Abstract

Detailed medieval discussion of corporations began in the late twelfth century among the glossators of canon and Roman law. Although the concept of the corporation was later adopted, modified, challenged, and developed both by theologians and specialists in Aristotelian philosophy in the faculties of arts, it remained quintessentially a legal idea of fundamental importance in later medieval political debate. Canonists in particular were confronted by practical difficulties arising from collegiate churches. Corporation theory designed to make sense of such institutions and the law governing them was then applied by advocates of conciliar government to the relationship between the pope and the universal church, and was integral to the juristic analysis of other communities such as kingdoms and cities.

Roman law provided the technical starting point in the shape of the universitas, traditionally translated as ‘‘corporation.’’ The classical lawyers’ principal interest had been the procedural status of collectivities such as municipalities, particularly how such a collectivity could initiate or react to a legal challenge. In the course of their discussions, the classical jurists raised or implied a number of further questions, which would play a vital role in medieval jurisprudence and political theory. Undoubtedly, their most important legacy was contained under the rubric of Digest 3.4: (Actions in the Name of Any Corporate Body, or Quod cuiusque universitatis nomine vel contra eam agatur, in the Littera Boloniensis or vulgate version of the Corpus iuris civilis in use at the medieval schools). Corporations were not willingly recognized by Roman law (D. 3.4.1pr). Tax farmers, exploiters of mines and salt marshes, providers of public services such as Roman bakers or Tiber sailors were all organizations that were ‘‘permitted to have a corpus.’’ However, the Digest also contained passages where things in public ownership were said to belong to a corporation (D. 1.8.1pr), and where the corporation was closely associated with the res publica in the sense of a city or municipality (D. 1.8.6.1; D. 3.4.1.1; D. 3.4.2). This capacity of the universitas to Express a collectivity of public significance was greatly exploited and extended by medieval jurists in their glosses and commentaries on Roman law. The most dramatic example of this was the attribution of corporate powers to the entire Roman people by Johannes Bassianus, who taught at Bologna and Mantua in the late twelfth century. The immediate context was an exegete’s problem: Roman law seemed to ascribe sole legislative powers to the emperor (Code, 1.14.12) at the same time as maintaining that the Senate could also make law (D. 1.3.9). Bassianus’ solution, which became famous thanks to its adoption by his pupil Azo (d. 1220/1229), was that the emperor was the only person who could legislate on his own, and was in that sense superior to his subjects as long as the latter were understood as discrete individuals (singuli); however, taken collectively as members of a corporation (universi) the Romans still had the power to legislate. Since Roman law located the origins of imperial authority in a concession of governmental powers by the Roman people known to the compilers of the Corpus iuris as the Lex regia, then perhaps by corporate action that original act could also be revoked. The canonist Laurentius Hispanus (d. 1248) assumed this in pointing out that the emperor could be deposed because he received his jurisdiction from the people, whereas the pope could not be deposed by the college of cardinals because he held his authority by the word of the Lord. The contrast between the corporate and the single or private on which Bassianus’ distinction turns was reflected in the way the glossators of the Roman law handled a closely related question. They argued that the consent of private individuals could not establish someone as a judge; jurisdiction in the sense of forensic authority could only be created by a corporate act of consent (C. 3.13.3). The first statement was derived directly from the law itself, but the second was purely glossatorial and testifies to the willingness of the medieval jurists to deploy corporate notions. Accursius (d. 1263), the author of the standard gloss to the Roman law, went on to stress that such a judge received jurisdiction purely through his election by the corporation, although it remained true that if he wished to use that jurisdiction, he would still require the approval of a superior officer. For the jurists who followed Accursius, especially in the early fourteenth century, much would depend on the consequences ifapproval by a superior were not forthcoming. The contemporary political background against which many of these ideas were first ventilated was after all that of northern and central Italy, where autonomous cities routinely defied, ignored, or usurped imperial authority both to legislate on their own and pass coercive judgment over their own citizens.

In entering his proviso about the actual exercise rather than the mere possession of jurisdiction mentioned above, Accursius cited two further passages in Roman law (Novel 15pr and } 1), but it is hard to believe he was not at the same time thinking of another set of authorities and problems entirely. For although the technically juristic vocabulary of corporation theory was ultimately derived from the Roman law, it was not in fact the glossators of Roman law who made the most of it, at least in the twelfth and thirteenth centuries, but the canonists. The archetypal structure within the institutional church was the collegiate church, which by the later twelfth century was almost everywhere composed of the bishop and his chapter. In an earlier tradition, represented in Gratian’s Decretum, the bishop was not merely the spouse of his church but also its representative, such that the bishop was said to be in his church and the church in its bishop (C. 7 q. 1 c. 9). But the nuances and complexities identified by Gratian himself, together with the burgeoning commentary both on this foundational text as well as subsequent papal letters or ‘‘decretals’’ rendered such a summary wholly inadequate. As a result of intensive legal scholarship, papal legislation and yet more legal reflection on the new papal law, the bishop emerged by the early to mid-thirteenth century as the recipient of a legally articulated and tightly regulated delegation by his chapter. In his commentary on the Decretals of Gregory IX, the future Pope Innocent IV (reg. 1243-1254) argued that rectors chosen by corporations held jurisdiction, not the corporations themselves. Innocent’s attribution of jurisdiction to the head rather than to the members of a corporation was primarily an intervention in the vexed question of bishop and chapter. Bishops were supposed to be elected by their chapters, but they were not supposed to take up the full active governance of their diocese until confirmation, consecration, and installation by their ecclesiastical superior, who in most cases would be a metropolitan or the pope himself. In the meantime, the chapter disposed of some powers of governance. Thirteenth-century canonists were compelled by the exigencies of daily life to resolve the problem of where different authorities lay in an ecclesiastical corporation composed of head and members, bishop and chapter. This question arose in its sharpest form during an episcopal vacancy but had continued relevance in a variety of other situations besides. Could a bishop bind his church without obtaining the consent of the canons, for example, and if so, on what business? Innocent IV’s answer that the jurisdiction of an ecclesiastical corporation was concentrated in its head implied extensive powers for the bishop, but his was only a minority opinion. Moreover, it did not sit easily with other comments by the same jurist to the effect that jurisdiction was transferred to the chapter at the bishop’s death, and that voluntary alienations of ecclesiastical property were invalid without the consent of the chapter. Commentators on Gratian’s Decretum (‘‘decretists’’) had recognized from the mid-twelfth century that the goods of a church were not owned by its bishop, but by the church itself, understood either as the clergy of the diocese or even the congregation of believers subject to that church. This basic truth could not be ignored when, say, alienation of ecclesiastical goods was discussed, and explains why even Innocent IV was unable to present an entirely consistent picture of relations between bishop and chapter.

Innocent’s pupil Henricus de Segusio (d. 1271), known by his later cardinal’s title as Hostiensis, adopted a distinction originally put forward by the author of the standard gloss to the Decretals of Gregory IX, Bernardus Parmensis (d. 1266). Bernardus had differentiated between rights belonging solely to the chapter, those belonging solely to the bishop, and those held by bishop and chapter together. The results in Hostiensis’ more thorough treatment of the problem were complicated by the different capacities in which a bishop interacted with his chapter. When the matter at issue concerned only the rights of the chapter, he voted simply as a canon; when the business affected everyone, he sat as prelate over the canons; when it pertained to him alone he not merely sat as prelate but could even act against the advice and wishes of the canons. The principle was clearly established that where the matter touched everyone, the bishop had to consult his chapter. Hostiensis characterized the role of the bishop as that of a general proctor (procurator generalis) of his chapter, able to conduct administrative and judicial business simply on the strength of the ordinary jurisdiction bestowed on him at election, with no need for further mandate or commission on a case-by-case basis. When Hostiensis declared that the corporation made the ordinary judge (iudex ordinarius) by electing him, he was not just reflecting comparable ideas among the Roman lawyers, even though election by a corporation played a prominent role in their analysis of ordinary jurisdiction. Rather, he confirmed and stabilized a tradition of canonist scholarship, which went back at least a generation to the works of Tancred (d. 1236) and Laurentius, both of whom had specified that a collectivity conferred ordinary jurisdiction by electing its own lord or prelate. By combining the various comments of his predecessors into a systematic whole, Hostiensis provided the first fully articulated explanation of the ecclesiastical corporation. From then on, the majority opinion among

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Canonists was that a bishop’s jurisdiction came from the corporation that elected him, not from the subsequent ceremony in which he was raised to the higher sacramental rank of bishop. Otto von Gierke’s famous criticism that canonist corporation theory opened the way to authoritarianism failed to take account of this by focusing on the metaphysical principle of unity of a corporation - never a canonist interest - rather than the legal source of jurisdiction within a corporation.

The distinction between the powers the prelates enjoyed by ordination, and the powers conferred on them by the corporate act of election, familiar to canonists since the twelfth century, assumed amplified importance in the first years of the fourteenth century when it was applied to the pope by the Dominican friar John of Paris (d. 1306) in his treatise On Royal and Papal Power (De potestate regali ac papali). This analysis owed most of its key elements to the canonists’ meditations on the relationship between bishop and chapter and provided the main outlines of a conciliar theory, over a century before the Council of Constance met to end the Great Schism. As we have seen, canonists since the twelfth century had been in no doubt that prelates were not the owners of the property of their churches. In conformity with this tradition, John characterized the prelate as an administrator or steward of ecclesiastical property; he took the tradition an important step further by asserting this of the pope, who thus became the general administrator rather than the owner of the universal church’s property. Thirteenth-century canonists had also left important indications and hints about the relationship between pope and cardinals. Hostiensis had tried to provide a more structured, synthetic explanation, according to which the papal plenitude of power devolved on the cardinals during a papal vacancy. Under normal circumstances, Hostiensis argued, the cardinals shared in the pope’s fullness of power as parts of his body; the image was owed to Roman law, which presented the senators as parts of the emperor’s body (C. 9.8.5pr), but the substance of the idea was more an extrapolation from the relationship between bishop and chapter at the diocesan level as Hostiensis and his canonist predecessors had construed it. Hostiensis went even further by hypothesizing that, should the college of cardinals be wiped out during a papal vacancy, then their authority would devolve to the Roman clergy and people, who ought then to summon a general council of the church to elect a new pope. John of Paris’ precise innovation lay in his claim that the cardinals held their authority even under normal circumstances as representatives of the universal church. Christ had certainly established the office of papacy on Peter, alone among the apostles as whose successors bishops in the modern church were routinely regarded. But the choice of incumbent fell, John argued, on the church at large. Roman lawyers had long argued that the Roman Empire had been willed by God but actually created by the Roman people who obliged by means of the Lex regia. Something similar was now happening to the church under John of Paris’ merciless combination of canon law with the Aristotelian conviction that governmental power - jurisdiction - was a natural quantity inherent in every selfsufficient perfect community. What was of jurisdiction was not, he argued in a brilliant passage, beyond the normal course of human affairs but reached the ruler - in this case, the pope - in a certain sense naturally. What was bestowed by human agency could, in John’s view, be withdrawn by the same means. This was all the more significant in that from their earliest commentaries on Gratian’s Decretum onward, canonists had upheld the theoretical possibility that a pope could be judged and if necessary deposed for heresy, a category of misdemeanor, which jurisprudence had enlarged to include persistent scandalous behavior to the obvious detriment of the church and the faith. John’s solution was not entirely satisfactory because it is hard to accept the creation of the papal office by Christ in person as just another example of nature’s most important process as outlined in Aristotle’s Politics. But John’s thesis combined most of the elements which, under pressure of the Great Schism would issue in the conciliar theory, most of which were, to repeat, the fruit of canonist scholarship. The new ingredient was Aristotelian naturalism, allowing John to imply, in his comment about jurisdiction not being beyond the normal course of human affairs, what became a commonplace by the mid-fourteenth century and a cliche by the fifteenth: The ‘‘political’’ community was a corporation, which contained by its very nature jurisdiction within itself; the universal church was no exception. This contention rapidly became a load-bearing element in political polemic beyond the legal discourse, as the works of William of Ockham, Marsilius of Padua, Nicholas Oresme, and John Gerson demonstrate. It could be challenged, but not ignored. But the key argument had only been enhanced, not inspired, by the Aristotelian corpus. This was the recognition, given focus in the magisterial systematization of canonist conciliar doctrine by Franciscus Zabarella (d. 1417), that the jurisdiction, which constituted the pope’s plenitude of power and hence his preeminence over other prelates, subsisted in the church as its foundation and was detained by the pope only in a ministerial capacity. With that realization, the distinction noted in the early thirteenth century by Laurentius Hispanus between the emperor and the pope ceased to apply.

The resolution and legal articulation of the relationship between bishop and chapter was one of the most urgent and arduous tasks facing canonists from the later twelfth century onward. For them, the corporate nature of collegiate foundations was a given, whereas the precise structure of such corporations and its implications for the daily governance of the church were unfortunately anything but. Scholarship and supplementary papal legislation had to fill out the picture. For Romanists, by contrast, the universitas and the questions it raised might more properly be said to have constituted an opportunity.

In a famous gloss to Digest 3.4.7, Accursius had identified a corporation with its members (gl. non debetur). His conclusion was strange because it seemed to undermine one of the main purposes of the corporation. From the way the gloss is structured, moreover, it is not certain that this was Accursius’ own opinion rather than just an argument put forward by other people, which he included for pedagogic reasons. Either way, other glossators disagreed. Roffredus Beneventanus (d. after 1243) related how as an advocate in the Tuscan city of Arezzo he had persuaded the court to put an entire subject town under ban and to compensate the plaintiff from that community’s common property, even though the town was now divided between factions, the consuls who had contracted on behalf of the town no longer existed, and the offices they had filled were defunct. Roffredus argued that the universitas nevertheless remained liable although the town was functionally no longer a town. The example shows how robust the universitas could be as a bearer of legal capacity entirely distinct from that of its members. About a century later, Bartolus of Sassoferrato (d. 1357) carefully explained that by fiction of law, a universitas represented a single person distinct from the persons of its members. Philosophers and canonists denied this, he continued, and admitted that in a certain sense they were right: the whole did not differ in reality from its parts. Innocent IV had indeed described such a person as persona ficta and consequently denied it any legal capacity not possessed by its members. Fictiveness was by contrast no obstacle for Bartolus and the other Romanists, but the precise advantage of the corporate person. As he went on to explain, by fiction of law the person represented by a universitas outlived its members. Bartolus referred in support of his claim to Digest 46.1.22, which only says that a municipality, a court of decurions, and a societas all function vice personae or ‘‘in the place of a person.’’ (Cities are also taken as private persons in Digest 50.16.16 and 46.1.22.) A major advantage of ascribing personality to a corporation was that it rendered more accessible the type of solution to otherwise intractable problems that

Roffredus had advocated. It was also capable of some surprising extensions. Bartolus’ pupil Baldus de Ubaldis (d. 1400) applied the universitas so conceived to kingdoms: the respublica of the kingdom was distinct from the people of the kingdom, and constituted a royal dignity that resided in the king for as long as he lived. If ‘‘The person of the king is the organ and instrument of that intellectual and public person,’’ and if ‘‘that intellectual and public person is that which is the principal source of action,’’ then it ought to be possible to ascribe sempiternity to some acts of the ruler, which lawyers had for years attempted to uphold against the strong counterargument that no ruler could be bound by his predecessor. Such acts might include contracts and enfeoffments, because a case could now be made for the principle of noncontradiction based on the identity of the contracting or enfeoffing universitas (dignitas, res publica) despite the change of ruler.

Medieval corporation theory was adopted and exploited wholesale by Calvinist polemicists in the 1570s and by their counter-reformation opponents. Via such works as Theodore Beza’s On the Right of Magistrates (Du droit des magistrats, De iure magistratuum, 1574), the anonymous Defences Against Tyrants (Vindiciae contra tyrannos, 1579), Francois Hotman’s Francogallia (three versions: 1573, 1576, 1586) and William Barclay’s On the Kingdom and Royal Power (De regno et regali potestate, 1600) the notion of the corporate people as the source and residual repository of jurisdiction also survived to inspire and revolt English and Scottish thinkers of the seventeenth century.

See  also: > Canon Law > Civil (Roman) Law

> Conciliarism > John of Paris