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p1214 Universitas

Article by George Long, M.A., Fellow of Trinity College
on pp1214‑1217 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

UNIVERSITAS. The philosophical division of things (Res) in the widest sense of the term, is into things Corporeal (Res Corporales), objects of sense, and things Incorporeal (Res Incorporeales), objects of intellect only (Cic. Top. 5); and this division was applied by the Roman Jurists to things as the objects of Rights. When a man said of a thing "meum est," it might be either a Corporeal thing, as a piece of land or an animal; or it might be an Incorporeal thing, as a Jus utendi fruendi. Obligationes were also classed among Incorporeal things. But this is not a division of things, in the limited sense, for things in that sense are always corporeal; it is a division of things in the wider sense.

In a thing corporeal we may consider that there are parts, in reference to which the whole is a Universitas or a unit. If then the division into parts is made with reference to the subjection of a part to a person's will, the part is viewed as a whole, p1215as 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 s5). 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 different 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 viewed as an ideal union or aº 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 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 s239 § 8): territorium est universitas agrorum intra fines cujusque civitatis. 2. The universitas may be incorporeal, 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 his 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 municipium are to be viewed as one person (Dig. 50 tit. 1 s25). 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 Potestas and others of a like kind, were 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) Civitas: (2) Municipes: this term is more common than Municipium, and comprehends both citizens of a Municipium and 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 Civitas 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 s15), 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 affairs p1216of the Municipes. Sometimes the word Curia is used as equivalent to Civitas: and sometimes the Decuriones are spoken of as a Juristical person, which has property as such. (2) Vici; which have no political self-existence, but are attached to some Respublica; yet they are juristical persons, can hold property, and maintain suits. (3) Fora, Conciliabula, Castella. These were places between Civitates and Vici as to extent and importance; they belonged to a Respublica, but had the rights of juristical persons: they are not mentioned in the legislation of Justinian, but the names occur in the Tablet of Heraclea, in the Lex Galliae Cisalpinae, and in Paulus (S. R. IV tit. 6 s2). In the later period of the Empire, Provinces were viewed as juristical persons.

In the writings of the Agrimensores, communities, and, particularly, colonies (coloni), are designated by the appropriate name of Publicae Personae, and property is spoken of as belonging to the Coloni, that is, the Colonia, Coloni being used here in the same sense in which Municipes was used as above explained.

Other juristical persons were (1) Religious bodies, as Collegia of Priests, and of the Vestal Virgins, which could hold property and take by testament. (2) Associations of official persons, such as those who were employed in administration: the body of Scribae became one of the most numerous and important, as they were employed in all branches of administration; the general name was Scribae, a term which includes the particular names of librarii, fiscales and others; they were divided into subdivisions called decuriae, a term which even under the Republic and also under the Empire denoted the corporations of Scribae; the individual members were called decuriati, and subsequently decuriales; the decuriati had great privileges in Rome and subsequently in Constantinople (Cic. in Verr. III.79, ad Quint. Frat. II.3; Tacit. Ann. XIII.27; Sueton. Aug. 57, Claud. 1). (3) Associations for trade and commerce, as Fabri, Pistores, Navicularii, the individuals of which had a common profession, on which the notion of their union was founded; but each man worked on his own account. Associations properly included under Societates [Societas]: such associations could be dissolved by the death of a single member. Some of these associations, such as those for working Mines, Salinae, and farming the Portoria were corporate bodies, though they had the name of Societates. (4) Associations, called Sodalitates, Sodalitia, Collegia Sodalitia, which resembled modern clubs. In their origin they were friendly associations for feasting together; in course of time many of them became political associations, but from this we must not conclude that their true nature really varied; they were associations not included in any other class that has been enumerated, but they differed in their character according to the times. In periods of commotion they became the central points of political factions, and new associations, it may be reasonably supposed, would be formed expressly for political purposes. Sometimes the public places were crowded by the Sodalitia and Decuriati (Cic. ad Quint. Frat. II.3), and the Senate was at last compelled to propose a lex which should subject to the penalties of Vis those who would not disperse. This was followed by a general dissolution of collegia according to Asconius (in Cornelianam), but the dissolution only extended to mischievous associations, as may be safely inferred from the nature of the case, and even the words of Asconius, if carefully examined, are not inconsistent with this conclusion. In the Digest (47 tit. 22 s1, 2, 3) we find that no collegium could be formed without the permission of a Senatusconsultum or the Caesar; and persons who associated unlawfully were guilty of an extraordinarium crimen. The rule of law means that no union of persons could form a juristical person without the consent of the proper authority; and this is quite distinct from the other provision contained in the same rule, which punished associations of persons who acted as corporations, for this part of the rule relates only to such associations as were dangerous, or of an undefined character.

There were also in the Imperial period the Collegia tenuiorum, or associations of poor people, but they were allowed to meet only once a month and they paid monthly contributions (Dig. 47 tit. 22 s1, 3). A man could only belong to one of them. Slaves could belong to such a collegium, with the permission of their masters.

Communities of cities and towns have a kind of natural or necessary existence; and other bodies, called corporations, have been fashioned by a kind of analogy to them, and like them can have property, and be represented by the name either of Collegium or Corpus, between which there is no legal distinction; for it appears that one corporation was called a Collegium and another a Corpus, as it might happen. But both of these terms denote a Corporation, as above explained, as opposed to a Civitas or Respublica. The members of such corporations were Collegae and Sodales, which is a more general and an older term than Sodalitas. Altogether they were called Collegiati and Corporati; the members of particular kinds of corporations were Decuriati, Decuriales, Socii. The common name which includes all Corporations and Civitates is Universitas, as opposed to which any individual is singularis persona.

The notion of individual property as a unity is founded on the notion of the unity of the owner. But this notion of unity, when once established, may for certain purposes be arbitrarily assumed, and accordingly it is applied to the case of Peculium, Dos, and Hereditas, and modern writers have designated these as cases of a Universitas Juris. The name Universitas Juris does not occur in the Roman law. On this subject see Puchta, Inst. II. § 222. The nature of Succession is explained under Successio.

The term Universitas was adopted in the middle ages to denote certain great schools, but not as Schools: the term denoted these places as corporations, that is, as associations of individuals. The adjunct which would express the kind of persons associated would depend on circumstances: thus in Bologna, the expression Universitas Scholarium was in common use; in Paris, Universitas Magistrorum. The School as such was called Schola, p1217and from the thirteenth 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 in a Decretal of Innocent III, of the beginning of the thirteenth century, addressed Scholaribus Parisiensibus.

(Savigny, System des Heutigen Röm. Rechts, I.378, II.235, III.8; Savigny, Geschichte des Röm. Rechts im Mittelalter, vol. III 318, 380; Puchta, Inst. II § 222).

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