Corporation Law as the Constitutional Law of the Church
The principle of jurisdictional limitations upon power and authority was a fundamental constitutional principle underlying the new system of canon law of the late eleventh and twelfth centuries.
Yet an analysis of the ways in which the jurisdictional principle was applied requires a consideration not of constitutional law as such but rather of corporation law. According to the canonists, it was the church as a corporate legal entity that conferred jurisdiction upon individual ecclesiastical officers (pope, bishops, abbots), and it was the law of corporations that determined the nature and limits of the jurisdiction thus conferred.The term "corporation" (universitas; also corpus or collegium) was derived from Roman law, as were many of the terms used to define it and many of the rules applicable to it. Yet there are substantial differences between the corporation law of the Romans and that of the twelfth-century western European jurists.
According to Roman law at the time of Justinian, 38 the state as such (still called populus Romanus) was considered to be a corporation, but its rights and obligations were regulated administratively rather than in the courts and it was not subject to the civil law; however, the imperial treasury did have rights of ownership and other civil rights and obligations, and could sue and be sued in the ordinary courts. Also municipalities were corporations, with the right to own property and make contracts, to receive gifts and legacies, to sue and be sued, and, in general, to perform legal acts through representatives.
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Similarly, many private associations, including organizations for maintaining a religious cult, burial clubs, political clubs, and guilds of craftsmen or traders, were considered to be corporations, although the extent of their rights depended on privileges and liberties granted by the emperor.
In 313, when Christianity became the official religion of the empire -- and to a certain extent before that time -- churches and monasteries were added to the list of associations that were considered to have the capacity to receive gifts and legacies as well as to have property and contract rights generally and the right to act as legal persons through representatives. In addition, the legislation of Justinian recognized charitable societies such as hospitals, asylums, orphanages, homes for the poor, and homes for the aged as having legal capacity to receive gifts and legacies for special purposes, with a general right of supervision preserved in the bishop of the diocese. (Neither in the East nor in the West was the concept of a corporation as a legal entity applied, prior to the late eleventh century, to the whole church -- the Church Universal.)The Roman jurists, with their intense hostility to definitions and theories, did not address in general terms the question of the relationship of the universitas to the ensemble of its members. The Digest stated epigrammatically: "What is of the corporation is not of individuals," and again, "If something is owed to a corporation it is not owed to individuals; nor do individuals owe what the corporation owes." However, many questions -- such as whether a corporation derives its existence and its powers from a grant by a public authority or from the will of its founders or from its own nature as an association, what powers are exercised by its officers and what cannot be done by them without the consent of the members, and how the officers are to be chosen and how and why they may be dismissed -- were not discussed by the Roman jurists. Even the phrases "legal person" and "legal personality" were rarely used by them, and were never analyzed. Only in retrospect can one discern several implicit principles of Roman corporation law that became explicit in Western legal thought in the twelfth century when corporation law first began to be systematized.
Two of these were, first, the principle that a corporation has legal capacity to act through representatives, and second, the principle that the rights and duties of the corporation are distinct from those of its officers.Roman rules of corporation law were carried by the church into the Germanic communities of western Europe. They had to compete, however, with Christian concepts of the corporate nature of ecclesiastical communities and also with Germanic concepts of the corporate nature of associations generally. St. Paul had called the church the body or corpus of Christ (1 Cor. 12:27), and he wrote to the Galatians: "for you are all
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one in Christ Jesus" (Gal. 3:28). Other Christian metaphors for the church were "wife," "spouse," "mother." All such personifications were meant to apply to the fellowship of believers, "the communion of saints," "the congregation of the faithful." Although it was accepted that all Christians everywhere formed a spiritual body, the main emphasis was on the spiritual unity of individual churches or individual dioceses. In that connection it was further emphasized that the prelate of the individual church____________ the parish priest or the bishop or some other shepherd of the flock__________ was united
with his church in a spiritual marriage. As Christ was believed to be married to the Church Univer sal, so the bishop or priest was believed to be married to the local church. He represented it as the head represents the rest of the body. These Christian ideas were diametrically opposed to the ideas implic it in the treatment of churches as corporations under Roman law. This is not to say that under the Roman Empire or under Germanic emperors and kings the church opposed giving to individual churches the status of corporations under Roman law. On the contrary, it eagerly sought the protection of that status. Yet it was at least anomalous that under Roman law the Christians who composed an ecclesiastical corporation bore no responsibility for acts performed by prelates in the name of the corporation and for its benefit; and it was even more anomalous that the prelates themselves were considered to act only as agents and not, for example, as constituent members or partners within the association.
Germanic concepts of association bore some resemblance to Christian concepts of the church as "one person," a corpus mysticum. As Otto von Gierke, the great historian of Germanic law, emphasized, the Germanic household, or warrior band, or clan, or village was conceived to have a group personality which all the members shared; its property was their common property and they bore a common liability for its obligations. However, according to Gierke the Genossenschaft ("fellowship") derived its unity and its purpose not from a higher authority, whether divine or human, but solely from within itself, that is, solely from the voluntary coming together of the members to achieve an end set by themselves. 39
The twelfth-century canonists utilized earlier Roman, Germanic, and Christian concepts of corporate entities in developing a new system of corporation law applicable to the church. To some extent they harmonized the three competing sets of concepts. They did so, however, not as an abstract exercise in legal reasoning but in order to achieve practical solutions to actual legal conflicts that arose in the wake of the Papal Revolution: legal conflicts between the church and the secular polities as well as legal conflicts within the church. At the same time, they looked for the interrelationships among these legal conflicts and sought to systematize the underlying principles by which they were to be resolved.
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The following questions illustrate the kinds of practical issues that arose in litigation in the twelfth century.
Is the head of a corporation (say, a bishop) required to consult its members (the chapter) before making a decision to sue or to answer a charge in court? Is he required not only to consult them but also to obtain their consent? What about a decision to alienate property, or a decision to confer privileges of various kinds?
Can a chapter repudiate a settlement with an opposing party made by a bishop without its consent?
How is the consent of a chapter to be expressed?
Who is to exercise the powers of the head of a corporation during a vacancy, that is, when the head has died or resigned or been dismissed?
If the clergy of a chapter may act on behalf of their bishop if he becomes incapable through illness or old age, may they do so also if he is neglectful?
Can a corporation commit crimes? Can it commit torts? Is it liable for the crimes or torts of its officers?
May an ecclesiastical corporation be formed without the permission of the pope?
If a corporation loses all its members, does it continue to exist? If not, may it be revived by one or more applicants who qualify for membership?
What happens to the property of a corporation that ceases to exist?
May a corporation create law for its members? May it select a magistrate to exercise lawmaking power in its name? May it select a judge to decide cases in its name?
May a corporation to which property has been given for a particular purpose lawfully decide to use that property for another purpose?
And a final question: would the answers to those questions be different if the corporation were not a bishopric or an abbey or some other local body, but the entire Church of Rome, headed by the sole vicar of Christ on earth?
Such practical legal questions arose once the church in the West declared itself to be a corporate legal entity -- an universitas -- independent of emperors, kings, and feudal lords. What is most striking about these questions is, first, their legal formulation; second, the high degree of conscious interrelationship among them; and third (related to the second), the systematic character of the answers that were eventually given, that is, the resort to a conscious systematization of corporation law in order to arrive at a set of satisfactory solutions.
The body of corporation law developed in the Roman Catholic Church in the course of the late eleventh, the twelfth, and the thirteenth centuries may be characterized as a subsystem within the system of
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canon law as a whole. It differed substantially from the corporation law of the Romans as found in the texts of Justinian. In the first place, the church rejected the Roman view that apart from public corporations (the public treasury, the cities, churches) only collegia recognized as corporations by th e imperial authority were to have the privileges and liberties of corporations. In contrast, under canon law any group of persons which had the requisite structure and purpose __ for example, an almshou se or a hospital or a body of students, as well as a bishopric or, indeed, the Church Universal________________________________________________________
constituted a corporation, without special permission of a higher authority. 40 Second, the.c hurch rejected the Roman view that only a public corporation could create new law for its members or exercise judicial authority over them. In contrast, under canon law any corporation could have legislative and judicial "jurisdiction" over its members. Third, the church rejected the Roman view that a corporation could only act through its representatives and not through the ensemble of its members. Instead, canon law required the consent of the members in various types of situations. Fourth, the church rejected the Roman maxim that "what pertains to the corporation does not pertain to its members." According to canon law, the property of a corporation was the common property of its members, and the corporation could tax its members if it did not otherwise have the means of paying a debt. 41 —
These and various other rules and concepts of canon law seem to reflect Germanic ideas of the corporation as a fellowship, with a group personality and a group will, in contrast to the Roman idea of a corporation as an "institution," whose identity is created by a higher political authority.
42 Other rules and concepts of canon law, however, seem to reflect the "institutional" idea of the corporation. Thus, every corporation had to have a head (usually called a rector or prelate in an ecclesiastical corporation and a president or governor in a lay corporation), who was empowered to perform acts which the corporation could not accomplish itself (such as administration of property and adjudication of disputes), and who had rights distinct from those of the corporation. The head of the corporation, as well as other officers, was viewed as a species of guardian or tutor, and the corporation as a kind of ward or minor. 43In contrast to the rule of Roman law, canon law imposed civil and criminal liability on a corporation when a majority of its members consented to a wrongful act, but in contrast to Germanic law the wrongful acts of officers of a corporation could not be imputed to the corporation itself. 44 Thus a city could be placed under ecclesiastical ban for the crimes of its citizens but not, theoretically, for the crimes of its officers.What has been said thus far may seem to support the thesis put forward by Gierke that the corporation law of the medieval church wavered
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between the Germanic concept of the corporation as a group personality and the Roman concept of the corporation as an artificial institution (Anstalt). ( Gierke went on to argue that in the fourteenth century the Roman concept won out, with disastrous consequences for Europe because absolutist theories were ultimately built upon it.) 45 Gierke's thesis is weakened by the fact that the medieval canonists themselves were apparently not aware of either of the two concepts. 46 It is even more seriously impaired by the fact that both concepts are greatly overdrawn. It is doubtful that corporate personality in a legal sense can ever emerge solely from within a group; its existence always depends partly on the recognition of it by those outside_in other words, by the larger society of which it is a part. It is equally doubtful that corporate personality in a legal sense can ever be imposed solely by action of society, or the state, without the prior existence of a group of people having common interests and the capability of acting as a unit.
Tierney emphasizes that it was not until the thirteenth and fourteenth centuries -- that is, two centuries after the systematization of the canon law of corporations had begun -- that the canonists developed a "coherent theory of corporation law," and that even then they were "not interested in philosophical problems of a corporation's essence." 47 These two points help to make clear that the system -- and eventually a "coherent theory" -- of corporation law was a legal response to the actual situation and the actual problems that confronted the church, and not a prior intellectual construct to which that situation and those problems were somehow adapted. Yet it would be wrong to suppose that the new canon law of corporations did not, from the beginning, rest on philosophical presuppositions. For the most part the canonists accepted the moderate nominalist position that a group cannot have a personality or a will distinct from that of its members. 48 This philosophical position differs from both the romantic theory of Gierke and the positivist theories that Gierke fought against. Moreover, it is a philosophical position that is particularly suited to the construction of a system of corporation law, since it provides a neutral philosophical basis for raising crucial legal questions concerning the distribution of powers between the officers and the members of a corporation.
Thus if the corporation is understood to be the totality of its parts taken as parts, it becomes easy to consider the rights and duties of the members as members, and of the head as head, and the relationships between those two sets of rights and duties. This approach was implicit in the legislation of the late eleventh and early twelfth centuries which Gratian summarized when he stated that a bishop, as the head of the church in his diocese, needed the cooperation of the members, that is, the chapter, in conferring benefices and privileges, in alienating church property, and in judging cases. 49 Some decades later Pope Alexander III
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confirmed and extended these rules, stating that in various types of cases the "advice" or "consent" of the chapter was required. 50 -"The chapter" was understood to consist of the clergy. In amplifying the meaning of advice and consent, later canonists distinguished among three different spheres of rights: rights principally of the corporation as such, rights principally of individual members or officers as individual members or officers, and rights of the corporation and an individual member o r officer in common. Thus it was said that if an attorney or other agent is to be appointed in a matter that touches principally the prelate, he should be appointed by the prelate with the consent of the chapter; but if the matter touches principally the chapter, he should be appointed by the chapter with the advice of the prelate; and if the matter touches both in common, he should (as in the first case) be appointed by the prelate with the consent of the chapter. -51 A later canonist explained these rules more generally: the consent of the chapter is necessary whenever the action concerns the corporate body as a whole, since the bishop and chapter together form that body. _5 2 Here Christian metaphors were used: the bishop was married to his church just as the pope, as vicar of Christ, wa s married to the Church Universal. However, the church as a corporate entity was identified legally as the clergy; it was the chapter, not "the congregation of the faithful," whose consent was to be obtained. 53.
Analysis of the powers of the head and members of ecclesiastical corporations, including especially cathedral chapters (bishoprics), led to the development in the twelfth and thirteenth centuries of a legal theory of limitations upon the power of ecclesiastical and secular rulers to act alone, without the advice and consent of their counselors and chief subordinates. Here a maxim of Roman law was seized upon, transformed, and raised to the level of a constitutional principle: "What concerns everyone ought to be considered and approved by everyone." 54