Italian Jurists' Political Thought on Corporations in the 13th-14th Centuries

Imprint Academic Ltd.
THE CORPORATION IN THE POLITICAL THOUGHT OF THE ITALIAN JURISTS OF THE

THIRTEENTH AND FOURTEENTH CENTURIES
Author(s): J.P. Canning
Source: History of Political Thought, Vol. 1, No. 1 (Spring 1980), pp. 9-32
Published by: Imprint Academic Ltd.
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THE CORPORATION IN THE POLITICAL THOUGHT
OF THE ITALIAN JURISTS OF THE THIRTEENTH
AND FOURTEENTH CENTURIES*
J.P. Canning
The corporation-theory of the thirteenth and fourteenth-century Italian

civilians and canonists constitutes a major contribution to political thought. Their
wide-ranging treatment of corporations reflects the structure of contemporary
Italian society, which was dominated by interconnecting corporations of various
kinds. The number of terms employed by these jurists to designate forms of
corporation is correspondingly large, and includes corpus, communitas, respubUca,
populus, civitas, collegium, and societas, although the most commonly used generic
term is universitas. The political thought of these jurists exists very much within
the context of their corporation-theory: it was thus no accident that the founda
tions for the modem historical study of the political ideas of the medieval jurists
were laid by Otto Gierke precisely within a treatment of their theory of corpora
tions.1 One of the major forms of political corporation which the jurists considered
was the independent city-republic of north and central Italy. To describe and
account for this phenomenon there emerged a juristic theory of government by
the people; and the rôle of corporation-concepts within this theory forms the
subject of this article. The main focus will be on the works of Baldus de Ubaldis
(d. 1400), a renowned canonist and civilian, sharing with his teacher and colleague,
Bartolus of Sassoferrato, the greatest fame and influence among the Commentators
(or Postglossators). Baldus deserves this attention because of the impact and
importance of his thought, and the strange neglect of his writings by modern
scholars.2 His ideas serve to illustrate the general problems raised by corporation
"This article is based on the author's paper delivered to Professor Nicolai Rubinstein's research
seminar on Medieval and Renaissance Italian history at the Institute of Historical Research,
University of London.
1 Das deutsche Genossenschaftsrecht, 3 (Berlin, 1881), 186-644. For a recent treatment of

corporation-theory in the political thought of the medieval jurists see Bruno Paradisi, Ί1
pensiero politico dei giuristi medievali', in Luigi Firpo, ed., Storia delle idee politiche econo
miche e sociali, 2(Turin, 1973), 113-30.
2 This neglect is in marked contast to their treatment of Bartolus. Why this should be so
remains a mystery. There exist, for instance, only three monographs devoted to aspects of
Baldus' ideas: Norbert Horn, Aequitas in den Lehren des Baldus, Forschungen zur neueren
Privatrechtsgeschichte 11 (Cologne-Graz, 1968); James A. Wahl, 'Baldus de Ubaldis' Concept
of State: a Study in Fourteenth-Century Legal Theory' (unpublished University of St Louis
Ph.D. dissertation, 1968);and Joseph P. Canning, The Political Thought of Baldus de Ubaldis'
(unpublished University of Cambridge Ph.D. dissertation, 1974). See also L 'opera di Baldo,
per cura dell' Università di Perugia (Perugia, 1901), a collection of essays to mark the five
hundredth anniversary of Baldus' death. For a list of some of the articles devoted to Baldus
see Norbert Horn, 'Die legistische Literatur der Kommentatoren und der Ausbreitung des
gelehrten Rechts', in Helmut Coing, éd., Handbuch der Quell en und Literatur der neueren
europiiischen Privatrechtsgeschichte, 1 - Mittelalter, 1100-1500 (Munich, 1973), 273.
10 J .P. CANNING
theory, and in their subtlety an

supremacy of jurisprudence in fou
II
The theory of the sovereign, self-governing city-community or populus, com

posed of citizens was amongst the medieval jurists first enunciated by Bartolus
of Sassoferrato, and developed by Bal dus.4 An examination of the corporational
aspect of the populus more clearly illuminates the views of Baldus and other
jurists as to both the nature of the populus, and how it governs itself. Indeed,
it is in the context of the people as an autonomous and self-governing corporation
that Baldus elaborates the details of the people's structure of government. Further
more the theme in the treatment of which Baldus surpassed Bartolus, namely
that of full and active citizenship,5 can be seen to be implicit in the kind of
corporation which the people is, and in its capacity to act and will and govern
itself.
It should, however, be said at the outset that there is some imprecision in

Baldus' and other jurists' use of terms to represent the citizen-body, the commu
nity of citizens. The most common, and indeed the major term employed by
Baldus to designate the citizen-body is populus; and it appears most convenient
to follow his usage in describing government by citizens as popular government.
Other terms, however, such as civitas itself, commune, communitas, and corpus
(civitatis or civium) are used interchangeably and somewhat indifferently in some
passages for populus. It is usually made clear when universitas is applied to the
citizen-body. Further the term, populus, itself can convey several meanings:
the corporation of citizens;6 all the inhabitants of a particular place including
3 For the intellectual pre-eminence of legal studies in Italy from the eleventh century onwards
see, for instance, Denys Hay, The Italian Renaissance in its Historical Background, 2nd ed.
(Cambridge, Eng., 1977), pp. 71-73.
4 For Bartolus' political theory see especially Cecil N.S. Woolf, Bartolus of Sassoferrato -
his Position in the History of Medieval Political Thought (Cambridge, Eng., 1913), and Walter
Ullmann, 'De Bartoli sentential concilium repraesentat mentem populi', in Bartolo da Sasso
ferrato - studi e documenti peril VI centenario, 2 (Milan, 1962), 707—33. For full details of
Baldus' theory of the sovereign and self-governing people see Canning, 'Political Thought',
pp. 47-223.
5 For the details and implications of Baldus' theory of citizenship see Joseph P. Canning,
Ά Fourteenth-Century Contribution to the Theory of Citizenship: Political Man and the
Problem of Created Citizenship', in Festschrift for Professor Walter Ullmann, eds. Michael
J. Wilks and Brian Tierney (Cambridge, Eng., forthcoming, 1980). For Baldus' theory of
created citizenship see also Julius Kirshner, ' "Ars imitatur naturam": a Consilium of Baldus
on Naturalization in Florence', Viator 5 (1974), 289-331. In addition see Jolande Rummer,
Ά Fourteenth-Century Legal Opinion', The Quarterly Journal of the Library of Congress
25, no. 3 (July, 1968), 179-93 (this is concerned with an autograph consilium of Baldus
dealing in part with the relative rights of native citizens and resident non-citizens).
6 See Baldus ad C.7.53.5 (below, p. 20). Unless otherwise stated I have used the [Lyons] ,
'THE CORPORATION IN THE THOUGHT OF THE ITALIAN JURISTS' 11
resident aliens and foreigners;7 and that part of the community which is distin
guished from the nobiles. In this last case Baldus makes it clear that the populu
only corresponds with the city-community as a whole when the populus holds
governmental power. Properly speaking, for the populus to be in this position
it must constitute the unified body of the citizens.8 This view fits in perfectly
well with Baldus' overall thesis of popular government; and as we shall shortly
see the concept of the populus as the unity of the citizens is fundamental t
his thinking. The populus in this last passage may very well correspond with th
popolo of fourteenth-century Italy. The hint at the idea of a restricted citizen
body (sanior civium unitas) suggests the familiar medieval principle of the sanior
1498, edition of Baldus' commentaries on the Digesta and Codex, 1-9 (held in the Ol
Library, Queens' College, Cambridge); the Pavia, 1495, edition of his commentary on th
Feudal Law and the Peace of Constance; the Lyons, 1521, edition of his commentary on the
Décrétâtes Gregorii P. IX; and the Brescia, 1490-91, edition of his Consilia (this is in fiv
books: 1, 2, and 4 were published in 1490, and 3 and 5 in 1491). There exist numerou
fifteenth, sixteenth, and early seventeenth-century printed editions of Baldus' Consili
In comparing editions 1 have noticed considerable variation in the ordering of consilia withi
the overall structure of five books: the same consilium can, for example, appear in a different
book in different editions. Much confusion exists: consilia are, for instance, combined together
or separated in a different manner in different editions. To be able to say with accuracy th
one edition of the consilia corresponds completely with another it would be necessary t
compare every word. The Brescia, 1490-91, edition is a good one; and furthermore the
references to Baldus' consilia contained in Diplovataccius' life of Baldus correspond to th
order of the Brescia, 1490-91, edition (this is made clear in Diplovataccius, De Claris iuri
consultis, ed. F. Schulz, H. Kantorowicz, and G. Robotti, in Studia Gratiana 10: 297-307
There can at present be no fully accurate assessment of the number of surviving consilia:
different editions purport to contain different numbers of consilia, quite apart from those
known to exist in manuscript form. The situation is further complicated by suspicions con
cerning the genuineness of some consilia attributed to Baldus (in addition to the overt inclusion
of some consilia by other jurists). The Brescia, 1490-91, edition purports to contain 204
consilia of Baldus. Hermann Lange in 'Die Consilien des Baldus de Ubaldisfj 1400)',Akademie
der Wissenschaften und der Literatur: Mainz (Abhandlungen der geistes-und sozialwisse
schaftlichen Klasse) 12 (1973), 18 also notices these points about the editions of Baldus'
consilia, although he does less than justice to the Brescia edition: 'Einige Ausgaben enthalte
sehr viel weniger Consilien.Z.B. bringt die Ausgabe Brixiae 1490 nur 926 Gutachten' (n.76
- Lange may well here only have had access to books 1 and 2, which purport to contain 927
consilia (the British Library, for instance, possesses a volume consisting solely of books 1 and
2). The complete edition is held in the Library of Gonville and Caius College, Cambridge.
7 See Baldus ad X.1.3.35, n.2, fol. 46r, 'Certe hoc nomen "populus" comprehendit etiam
advenas, qui ibi sedem collocarunt'; and also id. ad D.3.5.3,1, fol. 175v, 'Hie quero utrum
aliud sit dicere "civis", aliud sit dicere "popularis". Et dico quod habes textum quod etiam
forenses dicuntur populates in auth. "De questore", post prin. in illo verbo "hec civitas popu
losa etc.". Unde sub verbo popularium comprehenduntur forenses et incole, nisi ex verbi
vel ex mente appareat contrarium'.
g
Id. ad Feud., 1.5, fol. 14v, 'Pone civitas Perusina habuit feudum ab ecclesia.Deindedividitur
civitas in nobiles et populum. Nobiles committunt feloniam. An civitas privetur? Respondeo
non, quia neutri per se sunt communitas intégra ... Et nec contrahendo nec delinquendo
potest civitas per unam partem obligari . . . Sed populus regens bene obligatur. Tarr.en proprie
ille populus non dicitur civitas qui non est senior civium unitas, quia non habet significationem
universitatis sed partialitatis'.
12 J.P. CANNING
vel melior pars: the implication

qualitative criterion. This sugges
Indeed, Baldus does not tell us an
body: he does not discuss qualifica
any indication of possible sizes o
the population. In the light of the
Italy this might well seem a strang
is interested in discussing popular
the details of the size and compo
from city to city. A certain level
indicate the citizen-body has to
cases employs populus as a term
people', without further defining i
In considering the medieval juris

the first question to ask is, what d
Commentators and the canonist
corporation is a unity, one entit
suffice to illustrate this: 'In sua
constituit: ut unum corpus repré
diuntur ab ipsa, oportet quod sit
the physical members of the cor
two aspects: it is both a unity, and
Pistoia neatly expresses this du
plures, tamen pro uno reputatur'.1
both as a legal entity distinct from
the aspect which is stressed in any
upon the nature of the argumen
Decretalists give copious attenti
identified with its members or di
obligations of the corporation as s
jurisdiction within the corporation
however, appear not to have so c
corporation as a unitary entity an
but not universal, tendency among
its members.13 As Accursius hims
9 That is to say apart from consideratio

of citizenship.
10 See Gierke, Genossenschaftsrecht, 3:277-85, 362-68, and 425-36, and also Francesco
Calasso, Gli ordinamenti giuridici del rinascimento medievale, 2nd ed. (Milan, 1949), p. 230.
11 Cons., 315, n.2, fol.l42r. The Lyons, 1550, edition contains 'sur constitutione' which I
have emended.
12 C.1.14.12,n.4, fol.29r (ed. Frankfurt, 1578).
13 See Gierke, Genossenschaftsrecht, 3:202 -206.
THE CORPORATION IN THE THOUGHT OF THE ITALIAN JURISTS' 13
nil aliud est nisi singuli homines qui ibi sunt'.14 In going beyond this conception
the Commentators by considering the populus to be an abstract legal entity in
one of its aspects as a corporation, made a major contribution to political ideas
with implications which I shall consider. It is arguable that there is a sense in
which 'the people' or 'the city-community' is an abstract conception distinct from
the members of the community. This abstract aspect was not seen in the same
way or to the same extent by other medieval thinkers concerned with the nature,
organization and government of society.
The advance made by the Commentators over the Glossators is clearly illus
trated by Baldus who, in his definition of the populus, gives a superbly subtle
solution to the difficult problem of how to explain precisely the relationship
between the populus as an abstract entity and its physical members. He takes up
the statement by Accursius already mentioned, and expressly develops it by
maintaining that the populus cannot simply be equated with the individual
human beings who compose it. but is rather a collection of men into a unitv:
Nec obstat quod glossa diçit in (D.3.4.7) quod populus non est aliud quam
homines, quia debet intelligi de hominibus collective assumptis, unde
homines separati non faciunt populum, unde populus proprie non est
homines, sed hominum collectio in unum corpus misticum et abstractive
sumptum, cuius significatio est inventa per intellectum.15
In order to express that the populus as a unity is an abstraction, Baldus employs

here the phrase, corpus misticum, which is of canonistic, and ultimately Pauline
origin.16 He is presumably using this formulation here to distinguish the populus
in its abstract aspect as a corporation from the bodies of the men who make up
the populus, which are real in the sense that they can be apprehended by the
senses. This abstract entity (it is unum corpus) is a conceptualization of something
real: the populus is composed of real human beings. Baldus is, therefore, careful
to define the populus as a collection of men into a corpus misticum. In his defini
tion he thus embraces both the abstraction and the men, who form the material
basis for this abstraction. Elsewhere he expresses these two aspects of an universitas
in terms of the relationship between materia and forma:
Omnis universitas dicitur corpus, quia compositum et aggregatum. Ubi
14 D.3.4.7, col. 409-10 (ed. Antwerp, 1575). But see Walter Ullmann, The Delictal Respon
sibility of Medieval Corporations', The Law Quarterly Review 64 (1948), 80-81 for Johannes
Bassianus' discussion of the criteria for determining whether delict committed by all the
members of a community acting together constitutes the action of a corporation as such
(universitas), or is rather the action of that community's individual members (singuli).
Is C.7.53.5. See also id. ad D.6.1.23,2, fol. 234r: 'Predicatur . . . populus de corporibus in
unum collectis'.
16 See Melchiorre Roberti, Ί1 corpus mysticum di S. Paolo nella storia della persona giuridica',
in Studi di Storia e diritto in onore di Enrico Besta, 4 (Milan, 1939), 37-82; Ernst H. Kanto
rowicz, The King's Two Bodies: a Study in Medieval Political Theology (Princeton, 1957), pp.
207-32; and Walter Ullmann, The Individual and Society in the Middle Ages (London, 1967),
p.7.
14 J .P. CANNING
corpora sunt tanquam materia, dic

(D.8.2.11). Est igitur collegium im
sensu percipitur(D.41.3.30;et D.4
Baldus' definition of the populus is

question of whether, and how it ca
consent, which it must be able to if
the populus is an abstraction appea
act and will. Baldus with his defin
admits that the populus is at the sa
Constantly in his treatment of pop
that the people can give effective
Baldus never maintains that the
legislative and governmental functi
lar government Baldus considers th
are but two aspects of the same
acts and wills, in that its membe
shortly see) either in assembly (u
through elected representative co
are the physical expression of the
who express not the wills of separ
a whole.
Baldus sets out in general terms how a corporation exercises consent through
its members:
Verum est quod universitas non potest consentire antequam congregetur,

sed postquam congregatur bene consentit ... Et sic corpus civile consentit
sicut naturale corpus quia per naturalia instrumenta consentit, cum nihil
aliud sit collegium quam homines qui in collegio sunt, et sic per homines
ipsos collegium consentit, ut no. in (D3.4.7).18
The corporation thus consents in its corporeal aspect. It has no difficulty in
consenting, because in one sense it is nothing other than the men who compose
it. This corporeal aspect only becomes apparent and operative after the members
have come together in a congregation. The point which Baldus makes is that,
when it is a question of giving consent, the corporation in law (corpus civile)
is none other than its members. That is to say the instruments for giving consent
lie within itself: there is no need for recourse to any external agent. As we shall
see, there is a direct application of this position to the populus: thepopulus can
consent of itself, and does not require a superior to act for it.
17 Χ.1.31.3, n.7, fol. 116r.
18 D.29.2.25,1, fol. 97r.
Medieval jurists, however, went far beyond these basic concepts: they took the
crucial step of maintaining that the corporation being a unitary entity is equated
thereby with a single persona, that is to say a human being. The jurists thus arrived
at the concept of the legal person. A useful definition of a legal person is that it
is an entity capable of bearing legal rights and duties. This application of the
term, persona, involves a recognition that entities other than individual human
beings can bear legal rights and duties, and are, indeed, endowed (in so far as they
can be) with the legal capacity of human beings, are in short 'persons in law'.
This set of ideas may appear unremarkable to us because the concept is one of
our fundamental legal tools. But the historical point is that it was medieval
jurists who invented the concept of 'legal person' by being the first to apply the
term, persona, to the corporation. Indeed, the equation of the corporation with
a human being was a common-place in the works of the Commentators, and of
the canonists from Innocent IV onwards. The concept of legal person is lacking
in the Corpus Iuris Gvilis, where the term, persona, is not used in the sense of
legal person.19 Certain texts in the Corpus Iuris Civilis did, however, appear to
give some support to the application of the word, persona, to the corporation,
and were referred to as supporting this interpretation by medieval jurists. Never
theless it is clear that the original sense of these passages does not support the
medieval interpretation, which was thus creative and innovatory.20 It should not,
however, be thought that the full elaboration of the complex of ideas surrounding
the concept of legal person was attained by the jurists of the thirteenth and four
teenth centuries. For instance, copious evidence of what we may call legal person
ality is to be found in their works; but there is no term for this abstraction, legal
personality, as opposed to legal person. What we do see in the works of these
jurists is a major advance in corporation-theory through the opening up of a wide
expanse of juristic possibilities associated with the application of the word,
persona, to the corporation.
There is a large modern literature on the doctrines of the medieval jurists

concerning the legal personality of corporations.21 Within this literature consider
able prominence has been given to discussions of the fiction and realist theories.
The reason for this is that the founder of the modem study of medieval corporation
theory, Otto Gierke, whose great work, Das deutsche Genossenschaftsrecht, 3,
still provides the starting-point for any such study, was primarily concerned with
the problem of the legal personality of corporations, and argued in terms of the
realist and fiction theories. His preoccupations have to some extent remained
19 See Patrick W. Duff, Personality in Roman Private Law (Cambridge, Eng., 1938), pp.
48-50.
20 The texts in question are D.46.1.22; D.4.2.9,1 ; and D.35.1.56. See Duff, ibid., pp. 20-21
for illuminating remarks on the original meaning of these passages.
21
For a recent bibliography see Paradisi, Ί1 pensiero politico' (See.above, n.l), pp. 156-57.
16 JJ. CANNING
with the subject in the sense tha

the terms in which he thought o
be able to ignore the realist and
be made clear, but their curren
it necessary to consider them.
According to the realist theory,

stood as being a corporation has
Gierke's terms it has a real person
and accords to the corporation
theory with juristic passages whic
theory, the corporation as person
law (nomen iuris): nothing corres
in the mind (it is a corpus intelle
its corporeal members or a recto
result the corporation itself can
of the juristic person in comparis
by the statement that the corpo
capable of truly giving consent a
ration as a fictive person is that a
constitutive will of another (the
clear by Innocent IV, who accordi
of the concept of persona ficta am
Commentators:23
Et intellige de illa universitate,

universitas, nam si tot homin
et non haberent taciturn vel ex
universitas, non possent sibi iud
legium universitatis.24
By way of a penalty for its delic

ior. As Oldradus, following Innoc
which originally made it what
22
For a well-known and classic exposition of the realist theory see Frederic W. Maitland's
introduction to his translation of Otto Gierke, Political Theories of the Middle Age
(Cambridge, Eng., 1900), p. xxvi, Our German Fellowship is no fiction, no symbol, no piece
of the State's machinery, no collective name for individuals, but a living organism and a real
person, with body and members and a will of its own. Itself can will, itself can act; it wills and
acts by the men who are its organs as a man wills and acts by brain, mouth and hand'.
23 Genossenschaftsrecht, 3:277-85, 353-68,425-36.
24 X. 1.3.1.3, n.l, fol. 148r (ed. Frankfurt, 1570). For the rôle of the approbatio superioris in
establishing a corporation see Walter Ullmann, 'Juristic Obstacles to the Emergence of the
Concept of the State in the Middle Ages', Annali di storia del diritto 12-13 (1968-69), 57
(where this passage from Innocent is also quoted); and Gierke, Genossenschaftsrecht, 3:368-72.
desineret esse quod erat, sic et ista persona ficta per mortem civilem, que est ut
privetur privilegiis universitatis, universitas desinit esse quod erat, quia a modo
non erit universitas'.2 5 The fiction theory is intimately linked with the concession
theory, whereby a superior concedes to the corporation not only all its powers,
but also its very existence.26
The idea that the corporation is a persona ficta persisted for this reason:
although the conceptual jump of applying the term, persona, to the corporation
had been made, there nevertheless remained in the works of some jurists a literally
anthropomorphic conception of persona - that properly speaking the term,
persona, could only be applied to a human being. The canonist Johannes Andreae
provides an excellent example of this view: 'Nomina 'universitas', 'communitas',
'collegium', 'corpus', 'societas' sunt quasi idem significantia . . . ob hoc nullum
horum est vera persona, que est rei rationabilis individua substantia;inde collegium
dicitur persona non vera, sed representata'.27 This is an echo of Innocent IV's
famous statement that corporations (including the populus) 'nomina sunt iuris, et
non personarum'.28 In consequence the corporation can only be a fictive person
as Innocent had initially maintained: 'collegium in causa universitatis fingatur una
persona'.29 It was in great measure because of this anthropomorphic view that the
capacity to act and will was in many passages in the jurists' works denied to the
corporation. How could it act or will when it lacked the powers and characteristics
of a human being, when it possessed neither a mens nor an anima ?
If either the realist or the fiction theories are correct, then adherence to one or
the other is obviously important for the question of popular sovereignty, because
there is involved the crucial question of whether the populus can act and will,
an essential prerequisite for independent self-government. In fact both theories
are misleading and historically inaccurate. The medieval jurists' ideas simply do
not fit into realist or fiction theories which are essentially modem categories. This
has certainly been my experience from studying their writings.30 Although
25 Cons., 65, n.8, fol. 23r (ed. Lyons, 1550). For a discussion of this passage see Walter
Ullmann, ibid., p. 59, where he interprets it as illustrating the fiction theory.
26 See Gierke, ibid.·,Duff,Personality, pp. 234-36;and UUmann, ibid., pp. 58-61.
2 7 Sex tus, 5.11.5, n.8-9, fol. 123r(ed. Lyons, 1550).
28 X.5.39.53, n.l, fol. 559r(ed. Frankfurt, 1570).
29 X.2.20.57, n.5, fol. 270v (ed. cit).
30 For agreement on this point see especially Brian Tierney's excellent discussion in his
Foundations of the Conciliar Theory: the Contribution of the Medieval Canonists from Gratian
to the Great-Schism (Cambridge, Eng., 1955), pp. 98-103. For other major criticisms of
Gierke's thesis see also Pierre Gillet, La personnalité juridique en droit ecclésiastique, spéciale
ment chez les Décrétistes et les Décrétalistes et dans le Code de droit canonique (Malines,
1927), pp. 163-68; Ewart Lewis, Organic Tendencies iri Medieval Political Thought', The
American Political Science Review 32 (1938), 849-76; Duff, Personality, pp. 206-36; and
18 J .P. CANNING
support for fiction or realist theorie

sources, any attempt to fit the jurist
in the discovery of so-called 'inconsis
existence of these),31 which are th
a jurist's doctrines it is necessary t
that the medieval jurists in their corp
with the problem of legal personal
occupation, and they accorded far mo
the location of jurisdiction within it
the case that passages can be extracted
both the fiction and the realist theor
would of course be the way in whi
account of the fiction theory. A maj
the theories of the medieval jurists is
Modem scholars tend to dip into them
Furthermore the adoption by a jurist
imply that he adheres to the full-scale
way of thinking.3 2
In any case the medieval jurists do no

or pejorative sense ; rather for them
of creating legal entities, relations an
outside the law.33 Thus Oldradus, for
constructively uses fiction to endow
possession of an anima and the associ
Universitas sive collegium non haben
nomina sunt iuris, et quantum ad re
Walter Ullmann, 'The Delictal Responsibi

pp. 78-96. For a study at length of Gierk
Theory of Otto von Gierke: a Study in Po
the Social Sciences and History 25 (Mad
demonstration that Innocent IV did not u
also Manuel J. Rodriguez, 'Innocent IV and
The Jurist (A Quarterly Review Published
sity of
America, Washington D.C.) 22 (
Feenstra,'L'histoire des fondations à pro
Rechtsgeschiedenis 24 (1956), 381-448,
'Nous ne nierons pas que Gierke a eu tort
de la fiction sur la personne juridique, t
discussion of the fiction theory may also
Expressions du mouvement communautair
31 Genossenschaftsrecht, 3:366, 390, and
32 Rodriguez, 'Innocent IV', p. 312, makes
33 See Gillet, La personnalité, pp. 163-

Michaud-Quantin, Universitas, pp. 206-11;
n.5), pp. 313-14.
delinquere non possunt neque possunt puniri, cum non sint capaces pene.
Sed licet non habeant veram personam, tamen habent personam fictam
fictione iuris. Et ideo dicit lex quod municipium, curia, et societas vicem
persone sustinent (D.46.1.22), et sic eadem fictione animam habent, et
delinquere possunt et puniri ea tamen pena, que possit cadere in eis.34
This passage immediately precedes that already quoted3 s which can now be
seen to signify simply that a corporation which is a creation of legal enactment
can be dissolved by the same method; it is thus not necessary to see the fiction
theory in operation in the passage as a whole. In general the jurists in their treat
ment of the populus use the concept of fiction as legal terminology to convey
that the populus in its abstract aspect has legal existence and capacity.
On the crucial question of the possession of jurisdiction by the corporation,

a major aspect of its capacity to act and will, there is, according to Tierney,
among the Decretalists of the thirteenth and fourteenth centuries a growing
orthodoxy that jurisdiction lies with all the members of the corporation not just
with the head, as Innocent IV and Johannes Andreae tended to maintain36
(a view essential to the fiction theory: the head is given authority by the superior,
and acts for the members who cannot act for themselves). Certainly among the
civilians, when we arrive at the works of Bartolus and Baldus, we find that the
sovereign populus, for instance, very clearly possesses full powers of jurisdiction,
and can truly act and will.
When we look at Baldus' treatment of the populus as a corporation, we see

that, in order to express the dual nature of that populus as a unity composed
of its corporeal members, he adopts the normal juristic equation of the populus
with a single persona, that is a human being:
Omnis numerus eorum, qui loco unius substituuntur, pro singulari persona
habendus est, ut (D.35.1.56). Est et quedam persona universalis que unius
persone intellectum habet, tamen ex multis corporibus constat, ut populus,
ut (D.46.1.22); et hec persona similiter loco unius habetur et individuum
corpus reputatur . . . facit (D.4.2.9,1). Patet ergo quod hoc nomen persona
quandoque ponitur pro singulari quandoque pro universali quandoque pro
capite sive prelato, ut (X.3.5.28).3 7
Baldus neatly describes this corporate person as a persona universalis - the
person which an universitas is: one person composed of many.
As we have seen, a legal person may be defined as an entity capable of bearing
34 Cons., 65, n.7, fol. 23r.
35 See above, p. 16.
36 Foundations, pp. 117, 130, and 136, n. 4.
37 C.6.26.2.
20 J.P. CANNING
legal rights and duties. But this d

of its legal capacity. The legal c
is related to the status in law of t
to the legal status of that person
populus. The passage, which I h
C.7.53.5 containing a definition o
concerning citizenship, where Ba
jurisprudence the conception of t
stood in the ultimately Aristotelia
Tertio modo (homo) potest con
seu politicum ... Si consideratu
efficeretur politicus, et ex mu
Iste populus quandoque mûris cin
dicitur politicus a polis quod est c
Baldus perceives that the individu
by dint of being subsumed into a u
characteristic. In so far as he is
isolated individual (homo separatu
inhabits a city, Baldus maintains
That is to say, a man incorporate
is a member of such a corporatio
done is to link the idea of man as
with the concept of man the citi
free and autonomous populus re
is the corporation of the citizens.
who governs himself, writ large.
is implicit in Baldus' idea of the
shown by the self-governing stru
to will and act of itself and on its
and legal independence of the bod
idea that there is a connection be
tualizing of the corporation of
subditus is dependent for his righ
as persona ficta has its rights, and
superior.40 There is no such id
populus. The appeal to nature is
39 The concept of natural, political ma

thought in the fourteenth century. T
fact remains that Baldus was the firs
citizenship seen as part of a thesis of th
Ά Fourteenth-Century Contribution'
40 See 'Juristic Obstacles', pp. 60-62.
concept of natural, political man by-passes the theocratic system, which claimed
a divine source for rulership and a divinely-sanctioned submission of the individual
as a mere subject to his monarch. The adoption of the concept of natural, political
man facilitates the development of that of the citizen who governs himself by his
own consent untrammelled by the restrictions of the theocratic system. In Baldus'
political theory it is this concept of natural, political man which forms the philo
sophical foundation for the whole structure of his theory of popular government.
The theocratic superior is excluded as the source of the people's power. The citizen
has autonomous rights which are implicit in the autonomous rights of the populus
itself. Indeed, in a passage of the highest originality in the context of medieval
juristic writings Baldus goes so far as to say expressly that this corporation of
citizens is identified not just with any persona, but specifically with a persona
politico: 'Si est congregata (i.e. universitas ) personaliter citabitur, quia ista
congregatio est quasi quedam persona politica'.41 This passage occurs later in
his commentary than the passages already quoted. Baldus realizes that he is making
a uaiing suucmciu. uus is reiiecieu in uic tentative nature 01 ills language [quasi
quedam persona politico). If taken up by later jurists and political thinkers thi
formula could have very great possibilities in the context of the theme of popul
government: it could be applied to an entity capable of governing itself by th
exercise of its own consent. Baldus' use here of the phrase, persona politic
should be understood as only providing the germ of this idea, because at th
particular point in his commentary on C.7.53.5 he is discussing a corporation o
citizens, which does not appear to be sovereign in that it can be summoned in
law.42 Further Baldus limits the application of the term, persona politico, to t
corporation of citizens in its corporeal aspect, which appears in congregation, an
does not apply it to that corporation in its abstract aspect. There is no question
of the identification of the corporation of citizens as an abstraction with a politi
person.
It is certainly true that Baldus' views concerning the populus as a corporation,

like Bartolus' also, cannot be fitted into a fiction theory in the modern sense.43
41 C.7.53.5 (this passage occurs later in Baldus' commentary than the passages already cited).
Gierke, Genossenschaftsrecht, 3:426, n.26, refers to this phrase (in this passage), but does
not explore its implications for the themes of citizenship and popular government.
42 See also Baldus ad D.3.4.1,2, n.1-2, fol. 212v (ed. Lyons, 1585): 'Ego dico, quod quando
civitas, vel universitas non habet syndicum, quod est duplex modus citandi, scilicet in persona,
et ad domum. Tunc dicitur personaliter citari quando citatur congregate in capitulo, vel
arengo . . . Nam idem est modus citandi contra civitatem, et universitatem, sicut contra
singularem personam, ut hie'.
43 Bartolus, for instance, considers that the city-community as a corporation is a person by

fiction of the law, but that this fiction does not incapacitate the corporation - rather there
are actions which only this corporation can perform: 'proprie (universitas) non est persona,
ut dictum est, tamen hoc est Return positum pro vero, sicut ponimus nos iuriste . . . Quedam
sunt que tan turn fieri possunt per ipsam universitatem, ut facere statuta, dare iurisdictionem,
imponere collectas, et similia' (ad D.48.19.16, s.v. 'Nonnunquam', n.4, fol. 200r, ed. Turin,
1577).
22 J.P. CANNING
There are a very few passages w

overwhelming weight of evidenc
of citizens in the exercise of its
any breath of fiction. Furthermo
government Baldus puts forward
the very basis of the fiction th
fiction theory that the corpora
ficial: in this sense it is a fictio
clearly as regards one form of c
de rebus naturalibus et non fict
constat, merito non continetur
extensivam'.44 Baldus, however,
other corporations in that it is
of man's political nature. In pur
powers of jurisdiction, not from
from the ius gentium itself: 'Pop
de iure gentium . . . Eo ipso q
regimen in suo esse, sicut omne
Furthermore, for Baldus as for
autonomous city-community lies
There remain two further aspec

be briefly considered. The pop
entity possesses an attribute wh
human members: it is immortal
because it is universal (that is b
durans in novis civibus non naturalibus sed adventiciis dicatur eadem civitas?
Respondeo sic . . . quia quod universale est non potest morte perire sicut homo in
genere non moritur'.47 Thus the city-community as a corporation is not only a
persona universalis; it is as such also a persona perpetual* This perpetuity of the
44 X.l.3.15, n.6, fol. 32v.

45
D. 1.1.9, n.4, fol. 9r. See also id. ad D.1.1.5, n. 33.
46 See, for instance, Baldus ad D.l.1.9, n.7, 18-19; D.1.8.Rubr., fol. 36r; Auth. 'Sedomnino'
(ad C.4.12.4); and C.7.46.2. Cp. Bartolus ad D.l.1.9, n.4, fol. 9v (ed. Turin, 1577).
4 7
Baldus De Pace Constantie, 'Imperialis Clementie , fol. lv. On the sempiternity of the
city-community see Kantorowicz, The King's Two Bodies, pp. 291-313. On this passage by
Baldus Kantorowicz comments (p. 304): 'It is possible that the term 'something universal'
fquoddam universale) evoked associations with the likewise immortal Universale of philo
sophic speech; but what the term universale really meant in legal language was quite unam
biguous: it was synonymous with the technical term universitas deriving from Roman Law'
(the text of Baldus in fact contains "quod universale", which is the reading Kantorowicz
quotes, p. 300, n.61). See also Gierke, Genossenschaftsrecht, 3:364-65, and 430.
48
See Baldus ad D.l.4.3, fol. 21v: 'Item in privilegiis dicimus quod si sunt concessa personis
THE CORPORATION IN THE THOUGHT OF THE ITALIAN JURISTS' 23
populus was a common-place among the Commentators, and reveals itself in their
common opinion that the people can initiate measures with perpetual effect, as
regards for instance legislation and banishment.49 The populus is, however, not
only an abstract entity; it is also in one aspect identified with its members. They
have to five somewhere; they, in short, require a territory. In a notable passage
Baldus makes it clear that the populus is nothing less than a territorial entity;
that its territorial aspect forms part of what constitutes the populus:
Queritur ulterius numquid intrinseci possint facere statuta contra expulsos?

Et videtur quod sic, quia intrinseci faciunt populum, non dispersi et vagi
per mundum . . . Die quod si quidem sunt expulsi ex iusta causa valet
statutum, quia delictum non debet eis prestare exemptionem ... Et concedo
quod iurisdictio remanet penes intrinsecos, quia coheret territorio, et intrin
seci possident territorium. Item intrinseci sunt universi, et expulsi sunt
singuli.50
By identifying the populus with the intrinseci, Baldus defines it as being com
posed of those living within the territory. Furthermore, by characterising the
intrinseci as universi, as opposed to the expelled who are merely separate indi
viduals (singuli), Baldus seems to consider that the people's living within a terri
tory is one of the factors which make it into a corporation — the people is a
territorial, corporate entity. The implication is that the people through inhabiting
perpetuis ut civitati et collegiis sunt realia, si certis singularibus personis sunt personalia, ut
supra (D.1.4.1) . . . sed in beneficiis die aut in beneficio principis et tunc aut conceditur tali
persone que non moritur et est reale, quia personale esse non potest cum sit perpetuum, ut
(D.50.15.4,3), aut conceditur singulari persone .. .'
49 See, for instance, Baldus ad X.l.2.11, n.12, fol. 26v (ed. Lyons, 1551), and id. ad C.6.
24.1; Bartolus ad D.l.1.9, n.52, fol. 12v (ed. Turin, 1577); Raynerius de Forlf, Rep. ad
D.1.1.9, n. 80-81, fol. 23r (in Albericus de Rosciate, Commentariorum Pars Prima super
Digesto Veteri, (Lyons, 1545)). There is also in D.5.1.76 a passage which was taken by the
Glossators and Commentators to indicate the sempiternity of the people, '... et populum
eundem hoc tempore putari qui abhinc centum annis fuissent, cum ex illis nemo nunc viveret'.
In this connection see, for instance, Albericus de Rosciate ad D.5.1.76, n.l, fol. 322v (ed.
cit.), 'Et multum continue allegatur hec lex quod idem est populus et universitas cuiusque
civitatis et loci qui fuit retro mille annis, quia successores représentant eandem universitatem';
and Paulus de Castro, ibid., n.2-3, fol. 138r (ed. Venice, 1593). D.5.1.76 itself has no con
nection with corporation-theory. Baldus refers to it on occasion as supporting the idea of the
sempiternity of the people: ibid., fol. 221 r, 'Populus tamen nunquam moritur, ut hie dicit
textus'. The populus is perpetual retrospectively and prospectively: see id. ad D.3.4.9, fol.
174v, 'Idem populus est, licet nemo vivat ex hits qui retro fuerunt per centum annos, ut
infra (D.5.1.76)'; and id. ad X.l.2.6, n.10, fol. 11 r, 'Item nota quod statutum presentium
canonicorum potest ligare futuros, quia eadem universitas est sicut populus, ut (D.5.1.76)'.
50 D.l.1.9, n. 34-35 (ed. Venice, 1616). Baldus gives detailed attention to the juristic
common-place, iurisdictio coheret territorio. For his attempts to determine the precise sense
in which jurisdiction can be said to adhere to a territory see his commentaries on C.9.1.11;
D.1.12.1,4, fol. 43r; Feud., 2.54, fol. 79v; and C.7.63.4. See also Bartolus ad D.2.1.1, n.15,
fol. 47r (ed. Turin, 1577). For Bartolus' view see Pietro Vaccari, "'Utrum jurisdictio cohae
reat territorio": la dottrina di Bartolo', Bartolo da Sassoferrato (See above, n.4), 2:737-53.
24 J.P. CANNING
a defined area becomes a unity wh
IV
In recent years Walter Ullmann has put scholars greatly in his debt by focusing
attention on another important aspect of medieval corporation-theory. This is
the idea current among the jurists that public bodies, such as the respublica and
the city -populus are on the same level as a minor under age.52 One of the major
sources for this view is a couple of passages in the Corpus Iuris Civilis itself,5 3
where in addition civitates are placed on a par with madmen and infants because
of their inability to express a legally valid will.54 The implications contained in
these passages for the government of the community were developed by medieval
jurists. A minor in Roman Law requires a tutor to act for him. It thus became
current in juristic writings for the community to be identified with a minor and
its ruler with a tutor on the grounds that the community does not rule itself but
is ruled by others. Indeed, the jurists' equation of the public community with a
minor is so universal that Walter Ullmann has been able to say in this connection:
Ί have not found one jurist who expressed a different standpoint'.55 If one looks
at the sources it is perfectly true that the comparison of the community with a
minor is a common theme.56 The jurists were in fact giving precision to govern
mental concepts long established in medieval political thought. The jurists applied
the concepts of the ruler as tutor, and the community as minor both to the
government of cities, and to the relationship between the king and his kingdom.
As regards the latter it was a common-place of political ideas from Carolingian
times that the monarch was the tutor of the minor, his kingdom, which was
committed by God to his care, so that he could act on its behalf.5 7
51 The territorial nature of the people's power and authority is in Baldus' thought a large
subject, a detailed treatment of which would be out of place here since that would go beyond
his theory of corporations. According to Baldus, territorial conceptions do limit the extent
of the people's jurisdiction; but more importantly the possession of a territory forms part
of the definition of what the populus is. When a populus is autonomous, Baldus considers
it to be nothing less than a territorially sovereign entity.
52 For a discussion of the place of this minority-concept in medieval jurisprudence see

Ullmann, 'Juristic Obstacles', pp. 48-64. See also Gierke, Genossenschaftsrecht, 3:397
400,484-85,488.
53 C.2.53.4, and C.l 1.30.3.
54 D.4.6.22,2.
55 'Juristic Obstacles', p. 54.
56 Out of a host of possible examples see, for instance, Accursius ad C.2.53.4, 'Sicut enim
minores sunt sub curatoribus, sic et respublica sub administratoribus' col. 406 (ed. Antwerp,
1575); and Jacobus de Arena ad C.2.53.4, fol. llr (ed. Lyons, 1541), 'Sed respublica equi
paratur minori, ideo quia per alium regitur sicut minor' (I have emended "regetur" in this
edition).
5 7 A connection was made between the tutorial function of the ruler, the inalienability of the
As regards the capacity of the city-community to act and will, the significant
implications of the minority thesis are these: that the community, being in the
position of a mere minor, lacks a legally valid will; and that its ruler, whether
he is styled the rector, the podestà, or by some other term, since he enjoys the
position of a tutor, acts on its behalf.58 For these reasons Walter Ullmann main
tains that there is a connection between the concept of the respublica as a minor,
and the idea that the public body as a corporation is a mere persona ficta: neither
the minor nor the fictive person can truly will.59 That is to say, the minority
thesis appears to fit in well with the fiction theory.
The minority-thesis, as expounded in these terms, rested on a secure foundation

just so long as medieval jurists adhered to the fundamental thesis that the com
munity, not being fully capable of validly acting and willing in a governmental
manner, is therefore subject to a rector appointed by a superior to act on its
behalf. There would, however, appear to be an obvious conflict between this
minority-thesis and Bartolus' and Baldus' theories of popular sovereignty which
involve the capacity of the community to act and will in a legally valid sense. It is
true that Bartolus in some passages designated the city-community as a minor,60
and that there is some trace of this idea in Baldus' works. But the point is that
rights of the community, and the latter's minority: the ruler as tutor of the community,
which was in the position of a minor committed to his care, had to conserve and protect the
rights of his ward and could not, therefore, alienate any of its rights. For the historical deve
lopment of these concepts see Walter Ullmann, The Carolingian Renaissance and the Idea of
Kingship (London, 1969), pp. 177-87; id. 'Schranken der Kdnigsgewalt im Mittelalter',
Historisches Jahrbuch 91 (1971), 12-18; id., Ά Note on Inalienability in Gregory VII',
Studi Gregoriani 9 (1972), 117-40; id., Medieval Foundations of Renaissance Humanism
(London, 1977), pp. 22, 36, and 109; and Hartmut Hoffmann, 'Die Unveràusserlichkeit der
Kronrechte im Mittelalter', Deutsches Archiv fur Erforschung des Mittelalters 20 (1964),
389—474. For an example of a jurist's treatment of this theme see Baldus ad X.2.24.33, fol.
236v, 'Rex debet esse tutor regni, non depopulator, nec dilapidator . . . nota quod periurium
non est causa finalis quare revocentur alienata, quia ex natura officii etiam in iuramento non
valeret, nam rex debet salutem reipublice tueri (D. 1.15.1)': this is the highly influential
decretal, Intellecto, of Honorius III, which concerned as it was with the King of Hungary's
oath at his coronation 'iura regni sui et honorem coronae illibata servare' (Friedberg, col.
373), provided a major locus for juristic discussion of the implications of the Kings' oaths
of non-alienation at their coronations. For the significance of Intellecto and the commen
taries it attracted see Peter N. Riesenberg, Inalienability of Sovereignty in Medieval Political
Thought (New York, 1956), pp. 113-44. Clearly in this passage Baldus considers that the
nature of the royal office itself, and not the oath at coronation, provides the primary reason
why the King has a duty of non-alienation. For further complex discussion of the question of
a promise of non-alienation at royal coronations (especially in England) see H.G. Richardson,
'The English Coronation Oath', Speculum 24 (1949), 44-75; Ernst H. Kantorowicz, 'Inaliena
bility: a Note on Canonical Practice and the English Coronation Oath in the Thirteenth
Century', Speculum 29 (1954), 488-502, and The King's Two Bodies, pp. 347-58.
5 8"
See Ullmann, 'luristic Obstacles', p. 55: 'There is indeed general agreeme
jurists that the prelate, the rector civitatis, the praeses provinciae, the p
were no more and no less than tutors of the community in their trust'.
59 Ibid., pp. 59-60.
60 See, for instance, his commentary on C.l 1.30.3, n.1-2, fol. 35v (ed. Tu
26 J.P. CANNING
neither jurist permitted this conc

sovereign and self-governing city
Bartolus and Baldus the compari
retained because the respublica wa
Civilis. For both jurists, however,
does not involve the wholesale ado
Walter Ullmann.
The likening of a city-corporatio

rance in Baldus' works in his comm
iure uti solet ideoque auxilium res
remarks is the equation of the p
consequent enjoyment of restitu
Baldus is here employing minority
city as a corporation. He rejects th
corporation has the status of a mi
ration (including the small city) is
Distinctio inter parvam civitatem
lege nec ratione, quia sive parv
consensum, nec veram negligenti
tate, qui non possunt vere consen
quorum favore universitas civit
restitutionis, quia sunt ex eodem
Baldus thus maintains that a city-
minor on the grounds that it cann
of its members cannot truly conse
reasons for the disabilities and pr
legally effective consent. Baldus m
corporation as a fictive person: the
the minor - their inability truly to
tation attractive. And it is in this sense that Walter Ullmann understands this
passage.63 This is, however, the only passage, as far as I know, in which Baldus
61 He here sums up the content of C.2.53.4 thus: 'Respublica equiparatur minori, et ideo
habet beneficium restitutionis in integrum. h.d.\
62 The [Lyons, 1498], edition contains 'qui non possmr vere consentire, et multi sunt
ibi pupilli . . — my emendation appears to make better sense. The discussion of the view
of Jacobus Butrigarius shortly precedes this passage. Cp. Baldus ad D.4.6.8, fol. 204v: 'Nota
argumentant quelibet civitas, castrum, vel villa potest in integrum restitui adversus prescrip
tionem, quia si hoc conceditur legato eius, ergo multo fortius sibi . .. Communiter nos tene
mus, quod universitates fungantar tare minoris et possint restitui... Et est ratio quia semper
sunt sub protectione et gubematione administratorum, et ideo equiparantur ecclesiis et
minoribus'. I have adopted 'fungantar tare' as in the Venice, 1616, ed. (cp. 'f/ngantar tare'
in the [Lyons], 1498, ed.).
63 'Juristic Obstacles', pp. 59-60.
makes this connection. Baldus' remarks here would not, however, seem to affect
his theory of popular sovereignty. It is difficult to see how they could apply to
an autonomous citizen-body which governs itself by its own consent. He clearly
has in mind here a city-corporation in its widest sense as including all those who
do not have the capacity for a legally valid consent.64 We enter here an ill-defined
area in Baldus' thought, that is to say, the relationship between the citizen-body,
meaning those who in one way or another participate in government, and the rest
of the city's inhabitants. The crucial point is that in the face of everything which
Baldus has to say elsewhere about the sovereign powers of the people, this passage
cannot be seen to undermine his contention that the autonomous populus can
govern itself through the exercise of its own consent.
It now remains only to examine very briefly Bartolus' and Baldus' views of
the structure of government of that self-governing corporation, the sovereign city
community: that is to say how it acts and wills through the medium of its mem
bers. In the works of both jurists their theories of the structure of popular govern
ment are directly opposed to those adumbrated by the fiction theory, and the
minority-thesis. Whereas the fiction theory and the minority-thesis envisage a
rector appointed by an external superior to rule the city-community which cannot
rule itself, Bartolus and Baldus maintain that the city-community possesses original
governmental power, and exercises this through the medium of, on the one hand,
general assemblies and councils representative of the people, and, on the other,
officers elected by the people and accountable to it.
Both jurists seek to develop a theory to account for the contemporary reality
of self-governing Italian cities. Bartolus produced for the structure of popular
government a model which is extremely well-known:65 the general assembly of
the people elects the council which acts as the governing body of the city, and
elects the city's officers. This council is thus an elected, representative body; and
Bartolus memorably expresses this representative character of the council in the
famous words: 'Consilium représentât mentem populi'.66 In contrast Baldus'
64 Cp. Baldus ad D.46.8.9, fol. 44v, 'Differt collegium ab universitate alicuius loci, quia in
collegio omnes habent intellectum, sed in universitate civitatis vel ville non' (intellectus is
a prerequisite for the capacity to give consent); and id. ad Durandi speculum iuris, 1.3.1,
p. 194 (ed. Frankfurt, 1592), 'Ille qui per se non potest consentire, ut civitas, non potest
facere procuratorem ad iudicia; secus in collegio vel corpore, ubi singuli habent immediatum
consensum per seipsos (D.3.3.8,2)'.
65 The best modern discussion is in Ullmann, 'De Bartoli sententia' (See above, n.4), pp.
716-23.
66 D.1.3.32, n.10, fol. 17v (ed. Turin, 1577). See also id. ad C.10.32.2, n.8, p. 37 (ed. Basel,
1588), 'Item nota quod de iure communi ad consilium civitatis spectat facere electiones
28 J.P. CANNING
treatment of the structure of popu

incomplete and jejune, and in ot
Bartolus, Baldus does not present
certain crucial points, while totally
The unevenness of his discussion co
its lack of comprehensiveness, infe
justified; but the explanation m
variety of political forms in Italy,
of popular government which mu
cations of reality ,6 7 It is quite po
basic principles and to leave to each
might happen to develop. Certai
only on occasion that they refer to
As regards the general assembly

that is original to contribute, but
legislative procedure Baldus treats
council as corporations.6 8 When t
gation, the corporation assumes th
necessary if it is to act and will.69
councils is by numerical majority w
tors, the normal means of expressi
the unitary will of the corporation
city of individual views and wishes
officialium, et syndicorum, facit infra

generali. Arenga tamen, seu parlament
consilium eligere, ut (D.1.2.2) circa pr
totum populum, ut not. supra (C.8.52.
67 Bartolus, however, in his tract De r

the different forms of government exis
'in primo gradu magnitudinis' which s
'in secundo gradu magnitudinis' which
magnitudinis' for which monarchy is
1577). These are of course very broad d
as he is concerned with popular govern
application.
68 Inst., 1.2,1, n.12-16, fol. 3v (ed. Ven

nothing new here concerning the for
n.37-38, fol. 19v (ed. cit.), where he d
procedure.
70 See, for instance, Baldus ad D.8.3.11

statur maiori parti'; and id. ad C.10.32
maiori parte existentium de corpor
Genossenschaftsrecht, 3:392-94, and
the Commentators on majority-voting
Baldus makes a major contribution, however, in his extensive treatment of the

officers of the people: the men who give executive, administrative, and judicial
expression to the people's jurisdiction. The strength of Baldus' discussion lies in
his consideration of those general principles which apply to every major office.
The nomenclatures employed reflect a wide range of terms: magistrates, decurio,
potestas, preses, consul, antianus, and prior. Behind the variety of different kinds
of office lies the common denominator of the relationship between every officer
and the people. Baldus' fundamental theme is simple: ultimate power lies with the
people whose will its officers put into practice. The people is the source of its
officers' power, and concedes to them just as much power, and tenure of office
as it wishes.71 Baldus' officers are representatives who receive their authority
from the people to act on its behalf.72 This is the conception of representation
essential to the theme of popular sovereignty.
cit.) Baldus requires for legislation the presence of two-thirds of the members of the corpo
ration (whether the general assembly or the council), and considers a simple numerical majority
of those present to be sufficient for expressing the will of the whole corporation: 'illud quod
obtinebitur per maiorem partem dictarum duarum partium erit statutum'. This was the
general doctrine of the Commentators: see, for instance, Raynerius de Forlî, loc. cit., and
Albericus de Rosciate ad D.l.3.32, n.122, fol. 42r (ed. Lyons, 1545), 'actus universitatis
debet fieri a maiori parte presentium ... et debent consentire ut corpus non ut singuli... et
sic patet quod in unoquoque actu requiritur consensus maioris partis et quod consentiant ut
corpus vel populus non ut singuli'.
71 See, for instance, Baldus, Cons., 1.40, fol. 17r, 'Captura fuit possibilis de iure, quia ipsi
antiani habent illam iurisdictionem, quam dat eis consuetudo . . . Minime dubitandum est,
quod ea iurisdictione uti possunt, quoniam ex quo hoc concessum est eis nedum per taciturn
consensum populi, sed per expressum statutum, tali iurisdictione et eo imperio uti possunt
presertim cum carceratio sit executiva iurisdictionis'; and id. ad X.l.36.3, n.2, fol. 125r,
'Quid de potestate alicuius terre? Respon. hoc non potest, nisi hoc sit ei concessum aconsue
tudine, vel a lege municipali, quia in re publica nullus potest, nisi quatenus est ei concessum
(D.3.4.3 ; et D.43.24.3,4)'; on the question of tenure see id. ad C.6.21.15; id., Lectura antiqua
ad D.12.1.33, fol. 21v;andid. adC.9.26.1.
72 This emerges clearly in his treatment of the legal status of the statute of the antiani. Are
they merely ius pretorium (as might be suggested by the equation of the antiani with certain
Roman magistrates such as the curule aediles - an idea to be found in Bartolus ad D.45.1.5,
n.4, fol. lOr, ed. Turin, 1577), or do they enjoy the same status as legal enactments of the
people itself: are they, in short, ius civile? Baldus maintains that, because the antiani represent
the people, their statutes are, indeed, ius civile: 'Sed pone anciani faciunt statutum, an istud
est ius pretorium vel civile? . . . Mihi videtur quod sit ius civile, quia non habent potestatem
hanc, quia magistratum gerunt, sed quia per collegium ipsorum representatur totus populus;
sed ediles sub nomine magistratus sortiti erant auctoritatem statuendi' (ad D.l.1.9, n.41-42,
ed. Venice, 1616). Baldus takes this view, because he has a clear understanding that in making
statutes the antiani act for the people: that is to say, their statutes embody the will of the
people, and, therefore, obtain their legal force from this, and not from the fact that they are
made by magistrates. See also id., De Pace Constantie, "Damna", fol. 92r, 'Item et si potestates,
consiliarii, et antiani hoc faciant, tota universitas fecisse videtur' (cp. Albericus de Rosciate
ad D.l.3.32, n.46, fol. 37v, ed. cit.: 'quod faciunt decuriones vel magistratus in officio eis
commisso populus ipse facere videtur"); and Baldus ad C.8.52.Rubr., and X.2.27.26, n.14,
fol. 346r(ed. Lyons, 1551).
30 J.P. CANNING
It is only possible here briefly t

ship between the people, and its o
ultimate possessor of that jurisdi
for it, Baldus borrows from the
concepts for expressing suprem
elaborated in theocratic terms. Th
of its officers who are thus its in
express the relationship: the city
in consequence accountable t
conceptions of the rôle of the r
theory and the minority-thesis. T
he maintains that the officers o
because they are accountable to th
their office ?s There is no sugges
of a minor; rather it is in that of
tutorial function expresses the
here involved a different o usage
the minority-thesis. Furthermo
X.l .2.8 had maintained that the re
possess jurisdiction, Baldus in his
he parts company with Innocent
(in habitu) that jurisdiction, whic
tion into action.76 This definition
See Cons., 2.335, fol. 88v, 'Potestas

camerariis non extendit se ad concepti
enim hoc nominatim mandari . . . St
eius est corrigere et derogare, cuius
tollere legem superioris'.
74
Baldus ad D.l.16.4,2, fol. 50v, 'Sicut in civilibus est dare generalem actionem domino
contra suum gestorem, sic et reipublice contra suum rectorem; et sicut ex probatis super
generali actione sequitur specialis condemnatio, ita et super inquisitione generali. Sed adverte
rector civitatis tenetur generali iudicio domino suo, id est universitati seu civitati, particulari
bus autem, quos lesit, tenetur singulari iudicio'.
75 X.2.19.11, n.58, fol. 192v, 'Et nota quod etiam sine accusatore fiunt contra rectores
terrarum inquisitiones générales. Nam sicut libellus generalis procedit contra tutorem, et
curatorem, ita contra magistratum, qui tenetur rei publice reddere rationem generalem de
omnibus gestis tempore sui officii'. The text of the Lyons, 1521, edition contains 'tenetur
ei publice', which I have emended.
76 See Innocent, n.3, fol. 3r (ed. Frankfurt, 1570), 'Et est notandum quod rectores assumpti
ab universitatibus habent iurisdictionem, et non ipse universitates. Aliqui tamen dicunt quod
ipse universitates deficientibus rectoribus possunt exercere iurisdictionem sicut rectores, quod
non credo'; and Baldus, n.10, fol. 16r, 'Habet igitur populus iurisdictionem habitu in confe
rendo, sed non in exercendo per se. At si populus est suorum civium princeps et dominus
potest sibi potestatem eligere. Si autem alius ei principatur, immediate talis electio indiget
confirmatione. Illud certum est quod iurisdictio nisi prius habeatur in habitu, id est in virtute,
non potest excitari ad actum suum, ut notât Ioannes Monachusin(Sext., 1.3.11)'. Cp. Johannes
the jurisdiction of the people which ultimately as the source of that jurisdiction
continues to retain it. Clearly this is a view incompatible with the fiction theory,
and the minority-thesis. This creative usage of the philosophical concepts of
habitus, potentia, and actus, which is found elsewhere in this connection in
Baldus' works,77 reveals his great originality.
VI
Clearly the corporation-theories of the medieval Italian jurists occupy a unique

and important position in the history of political thought. The ideas of Baldus
have here been particularly stressed, and surely with justification, because, as we
have seen, he achieved something very important: he combined the ultimately
Aristotelian conception of the people composed of natural, political men, with
juristic corporational concepts, thus adding juristic refinement to the idea of the
people as a political entity. The result was that Baldus produced a conception of
the city-populus that had not been enunciated before, namely that it is a collection
of natural, political men (citizens) into a unitary entity which is an abstract and
immortal legal person with a substratum of physical members, and which is both
self-governing and territorial.
J.P. Canning UNIVERSITY COLLEGE

OF NORTH WALES, BAN
Monachus ad Sext., 1.3.11, η.12-13, fol. 36r (ed. Par

licentia (D.2.1.3), unde iurisditio a ius et ditio, id est
nata est iurisditio, id est potestas iuris dicendi (D.39.5
quam excitetor ad actum ... Et notandum est quod i
dante est iudicis dandi potestas. Sed prout est in term
iuris dicendi potestas que postmodum reducitor ad ac
beyond these ideas of Johannes Monachus.
77 See Feud., 2.54, fol. 79v, 'In magistrate (iurisdictio

quo per se iurisdictio nihil agit, ut (D.1.2.2,13). Et sic
ita iurisdictio quandoque est in habitu, quandoque in a
in actu per exercitium, dixi (D.l.12.1) per Bartolum (D
in sua substantia, que habitus vocator, plectendi, de
publico propter bonum publicum principaliter et secu
introducta. Sed prout inest ipsi magistratoi est regent
actuque consistit iuxta no. per modernos in (D.2.1
fol. 46v (ed. Turin, 1577): 'potest considerari offici
quidem acciperetur officium pro totali administration
iurisdictio est ius et potestas etc., ut supra dixi, officium
(D.50.8.5,1)'. See also Baldus ad C.7.62.6: 'Dicet aliquis
quocunque magistrate. Respondeo sic, tamen non co
currens in actu, et ideo lex et magistrates auctoritate
potentia in actu deducta efficitur unum et idem cum
course, the common-coin of Scholastic philosophy
lengthy discussion of habitus in S.T., la 2ae.49.1-4 w
(art. 3): 'Dicendum quod habitus est actus quidam, in
32 J.P. CANNING
potest esse principium operationis. Sed

habitus dicitur actus primus, et operat
1955).

Italian Jurists' Political Thought on Corporations in the 13th-14th Centuries

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THE CORPORATION IN THE POLITICAL THOUGHT OF THE ITALIAN JURISTS OF THE

The corporation-theory of the thirteenth and fourteenth-century Italian

1 Das deutsche Genossenschaftsrecht, 3 (Berlin, 1881), 186-644. For a recent treatment of

theory, and in their subtlety an

The theory of the sovereign, self-governing city-community or populus, com

It should, however, be said at the outset that there is some imprecision in

vel melior pars: the implication

In considering the medieval juris

9 That is to say apart from consideratio

12 C.1.14.12,n.4, fol.29r (ed. Frankfurt, 1578).

13 See Gierke, Genossenschaftsrecht, 3:202 -206.

In order to express that the populus as a unity is an abstraction, Baldus employs

Omnis universitas dicitur corpus, quia compositum et aggregatum. Ubi

corpora sunt tanquam materia, dic

Baldus' definition of the populus is

Verum est quod universitas non potest consentire antequam congregetur,

17 Χ.1.31.3, n.7, fol. 116r.

18 D.29.2.25,1, fol. 97r.

There is a large modern literature on the doctrines of the medieval jurists

with the subject in the sense tha

According to the realist theory,

Et intellige de illa universitate,

By way of a penalty for its delic

23 Genossenschaftsrecht, 3:277-85, 353-68,425-36.

26 See Gierke, ibid.·,Duff,Personality, pp. 234-36;and UUmann, ibid., pp. 58-61.

2 7 Sex tus, 5.11.5, n.8-9, fol. 123r(ed. Lyons, 1550).

28 X.5.39.53, n.l, fol. 559r(ed. Frankfurt, 1570).

29 X.2.20.57, n.5, fol. 270v (ed. cit).

support for fiction or realist theorie

In any case the medieval jurists do no

Walter Ullmann, 'The Delictal Responsibi

31 Genossenschaftsrecht, 3:366, 390, and

32 Rodriguez, 'Innocent IV', p. 312, makes

33 See Gillet, La personnalité, pp. 163-

On the crucial question of the possession of jurisdiction by the corporation,

When we look at Baldus' treatment of the populus as a corporation, we see

As we have seen, a legal person may be defined as an entity capable of bearing

34 Cons., 65, n.7, fol. 23r.

35 See above, p. 16.

36 Foundations, pp. 117, 130, and 136, n. 4.

legal rights and duties. But this d

38 See above, p. 13.

39 The concept of natural, political ma

40 See 'Juristic Obstacles', pp. 60-62.

It is certainly true that Baldus' views concerning the populus as a corporation,

43 Bartolus, for instance, considers that the city-community as a corporation is a person by

There are a very few passages w

There remain two further aspec

44 X.l.3.15, n.6, fol. 32v.

Queritur ulterius numquid intrinseci possint facere statuta contra expulsos?

a defined area becomes a unity wh

52 For a discussion of the place of this minority-concept in medieval jurisprudence see

53 C.2.53.4, and C.l 1.30.3.

55 'Juristic Obstacles', p. 54.

The minority-thesis, as expounded in these terms, rested on a secure foundation

59 Ibid., pp. 59-60.

neither jurist permitted this conc

The likening of a city-corporatio

63 'Juristic Obstacles', pp. 59-60.

treatment of the structure of popu

As regards the general assembly