This doctrine is rational, coherent, and for the most part dear. It is perhaps unfortunate, though traditional, to use the word 'agent' of a person authorised by the law to act on behalf of a fictitious Person : since the corporation does not, cannot, appoint its agents, the ordinary principles of agency ·can only apply in a modified form. 1 And it is not easy to see exactly what the fiction is. The 'subject­ matter' personified is admittedly real; 'it is his personality alone that is fictitious'. But 'so far as legal theory is concerned,2 a person is any being whom the law regards 1 E.g. ' no one can appoint an agent who is not otherwise capable of entering into contracts', Anson's Law of Contract, 16th ed. 1923, p. 404 (changed in 1 7th ed.). ' It seems to be generally admitted, that the creation ofthe relationship of principal and agent must now always, by English Law, be referred to an agreement between the parties', Jenks, Digest of English Ci'Oil Law, 2nd ed. 1 9 2 1 , vol. 1, p. 52 note. • Salmond, op. cit. p. 329.

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as capable of rights or duties', and it is an indisputable fact that the law so regards corporations. What is really meant by saying that the personality of a corporation is fictitious seems to be this : to a Fictionist, a corporation is, as Maitland puts it, incapable of knowing, intending, willing, acting; but the law feigns it to be capable, treats it as if it was capable, of doing all these things. Perhaps the most evidently fictitious Persons to be met with in English law reports are the Hindu idols whose affairs sometimes come before the Privy Council. They are 'juristic entities', with the power of suing and being sued; that is to say they are juristic Persons. But when Lord Shaw of Dunfermline talks 1 of an idol's will and interests-' the will of the idol itself . . .must be given effect to', ' the idol is not otherwise represented in the proceedings, though the result might conceivably vitally affect its interests '-and is of opinion that the idol should appear by a disinterested next friend appointed by the court, it is hard to doubt that there is fiction in the air. Lord Shaw did not believe that the idol could express its will, or had any will to express; therefore the law or the court must appoint someone whose declaration of the idol's will should be deemed to be the idol's own declara­ tion. How far corporations resemble idols, and how far they resemble natural men, is a large question into which we cannot go deeply. Certainly ordinary people habitually think and talk of corporations as taking decisions and appointing agents. Such language could be found in every volume of the Law Reports. It may be loose language, but it shows at least that our judges are not altogether pe:.-meated by the Fiction Theory. Our readiness to hold corporations liable for torts would shock Savigny, 2 but seems to follow logically from our law, itself anomalous, 1 Pramatha Nath Mullick v. Pradyum11a Kumar Mullick, (1925) L.R. 52 Ind. App. 245. See Duff, 'The Personality of an Idol', in the Cambridge 3 System, vol. 11, pp. 317-23. Law Journal, 1927, p. 42.

R O M A N L A W A N D L E G A L P E R S O N A L I TY

2IJ

of master and servant-provided that not only the secretary and subordinate officials but also the directors and even the shareholders assembled at a general meeting are re­ garded as servants of the corporation. Criminal liability, now clearly recognised, is less easily defended. The doctrine of respondeat superior is alien to our criminal law, and its introduction by modern statutes must be regarded by orthodox Fictionists as a blot on our legal system, a blunder of our ignorant but omnipotent Parliament. It is unlikely that English lawyers will ever be true Savignians-the doctrines of that faith are too remote from ordinary thought and speech for so practical a class. But it can hardly be denied that there is something fictitious about a modern limited liability company. The Realists' Genossenschaft or Fellowship is a group or ' body', whose ' members' meet together and reach decisions which are then regarded as the decision of the ' group-will '. But the original members of a company, the signatories of its memorandum and articles of association, may be seven clerks who in fact never have any voice in the company's councils. Even when the company is fully fledged, it i s hard t o see a ' real Person' in a list o f many thousand shareholders, only a handful of whom ever come to a meeting-to say nothing of such complications as shares without voting rights. Here it seems much more reason­ able to say with Savigny that the acts of the company's lawful representatives, done in the manner prescribed by law, are imputed to the company, j ust as the acts of an idol's guardian are imputed to the idol, than to maintain that the shareholders scattered over the face of the earth compose a living organism and that the resolutions passed in their name express a group-will. 1 An interesting problem is presented by the ' one-man company', and was discussed by the Court of Appeal and the House of Lords in the case of Salomon v. Salomon 1

me.

I have to thank Professor A. L. Goodhart for pointing this out to

2 14

PERSONALI TY IN R O M AN PRI V ATE LAW

and Co.1 Mr Salomon sold his business to a limited company with a nominal capital of 40,000 shares of £ 1 each, the company consisting only of the vendor, his wife, a daughter and four sons, who subscribed for one share each. Twenty thousand additional shares were issued to Mr Salomon, and also debentures forming a floating security. Bad times came, the company was wound up, and all its assets were claimed by Mr Salomon, asdebenture­ holder, leaving nothing for unsecured creditors. Vaughan Williams, J., in the Chancery Division, said : 2 ' This business was Mr Salomon's business and no one else's.' Lindley, L. J., in the Court of Appeal, approving his decision, said : 3 ' It is manifest that the other members of the company have practically no interest in it, and their names have merely been used by Mr Aron Salomon to enable him to form a company, and to use its name in order to screen himself from liability. . . . In a strict legal sense the business may have to be regarded as the business of the company; but if any jury were asked, Whose business was it ? they would say Aron Salomon's, and they would be right, if they _m eant that the beneficial interest in the business was his. . . . The liability does not arise simply from the fact that he holds nearly all the shares in the company. A man may do that and yet be under no such liability as Mr Aron Salomon has come under. His liability rests on the p urpose for which he formed the company, on the way he formed it, and on the use which he made of it. There are many small companies which will be quite unaffected by this decision. But there may possibly be some4 which, like this, are mere devices to enable a man to carry on trade with limited liability, to incur debts in the name of a registered company, and to sweep off the company's assets by means of debentures which he lias caused to be issued to himself in order to defeat the claims 1 [1897] A.C. 2 2 ; reported in the

(1895] 2 Ch. 323. � P. 3 3 1 .

Court ofAppeal as Broderip v. Salomon,

3 P. 3 3 8.

4 P. 3 39·

ROMAN LAW AND LEGAL PERSONAL I T Y

215

of those who have been incautious enough to trade with the company without perceiving the trap which he has laid for them.• This is Realist language, though not carried to its logical conclusion. An out-and-out Realist would have to say that the will of Salomon and Co. was identical with the will of Mr Aron Salomon and not a group-will at all, and that since there was no group-will there could be no corporate Person. English judges are not likely to press a theory so far, in the face of Parliament. Salomon and Co. had been incorporated with all due formalities and no court could deny that it was a corporation ; but some of the judges would obviously have liked to. To ask a jury 'whose business was it ?' seems to a Realist sound common sense, but to a Savignian profane folly. The House of Lords realised the imprudence of looking into the reality or unreality of a body that complied with the Companies Act, and decided unanimously for Mr Salomon. They take their stand squarely on the Act, and show no leaning towards any theory : 'the sole guide must be the statute itself '. 1 If Lord Hals bury pleases Fictionists by saying it is 'essential to the artificial creation that the law should recognise only that artificial existence •, 2 he also criticises the Court of Appeal for not recognising that the company 'was a real thing',3 'has a real existence'. 4 Like most English cases and most Roman texts, Salomon v. Salomon and Co. can be reconciled with any theory but is authority for none. The Fiction Theory can be harmonised more or less with our law of corporations. Where it seems likely to break down or do mischief is in connection with those unincorporate bodies whose abundance in English life and history was pointed out by Maitland. 5 For a Fictionist, an association is either a corporate body or a mere collection 1

Lord Halsbury, p.

29.

1

P.

30.

3 P. 3 3 .

4

P . 34.

5 Political Theories, p. xxvii. This paragraph is no more than a summary

of his Trust and Corporation, § v, pp. 366-