Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/22

 §3.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. I. in the main the notion of a collection of individuals as opposed to the notion of a singularis persona, or one individual. 1 § 2. Gaius, in his division of persons, 2 which was afterwards followed in the Digest of Justinian, 3 never hints at A corpora- ° tion not a corporations ; and, indeed, the statement may be hazarded that in no place in the Pandects are corpo- rations said to be persons ; though it is said that for certain purposes they are to be treated as such, personoe vicefungitur} It seems probable, moreover, that the law did not create this approach to a personification of corporations, but received it from the people, tolerating the fiction through deference to the popular view. § 3. Nevertheless, though the Roman law never regarded a corporation as a person begotten of itself, and only said that for certain purposes the law would treat it as such, yet in the periods of the later and more fully developed law a corporation was regarded as a something, as a corporate whole or unit, distinct from its members. 5 To this corporate whole, and not to the individual members, attached the corporate rights and liabilities. " If anything is owed to a corporation it is not owed to the members individually ; nor do they owe what it owes." 6 Consequently, the existence and Later Ro- man view. See Savigny, System, etc., ii. p. 261. The term seems not to have been in use much before the time of Cicero. Corpus&nd collegium were also used, the former more generally than the latter. 1 See Dig., iv. 2, lex 9, § 1. Cor- porations sole did not exist at Rome. "Neratius Pi iscus deems that three may make a 'collegium,' and this opinion is to be followed." Dig., 1. 16, lex 85. Still the scope of the applicability of this passage is not clear. 2 Gai. i. 9 et seq. 8 Dig., i. 5, lex 3. 4 Dig., xlvi. 1, lex 22. 6 See Savigny, System, ii. pp. 236- 240. 6 Si quid universitati debetur, sin- gulis non debetur; nee quod debet 2 universitas singuli debent. Dig., iii. 4, lex 7, § 1. See also Dig., i. 8, lex 6, § 1. " Das Wesen aller Corporatio- nen besteht darin, dass das Subject der Rechte nicht in der einzelnen Mitgliedern (selbst nicht in alien Mitgliedern zusammengenommen) besteht, sondern in dem idealen Ganzen," Savigny, System, ii. 144. " Eine Juristische Person ist eine nicht wirklich existirende, nur vor- gestellte Person, welsche als subject von Rechten und Verbindlichkeiten behandelt wild." Windscheid, Pan- dekten, i. p. 147 ; see ib. p. 150. See, also, Sav., ii. 284-288 ; Dig., iii. 4, lex 1, § 1 ; Dig., i. 8, lex 6, § 1 ; Dig., xlviii. 18, lex 1, § 7; Dig., xl. 3, leges 1, 2, and 3 ; Dig., ii. 4, lex 10, § 4 ; Dig., vii. 1, lex 56. The statement in the text seems to be upheld by the