Scanned text contains errors.
as a thing in itself, that is, the whole is viewed pro diviso ; for division in this case is the same as making many wholes out of one whole. It is here assumed that the thing is in its nature divisible ; as a piece of land which is capable of being divided into parts.
But there are parts of things corporeal which are essential to the constitution of the whole, so that the whole cannot be divided into parts without the destruction of its nature ; as a living animal for instance.
Besides the corporeal parts into which a (corporeal) thing is divisible, we may suppose incorporeal, ideal parts of a corporeal thing (Dig. 45. tit. 3. s. 5). These parts are assumed fractions of a whole, not corporeal parts. If such a part is the object :of thought, the whole corporeal thing is viewed pro indiviso: the corporeal object of the will is the thing, and the limitation of the will to a part, is merely intellectual. Thus several persons may be joint owners of a piece of undivided land, but no one can say that any particular part belongs to him. The. case just put is that of a corporeal whole and ideal parts. But the whole may be ideal and the parts corporeal: as when there is a number of independent corporeal things, not materially connected, but they are intellectually connected so as to form in idea a whole: thus a flock of sheep is an ideal whole, and the several sheep are the independent corporeal things. The ideal whole is not composed of the several corporeal things, for an ideal whole cannot be composed of corporeal parts ; but the ideal whole is a notion which is formed with reference to some particular purpose. It is necessary that the purpose of the several things shall not be diiferent from and independent of the general purpose for which the notion is formed, but subservient to it. Thus as separate corporeal things may be often materially united to form a new corpus; so the several independent things which are not capable of such material union, may be vie wed as an ideal union or as a a universitas for some purpose ; the flock of sheep may be viewed as a whole, as a universitas, for the purpose of ownership. Such a universitas, as already observed, is independent of the several corporeal things : it still exists if they are all changed. Thus in a flock of sheep we have a fictitious, a juristical whole or thing, and in the notion of a universitas of persons we have a fictitious or juristical person, which is still the same person though all the individuals are changed. As a number of sheep must have a name, a flock, in order to be comprehended in one notion, so a juristical person must have a name, as the universitas of Fabri, or the city of Rome.
The term universitas then may have various senses, 1. Both the universitas and the parts may be corporeal (Dig. 50. tit. 16. s. 23.9. § 8) : terri-torium est universitas agrorum intra fines cujus-que civitatis. 2. The universitas may be corporeal, and the parts incorporeal, as when we imagine fractional parts of a thing. 3. The universitas may be incorporeal, and the parts corporeal, as a flock of sheep. 4. The universitas and the parts may both be incorporeal.
The fourth;is the case when the notion of a whole and its parts is not applied to things, but to rights: thus a man's whole property may be viewed as a unit, or as a universitas, which comprehends, the several rights that he has to the several
material things which form the ideal unit of big property.
In this way we arrive at the correct notion of a universitas of persons, which is the notion of a fictitious person imagined for certain purposes, as the notion of a universitas of independent material things is the notion of a fictitious thing, imagined for certain purposes.
A single person only can properly be viewed as the subject of rights and duties ; but the notion of legal capacity may by a fiction be extended to an imaginary person, to a universitas personarum, but the fictitious person is not a unit composed of the real persons : it is a name in which the several persons or a majority may act for certain permanent purposes. The purpose itself is sometimes the fictitious person, as when property is given for the service of religion, whether it is administered by one person or several persons. Such juristical persons have certain legal capacities as individuals have ; but their legal capacities are limited to property as their object. It is true that the Romans often considered persons as a collective unity, simply because they all exercised the same functions: thus they speak of the Collegium of the consuls [collegium], and of the Tribuni Plebis. In like manner they say that the Duumviri of a municipum are to be viewed as one person. (Dig. 50. tit. 1. s. 25). But these fictitious unities have only reference to Jus Publicum, and they have no necessary connection with juristical persons, the essential character of which is the capacity to have and acquire property by some name.
Juristical persons could be subjects of ownership, Jura in re, obligationes, and hereditas: they could own slaves and have the Patronatus • but all the relations of Familia, as the Patria Po-testas and others of a like kind, \vere foreign to the notion. But though the capacity to have property is the distinguishing characteristic of Juristical persons viewed with relation to Jus Privatum, the objects for which the property is had and applied may be any; and the capacity to have property implies a purpose for which it is had, which is often much more important than this mere capacity. But the purposes for which Juristical persons have property are quite distinct from their capacity to have it. This will appear from all or any of the examples hereinafter given.
The following are Juristical persons: (1) Civi-tas: (2) Municipes: this term is more common than Municipium, and comprehends both citizens of a Municipium arid a Colony ; it is also used when the object is to express the Municipium as a whole opposed to the individual members of it. (3) Respublica. In the republican period, when used without an adjunct, Respublica expressed Rome, but in the old jurists it signifies a Civi tas dependent on Rome. (4) Respublica Civitatis or Municipii: (5) Commune, Communitas. Besides the Civitates, component parts of the Civitates are also Juristical persons : (1) Curiae or Decuriones ; the word Decuriones often denotes the individuals composing the body of Decuriones as opposed to the Civitas (Municipes), which appears from a passage in the Digest (4. tit. 3. s. 15), where it is stated that an action for Dolus will not lie against the Municipes, for a fictitious person cannot be guilty of Dolus, but such action will lie against the individual Decuriones who administer the aifaiis