UNIVERSITAS
UNIVERSITAS The philosophical division of things (
res) in the widest sense of the term into
res corporales--objects of the senses--and
res incorporales--objects of the intelligence only
(
Cic. Top. 5; Sext. Empir.
adv. Mathemat. 3; Quintil.
Hist. 5.10, 116;
Gel. 5.15; Boeth.
Top. iii. &c.), was applied to the objects of
rights by the Roman jurists (Gaius, 2.12-14;
Dig. 1,
8,
1,
1; Inst. 2.2, pr. 2), who were perhaps led to this way of regarding
the matter by the fact that every action
in rem
related to either a corporeal thing or an incorporeal right ( “si
paret, rem actoris esse . . . si paret, jus utendi fruendi actoris
esse” ). If this is so,
res originally
meant in legal phraseology any thing of which it could be said “meum
est,” whether a corporeal thing or an incorporeal (real) right;
but later, by an extension of meaning,
res
incorporalis came to include all rights other than dominium (which
fell under
res corporalis because the Romans
habitually identified it with the
thing over which
it existed), especially the rights
in personam
termed
obligationes (Gaius, 2.14; Inst. 2.2,
2).
Every thing which is in its nature divisible can be conceived as consisting
of parts, in contrast with which it is itself a unit or universitas (e. g.
“universitas agrorum,”
Dig. 50,
16,
239,
8; “fundi,”
Dig. 41,
4,
2,
6); and if this be done
with reference to the subjection of one of those parts to exclusive rights
in a person, that part is itself conceived as a unit or independent object
of rights, and the whole is regarded
pro
diviso, as though it were divided ( “Quintus Mucius ait,
partis appellatione rem pro indiviso significari, nam quod pro diviso
nostrum sit, id non partem, sed totum esse, Servius non ineleganter
partis appellatione utrumque contineri.”
Dig. 50,
16,
25,
1). But some things
consist of parts which cannot be physically divided from it without an
essential change in their nature, and in relation thereto such a thing
cannot be regarded
pro diviso; the whole can be
the object of rights, but a physical part of it cannot. The stones, for
instance, of which a house is built, are not parts of it in the sense that
they cannot be removed without a change in their nature, and Consequently
they can be owned
pro diviso even while
[p. 2.978]unseparated; but the house itself is an integral
part of the soil on which it stands, apart from which it cannot be an
independent object of rights; nor can one person own the right arm of a
slave, another the left, or one the head and shoulders of a horse, another
the hinder quarters. The contrast between the two is thus put by Pomponius:
“unum genus corporum continetur uno spiritu et Graece
ἡνωμένον vocatur, ut homo tignum lapis et
similia: alterum quod ex contingentibus hoc est pluribus inter se
cohaerentibus constat, quod
συνημμένον
vocatur, ut aedificium navis armarium” (
Dig.
41,
3,
30, pr.).
But a thing, even though physically indivisible (as a slave), may be
conceived as consisting of ideal or intellectual parts: e. g. one person may
own a field or a slave in one-third, and another may own him in two-thirds:
“servus communis sic omnium est, non quasi singulorum totus, sed
pro partibus, utique indivisis, ut intellectu magis partes habeant quam
corpore” (
Dig. 45,
3,
5): and if such a part is regarded as the
object of exclusive rights, the thing is nevertheless taken
pro indiviso, and is said to belong to two or more
persons in common: no one can say that any particular physical part belongs
to him exclusively. Here the whole is corporeal, the parts are intellectual.
But conversely there are cases in which, though the parts are corporeal, the
whole is intellectual or ideal only; as when there is a number of
independent corporeal things not materially connected, but connected in
thought owing to some common end or purpose so as to form in idea a whole:
e. g. the books composing a library, or the sheep which make up a flock
(Inst. 2.20, 18). Where the purpose of the several things, so far from being
different from and independent of the general purpose for which the idea is
formed, is subservient to that general purpose, such intellectual wholes,
consisting of corporeal parts which may be completely changed without
its ceasing to be the same, are treated as
independent objects of property, so that (e. g.) they can be pledged (
Dig. 20,
1,
13, pr.; ib. 34, pr.); they are juristic “things,”
and are called
universitates rerum, just as
universitates personarum are juristic persons, or
sometimes
universitates rerum distantium to
distinguish them from the so-called
universitates rerum
cohaerentium, exemplified in the passage of Pomponius cited above.
Passages in which these
universitates rerum
(
distantium) are characterised may be found
in Inst. 2.20, 18;--
Dig. 30,
22; ib. 7, 1, 70, 3; ib. 6, 1, 1, 3; ib. 3, pr.
But the term
universitas is not applied merely
to “things” in the narrower signification. Upon its Roman use
in the sense of an aggregate of proprietary rights (whether real or
personal) and liabilities, especially with reference to hereditas--though we
also read of peculia (
Dig. 5,
3,
20,
10) and
dotes (
Dig. 33,
4,
1,
4) as universitates--modern
jurists have founded the conception of a “universitas juris,”
the complex of a man's assets and liabilities, which may be the object of
succession, as upon death, adrogatio, conventio in manum, &c. [
SUCCESSIO]. And from its other
Roman use in the sense of the aggregate of persons belonging to a
corporation (
Dig. 1,
8,
1, pr.; ib. 2, pr.; ib. 6, 1; ib. 3, 4, 2; ib.
7, 1 and 2; ib. 46, 8, 9), they have coined the expression
universitas personarum as denoting one of the
species of what are now usually termed “juristic persons.”
It is only the individual man who can properly be regarded as the subject of
rights and duties, and it is he who determines for himself the ends to which
his property shall be devoted. But there are some ends which concern more
men than the single individual, and these may often be attained by the
formation of a partnership between those to whom they are an object; and
others of a wider and more enduring interest still, which are an object to
successive generations, e. g. to the inhabitants of a town, the citizens of
a state, the members of a family, the practitioners of an art--or even to
all mankind, as is the case with civilisation and religion. The attainment
of these is facilitated by certain funds being set aside and administered
for that very purpose; and thus the end seems to resemble man, for to it is
ascribed the proprietary capacity which only man can properly possess, and
the foundation which is its outward symbol is conceived as a person is said
personae vice, privatorum loco, esse (
Dig. 46,
1,
22;
50,
16,
16), and is described as owner, heir, creditor,
and debtor (
Dig. 34,
7,
1; ib. 4; 1, 3, 49, 4): communities of persons
organised for permanent public purposes are in the writings of the
Agrimensores (pp. 16, 54, ed. Lachmann) called
persona
publica, persona colonia. This is the notion of a juristic
person, of which there may be said to be two kinds: corporations (
corporatio, Nov. Severi, ii., but more ordinarily
corpus in the authorities: the moderns
speak of
universitates personarum), and funds or
property-aggregates devoted to some permanent and definite object, which, so
far as proprietary rights are concerned, the state has endowed with
personality and legal capacity: these are by modern writers often termed
universitates bonorum, an expression which the
Romans appear to use only in the sense of an inheritance (
Dig. 6,
1,
1,
pr.; 29, 1, 18, pr.).
Of corporations the following kinds occur:--(1) The Roman State, Respublica,
considered as the subject of rights and duties comprised under Private Law:
its property, and legal personality in respect of property, are also called
Fiscus or Aerarium, though some writers (e. g. Baron,
Pandekten, § 30) treat the Fiscus and State together
as a juristic person of anomalous character, which cannot properly be
classed as a corporation at all. By the classical jurists
respublica is most commonly used to express a civitas dependent on
Rome, not Rome herself. (2) Political or local subdivisions of the people,
such as civitates, municipes, communes or communitas, vicus, colonia,
provinciae, fora, conciliabula, castella (the last three, though not
mentioned in the legislation of Justinian, occurring in the Tabula
Heracleensis, the Lex Rubria de Gallia Cisalpina, and in Paulus,
Sent. rec. 4.6, 2). (3) Military subdivisions, such as
legions (
Dig. 28,
3,
6,
7;
41,
3,
30,
pr.;--Cod. 6, 62, 2). (4) Associations of official persons and
administrative authorities, of which the body of scribae became one of the
most numerous and important through being employed in all branches of the
administration. The general name was Scribae, which included the subordinate
[p. 2.979]corporations termed Decuriae librariorum,
fiscalium, censualium (
Dig. 37,
1,
3,
4;
46,
1,
22;
29,
2,
25,
1;--Cod. 11, 13), whose
individual members, called decuriati and subsequently decuriales, had great
privileges at Rome and subsequently at Constantinople (
Cic. in Verr. 3.79;
ad
Quint. fratr. 2.3;
Tac. Ann.
13.27; Sueton.
Octav. 57,
Claud. 1).
Similarly the decuriones of a town were regarded as a corporation distinct
from the general body of Municipes, as in Cod. 6, 62, 4;
Dig. 4,
3,
15,
where it is stated that an action for dolus will not lie against the
Municipes, of which a fictitious person cannot be guilty, but that such
action will lie against the individual decuriones who administer the affairs
of the Municipes. (5) Associations of religious persons, collegia templorum
(
Dig. 32,
38,
6), such as the priests of the various gods and the
Vestal Virgins. (6) Associations for trade and commerce, as Fabri, Pistores,
Navicularii (
Dig. 3,
4,
1, pr.; 50, 13, 5, 13), the bond between whom
was their common calling, though each worked on his own account. Under this
head also fall certain partnerships, which, though termed
societates, had a permanent corporate existence, such as the
associations for farming the taxes (
societates
publicanorum), and for working mines (
salinae:
Dig. 3,
4,
1, pr., and 1; 37, 1, 3, 4; 47, 2, 31, 1). (7) The associations
in the nature of modern clubs which were called Sodalitates, Sodalitia,
Collegia Sodalitia. These were in origin friendly associations for purposes
of common feasting and worship, but in course of time many of them acquired
a political character, and in periods of commotion became centres of faction
and intrigue, their members crowding together in public places (
Cic. ad Quint. frat. 2.3),
so that at last the senate was compelled to propose a law subjecting those
who would not disperse to the penalties of
vis.
According to Asconius, this was followed by a general dissolution of
collegia, but in fact those only were dissolved which were of a mischievous
character; and under the emperors the rule was established that no collegium
of this or the preceding class could be founded without permission from the
princeps or senate, which was granted only on special grounds (
Dig. 47,
22,
1-
3;
3,
4,
1, pr.). (8)
There were also in the imperial period Collegia Tenuiorum (
Dig. 47,
22,
1,
pr.; ib. 3, 2), associations of poor people for mutual support, and
especially to secure their members decent burial. A man could only belong to
one of them: the members might meet only once a month, and paid monthly
contributions. To clubs of this class even slaves could belong, on obtaining
permission from their masters. Upon the whole subject compare the article on
COLLEGIA.
Of the rights comprised in private law, some only can reside in corporations.
An independent property or proprietary capacity is essential to the
corporate character: “quibus autem permissum est corpus habere . . . .
proprium est ad exemplum reipublicae habere res communes, arcam communem
et actorem sive syndicum, per quem, tanquam in republica, quod
communiter agi fierique oporteat, agatur fiat” (
Dig. 3,
4,
1,
1). Corporations could own, possess, owe, be
owed, and institute legal proceedings; they could possess the jus
patronatus, but none of the family rights, and many of them, though capable
of taking legacies, were excluded from succeeding deceased persons by way of
inheritance (
Dig. 30,
117,
122; ib. 73, 1). A corporation is not
identical with its members at any given time, and remains the same
“person” unaffected by changes in them (
Dig. 3,
4,
7,
2); they do not share
pro
parte in its rights and liabilities ( “si quid
universitati debetur, singulis non debetur, nec quod debet universitas
singuli debent,” Dig. ib. 7, 1), and can become its debtors and
creditors in precisely the same way as other persons can (Dig. ib. 9). Their
rights and duties, as such members, vary with the character of the
corporation itself, which may be established entirely or principally for
their benefit, so that sometimes the members for the time being may be
entitled to divide its property between themselves on its dissolution.
Having no will of its own (
Dig. 41,
2,
1), it can perform legal
acts only through agents, whether these be its presidents (
magistri, rectores) or subordinate officials,
especially those appointed for the conduct of litigation (
syndici, actores); and what these agents decide on and do within
the scope of their authority is regarded as the determination and act of the
corporation itself (
Dig. 35,
1,
97;
50,
1,
14). Who are its duly
authorised agents is usually defined by its constitution: but in the absence
of such definition the aggregate of its members are to be considered its
natural representatives, and the acts and resolutions of a majority at a
duly summoned meeting to be taken as conclusive (
Dig.
19,
160,
1; Cod.
10, 63, 5, 1), unless contrary to positive law or the interests of the
public (
Dig. 47,
22,
4).
Some corporations were established by the state: but the chief mode in which
they arose was the voluntary association of a number of persons (not less
than three:
Dig. 50,
16,
85) for a common purpose which was neither
unlawful nor immoral. Whether a special recognition of the associated
persons as a corporation by the state was essential cannot perhaps be
regarded as settled; but (notwithstanding
Dig. 3,
4,
1;
47,
22,
3,
1) the better opinion would seem now to be that
an association might be invested with the corporate character under general
law or custom, and that as a rule it could not be denied to any lawful
combination of persons so organised as to create a fund of property distinct
from that of the associated persons themselves (Windscheid,
Lehrbuoh, § 60, note 3).
A corporation was dissolved by the death or withdrawal of all its members:
“In universitatibus nihil refert, utrum omnes iidem maneant, an
pars maneat vel omnes immutati sint: sed et si universitas ad unum
redit, magis admittitur posse eum convenire et conveniri, cum jus omnium
in unum reciderit et stet nomen universitatis” (
Dig. 3,
4,
7,
2). But it cannot as a rule be extinguished by a
resolution of its members. Of course, where no public interest stands in the
way, these can agree unanimously to withdraw from the corporation and so put
an end to its existence: but in such a case unanimity is indispensable
unless it is provided by the constitution of the corporation itself, that
for this purpose (as for others) a majority shall be able to bind a
minority. It could also be
[p. 2.980]dissolved by its object
becoming unlawful, as where the state prohibits associations of certain
kinds which hitherto have been perfectly legal (e. g. the collegia
sodalitia), or declares a single corporation extinct on grounds of policy
(
Dig. 7,
4,
21). Upon dissolution, the property of those
corporations whose members were jointly entitled to its funds or income was
divided among them; in other cases, any resolution of the members made
before extinction as to what was to become of it was binding: if there had
been no such resolution, the property went as
bona
vacantia to the Fiscus.
The second class of juristic persons (the socalled
universitates bonorum) are those which are not necessarily
supported by any natural person--a support which, as has been seen, was
essential to the existence of a corporation: they are so much property, or
aggregates of rights and duties, personified and regarded as capable of
perpetuating their separate existence and fictitious unity indefinitely.
These were uncommon at Rome before the adoption of Christianity as the state
religion, though by special favour of the emperor or senate certain temples
were endowed with capacity of inheriting property (Ulpian,
Reg. 22, 6): but after Constantine's religious reformation
the character of the juristic person came to be possessed by foundations
established for the encouragement of the new worship, such as churches,
monasteries, and religious houses generally, and by other institutions of a
charitable nature, such as hospitals and almshouses, which Christianity
regarded with peculiar favour (Cod. 1, 2, 23; 1, 3, 35, 46). A juristic
person of any of these kinds came into existence by the dedication by any
one, even in his last will, of property to a permanent end of religious or
charitable character: it had full proprietary rights, including capacity to
take by inheritance no less than by legacy (Cod. 1, 2, 23; 1, 3, 24, 49):
like a corporation, it could act only through agents, the appointment of
whom, if not provided for in the constitution of the juristic person by its
founder (Cod. 1, 3, 46, 3), was entrusted to the public magistrates (ib. 49,
6;
Nov. 131, 11). Alienation of property belonging to such
foundations was subject to important restrictions (
Nov. 120).
It is disputed whether the character of a juristic person can be ascribed to
the successive holders of an office or magistracy (after the fashion of
English “corporations sole” ): but this would seem to be the
case, inasmuch as a legacy to “the emperor” or “the
holder of such and such a magistracy” was good without further
specification (
Dig. 31,
56,
2;
33,
1,
20,
1;
50,
1,
25). There is the same question with regard to a
hereditas jacens, i.e. a man's property in
the interval between his decease and acceptance by an heir, of which it is
said “hereditas vice defuncti fungitur, personam defuncti
sustinet” (
Dig. 41,
1,
33,
2; ib. 34;
28, 5, 31, 1, &c.), and which, even while
res
nullius, could acquire fresh rights and incur fresh
liabilities. It is difficult to explain such properties without attributing
to an inheritance a fictitious juristic personality, while at the same time
it is impossible to classify it with either of the two groups of juristic
persons treated above.
The term
Universitas was adopted in the Middle
Ages to denote certain great schools, but not
as
schools: it denoted these places as corporations, i. e. as associations of
individuals. The adjunct which would express the kind of persons associated
would depend on circumstances: thus, in Bologna, the expression
“Universitas Scholariunm” was in common use: in Paris,
“Universitas magistrorum.” The school as such was called
Schola, and from the 13th century most commonly Studium: and if it was a
distinguished school, it was called Studium Generale. The first occasion on
which the term
universitas was applied to a
great school is said to be a Decretal of Innocent III. of the beginning of
the 13th century, addressed “Scholaribus Parisiensibus.” (
Dig. 3,
4; Puchta,
Institutionen, § 222; Savigny,
System,
&c. i. p. 378, 2.235, 3.8; Dirksen,
Historische
Bemerkungen über den Zustand der juristischen Personen nach
röm. Rechte, in his
Civil. Abhandlungen,
2.1; Pfeifer,
Die Lehre von den juristischen Personen,
Tübingen, 1847; Uhrig,
Ueber die jur. Personen,
Dillingen, 1854.)
[
J.B.M]
