Front Page Titles (by Subject) MORAL PERSONALITY AND LEGAL PERSONALITY 1 - The Collected Papers of Frederic William Maitland, vol. 3
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MORAL PERSONALITY AND LEGAL PERSONALITY 1 - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 3 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 3.
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MORAL PERSONALITY AND LEGAL PERSONALITY1
The memory of Henry Sidgwick is not yet in need of revival. It lives a natural life among us, and will live so long as those who saw and heard him draw breath. Still the generations, as generations must be reckoned in this place, succeed each other rapidly, and already I may be informing, rather than reminding, some of you when I say that among his many generous acts was the endowment of a readership in English Law, of which one of his pupils was fortunate enough to be the first holder. If that pupil ventures to speak here this afternoon, it will not be unnatural that he should choose his theme from the borderland where ethical speculation marches with jurisprudence.
Ethics and Jurisprudence.—That such a borderland exists all would allow, and, as usually happens in such cases, each of the neighbouring powers is wont to assert, in practice, if not in theory, its right to define the scientific frontier. We, being English, are, so I fancy, best acquainted with the claims of ethical speculation, and in some sort prejudiced in their favour. We are proud of a long line of moralists, which has not ended in Sidgwick and Martineau and Green, in Herbert Spencer and Leslie Stephen, and we conceive that the “jurist,” if indeed such an animal exists, plays, and of right ought to play, a subordinate, if not subservient, part in the delimitation of whatever moral sciences there may happen to be. I am not sure, however, that the poor lawyer with antiquarian tastes might not take his revenge by endeavouring to explain the moral philosopher as a legal phenomenon, and by classing our specifically English addiction to ethics as a by-product of the specifically English history of English law. That statement, if it be more than the mere turning of the downtrodden worm, is obviously too large, as it is too insolent, a text for an hour’s lecture. What I shall attempt will be to indicate one problem of a speculative sort, which (so it seems to me) does not get the attention that it deserves from speculative Englishmen, and does not get that attention because it is shrouded from their view by certain peculiarities of the legal system in which they live.
The Natural Person and the Corporation.—Texts, however, I will have. My first is taken from Mr Balfour. Lately in the House of Commons the Prime Minister spoke of trade unions as corporations. Perhaps, for he is an accomplished debater, he anticipated an interruption. At any rate, a distinguished lawyer on the Opposition benches interrupted him with “The trade unions are not corporations.” “I know that,” retorted Mr Balfour, “I am talking English, not law.” A long story was packed into that admirable reply.1
And my second text is taken from Mr Dicey, who delivered the Sidgwick lecture last year. “When,” he said, “a body of twenty, or two thousand, or two hundred thousand men bind themselves together to act in a particular way for some common purpose, they create a body, which by no fiction of law, but by the very nature of things, differs from the individuals of whom it is constituted1 .” I have been waiting a long while for an English lawyer of Professor Dicey’s eminence to say what he said—to talk so much “English.” Let me repeat a few of his words with the stress where I should like it to lie: “they create a body, which by no fiction of law, but by the very nature of things, differs from the individuals of whom it is constituted.” So says Blackstone’s successor. Blackstone himself would, I think, have inverted that phrase, and would have ascribed to a fiction of law that phenomenon—or whatever we are to call it—which Mr Dicey ascribes to the very nature of things.
Now for a long time past the existence of this phenomenon has been recognised by lawyers, and the orthodox manner of describing it has been somewhat of this kind. Besides men or “natural persons,” law knows persons of another kind. In particular it knows the corporation, and for a multitude of purposes it treats the corporation very much as it treats the man. Like the man, the corporation is (forgive this compound adjective) a right-and-duty-bearing unit. Not all the legal propositions that are true of a man will be true of a corporation. For example, it can neither marry nor be given in marriage; but in a vast number of cases you can make a legal statement about x and y which will hold good whether these symbols stand for two men or for two corporations, or for a corporation and a man. The University can buy land from Downing, or hire the gildhall from the Town, or borrow money from the London Assurance; and we may say that exceptis excipiendis a court of law can treat these transactions, these acts in the law, as if they took place between two men, between Styles and Nokes. But further, we have to allow that the corporation is in some sense composed of men, and yet between the corporation and one of its members there may exist many, perhaps most, of those legal relationships which can exist between two human beings. I can contract with the University: the University can contract with me. You can contract with the Great Northern Company as you can with the Great Eastern, though you happen to be a shareholder in the one and not in the other. In either case there stands opposite to you another right-and-duty-bearing unit—might I not say another individual?—a single “not-yourself” that can pay damages or exact them. You expect results of this character, and, if you did not get them, you would think ill of law and lawyers. Indeed, I should say that, the less we know of law, the more confidently we Englishmen expect that the organised group, whether called a corporation or not, will be treated as person: that is, as right-and-duty-bearing unit.
Legal Orthodoxy and the Fictitious Person.—Perhaps I can make the point clearer by referring to an old case. We are told that in Edward IV’s day the mayor and commonalty—or, as we might be tempted to say, the municipal corporation—of Newcastle gave a bond to the man who happened to be mayor, he being named by his personal name, and that the bond was held to be void because a man cannot be bound to himself1 . The argument that is implicit in those few words seems to us quaint, if not sophistical. But the case does not stand alone; far from it. If our business is with medieval history and our aim is to re-think it before we re-present it, here lies one of our most serious difficulties. Can we allow the group—gild, town, village, nation—to stand over against each and all of its members as a distinct person? To be concrete, look at Midsummer Common. It belongs, and, so far as we know, has always in some sense belonged, to the burgesses of Cambridge. But in what sense? Were they co-proprietors? were they corporators? Neither—both?
I would not trouble you with medievalism. Only this by the way: If once you become interested in the sort of history that tries to unravel these and similar problems, you will think some other sorts of history rather superficial. Perhaps you will go the length of saying that much the most interesting person that you ever knew was persona ficta. But my hour flies.
To steer a clear or any course is hard, for controversial rocks abound. Still, with some security we may say that at the end of the Middle Age a great change in men’s thoughts about groups of men was taking place, and that the main agent in the transmutation was Roman Law. Now just how the classical jurists of Rome conceived their corpora and universitates became in the nineteenth century a much debated question. The profane outsider says of the Digest what some one said of another book:
Where people have tried to make antique texts do modern work, the natural result is what Mr Buckland has happily called “Wardour Street Roman Law1 .” Still, of this I suppose there can be no doubt, that there could, without undue pressure, be obtained from the Corpus Juris a doctrine of corporations, which, so far as some main outlines are concerned, is the doctrine which has ruled the modern world. Nor would it be disputed that this work was done by the legists and canonists of the Middle Age, the canonists leading the way. The group can be a person: co-ordinated, equiparated, with the man, with the natural person.
With the “natural” person—for the personality of the universitas, of the corporation, is not natural—it is fictitious. This is a very important part of the canonical doctrine, first clearly proclaimed, so we are told, by the greatest lawyer that ever sat upon the chair of St Peter, Pope Innocent IV. You will recall Mr Dicey’s words: “not by fiction of law, but by the very nature of things.” Invert those words, and you will have a dogma that works like leaven in the transformation of medieval society.
If the personality of the corporation is a legal fiction, it is the gift of the prince. It is not for you and me to feign and to force our fictions upon our neighbours. “Solus princeps fingit quod in rei veritate non est1 .” An argument drawn from the very nature of fictions thus came to the aid of less questionably Roman doctrines about the illicitness of all associations, the existence of which the prince has not authorised. I would not exaggerate the importance of a dogma, theological or legal. A dogma is of no importance unless and until there is some great desire within it. But what was understood to be the Roman doctrine of corporations was an apt lever for those forces which were transforming the medieval nation into the modern State. The federalistic structure of medieval society is threatened. No longer can we see the body politic as communitas communitatum, a system of groups, each of which in its turn is a system of groups. All that stands between the State and the individual has but a derivative and precarious existence.
Do not let us at once think of England. English history can never be an elementary subject: we are not logical enough to be elementary. If we must think of England, then let us remember that we are in the presence of a doctrine which in Charles II’s day condemns all—yes, all—of the citizens of London to prison for “presuming to act as a corporation.” We may remember also how corporations appear to our absolutist Hobbes as troublesome entozoa. But it is always best to begin with France, and there, I take it, we may see the pulverising, macadamising tendency in all its glory, working from century to century, reducing to impotence, and then to nullity, all that intervenes between Man and State.
The State and the Corporation.—In this, as in some other instances, the work of the monarchy issues in the work of the revolutionary assemblies. It issues in the famous declaration of August 18, 1792: “A State that is truly free ought not to suffer within its bosom any corporation, not even such as, being dedicated to public instruction, have merited well of the country1 .” That was one of the mottoes of modern absolutism: the absolute State faced the absolute individual. An appreciable part of the interest of the French Revolution seems to me to be open only to those who will be at pains to give a little thought to the theory of corporations. Take, for example, those memorable debates touching ecclesiastical property. To whom belong these broad lands when you have pushed fictions aside, when you have become a truly philosophical jurist with a craving for the natural? To the nation, which has stepped into the shoes of the prince. That is at least a plausible answer, though an uncomfortable suspicion that the State itself is but a questionably real person may not be easily dispelled. And as with the churches, the universities, the tradegilds, and the like, so also with the communes, the towns and villages. Village property—there was a great deal of village property in France—was exposed to the dilemma: it belongs to the State, or else it belongs to the now existing villagers. I doubt we Englishmen, who never clean our slates, generally know how clean the French slate was to be.
Associations in France.—Was to be, I say. Looking back now, French lawyers can regard the nineteenth century as the century of association, and, if there is to be association, if there is to be group-formation, the problem of personality cannot be evaded, at any rate if we are a logical people. Not to mislead, I must in one sentence say, that even the revolutionary legislators spared what we call partnership, and that for a long time past French law has afforded comfortable quarters for various kinds of groups, provided (but notice this) that the group’s one and only object was the making of pecuniary gain. Recent writers have noticed it as a paradox that the State saw no harm in the selfish people who wanted dividends, while it had an intense dread of the comparatively unselfish people who would combine with some religious, charitable, literary, scientific, artistic purpose in view. I cannot within my few minutes be precise, but at the beginning of this twentieth century it was still a misdemeanour to belong to any unauthorised association having more than twenty members. A licence from the prefect, which might be obtained with some ease, made the association non-criminal, made it licit; but personality—“civil personality,” as they say in France—was only to be acquired with difficulty as the gift of the central government.
Now I suppose it to be notorious that during the last years of the nineteenth century law so unfavourable to liberty of association was still being maintained, chiefly, if not solely, because prominent, typically prominent, among the associations known to Frenchmen stood the congrégations—religious houses, religious orders. The question how these were to be treated divided the nation, and at last, in 1901, when a new and very important law was made about “the contract of association,” a firm line was drawn between the non-religious sheep and the religious goats. With the step then taken and the subsequent woes of the congregations I have here no concern; but the manner in which religious and other groups had previously been treated by French jurisprudence seems to me exceedingly instructive. It seems to me to prove so clearly that in a country where people take their legal theories seriously, a country where a Prime Minister will often talk law without ceasing to talk agreeable French, the question whether the group is to be, as we say, “a person in the eye of the law” is the question whether the group as group can enjoy more than an uncomfortable and precarious existence. I am not thinking of attacks directed against it by the State. I am thinking of collisions between it and private persons. It lives at the mercy of its neighbours, for a law-suit will dissolve it into its constituent atoms. Nor is that all. Sometimes its neighbours will have cause to complain of its legal impersonality. They will have been thinking of it as a responsible right-and-duty-bearing unit, while at the touch of law it becomes a mere many, and a practically, if not theoretically, irresponsible many.
Group-Personality.—During the nineteenth century (so I understand the case) a vast mass of experience, French, German, Belgian, Italian, and Spanish (and I might add, though the atmosphere is hazier, English and American), has been making for a result which might be stated in more than one way. (1) If the law allows men to form permanently organised groups, those groups will be for common opinion right-and-duty-bearing units; and if the law-giver will not openly treat them as such, he will misrepresent, or, as the French say, he will “denature” the facts: in other words, he will make a mess and call it law. (2) Group-personality is no purely legal phenomenon. The law-giver may say that it does not exist, where, as a matter of moral sentiment, it does exist. When that happens, he incurs the penalty ordained for those who ignorantly or wilfully say the thing that is not. If he wishes to smash a group, let him smash it, send the policeman, raid the rooms, impound the minute-book, fine, and imprison; but if he is going to tolerate the group, he must recognise its personality, for otherwise he will be dealing wild blows which may fall on those who stand outside the group as well as those who stand within it. (3) For the morality of common sense the group is person, is right-and-duty-bearing unit. Let the moral philosopher explain this, let him explain it as illusion, let him explain it away; but he ought not to leave it unexplained, nor, I think, will he be able to say that it is an illusion which is losing power, for, on the contrary, it seems to me to be persistently and progressively triumphing over certain philosophical and theological prejudices.
You know that classical distribution of Private Law under three grand rubrics—Persons, Things, Actions. Half a century ago the first of these three titles seemed to be almost vanishing from civilised jurisprudence. No longer was there much, if anything, to be said of exceptional classes, of nobles, clerics, monks, serfs, slaves, excommunicates or outlaws. Children there might always be, and lunatics; but women had been freed from tutelage. The march of the progressive societies was, as we all know, from status to contract. And now? And now that forlorn old title is wont to introduce us to ever new species and new genera of persons, to vivacious controversy, to teeming life; and there are many to tell us that the line of advance is no longer from status to contract, but through contract to something that contract cannot explain, and for which our best, if an inadequate, name is the personality of the organised group.
Fact or Fiction?—Theorising, of course, there has been. I need not say so, nor that until lately it was almost exclusively German. Our neighbours’ conception of the province of jurisprudence has its advantages as well as its disadvantages. On the one hand, ethical speculation (as we might call it) of a very interesting kind was until these last days too often presented in the unattractive guise of Wardour Street Roman Law, or else, raising the Germanistic cry of “Loose from Rome!” it plunged into an exposition of medieval charters. On the other hand, the theorising is often done by men who have that close grasp of concrete modern fact which comes of a minute and practical study of legal systems. Happily it is no longer necessary to go straight to Germany. That struggle over “the contract of association” to which I have alluded, those woes of the “congregations” of which all have heard, invoked foreign learning across the border, and now we may read in lucid French of the various German theories. Good reading I think it; and what interests me especially is that the French lawyer, with all his orthodoxy (legal orthodoxy) and conservatism, with all his love of clarity and abhorrence of mysticism, is often compelled to admit that the traditional dogmas of the law-school have broken down. Much disinclined though he may be to allow the group a real will of its own, just as really real as the will of a man, still he has to admit that if n men unite themselves in an organised body, jurisprudence, unless it wishes to pulverise the group, must see n+1 persons. And that for the mere lawyer should I think be enough. “Of heaven and hell he has no power to sing,” and he might content himself with a phenomenal reality—such reality, for example, as the lamp-post has for the idealistic ontologist. Still, we do not like to be told that we are dealing in fiction, even if it be added that we needs must feign, and the thought will occur to us that a fiction that we needs must feign is somehow or another very like the simple truth.
Why we English people are not interested in a problem that is being seriously discussed in many other lands, that is a question to which I have tried to provide some sort of answer elsewhere1 . It is a long, and you would think it a very dreary, story about the most specifically English of all our legal institutes; I mean the trust. All that I can say here is that the device of building a wall of trustees enabled us to construct bodies which were not technically corporations and which yet would be sufficiently protected from the assaults of individualistic theory. The personality of such bodies—so I should put it—though explicitly denied by lawyers, was on the whole pretty well recognised in practice. That something of this sort happened you might learn from one simple fact. For some time past we have had upon our statute book the term “unincorporate body.” Suppose that a Frenchman saw it, what would he say? “Unincorporate body: inanimate soul! No wonder your Prime Minister, who is a philosopher, finds it hard to talk English and talk law at the same time.”
One result of this was, so I fancy, that the speculative Englishman could not readily believe that in this quarter there was anything to be explored except some legal trickery unworthy of exploration. The lawyer assured him that it was so, and he saw around him great and ancient, flourishing and wealthy groups—the Inns of Court at their head—which, so the lawyer said, were not persons. To have cross-examined the lawyer over the bodiliness of his “unincorporate body” might have brought out some curious results; but such a course was hardly open to those who shared our wholesome English contempt for legal technique.
The Ultimate Moral Unit.—Well, I must finish; and yet perhaps I have not succeeded in raising just the question that I wanted to ask. Can I do that in two or three last sentences? It is a moral question, and therefore I will choose my hypothetical case from a region in which our moral sentiments are not likely to be perplexed by legal technique. My organised group shall be a sovereign state. Let us call it Nusquamia. Like many other sovereign states, it owes money, and I will suppose that you are one of its creditors. You are not receiving the expected interest and there is talk of repudiation. That being so, I believe that you will be, and indeed I think that you ought to be, indignant, morally, righteously indignant. Now the question that I want to raise is this: Who is it that really owes you money? Nusquamia. Granted, but can you convert the proposition that Nusquamia owes you money into a series of propositions imposing duties on certain human beings that are now in existence? The task will not be easy. Clearly you do not think that every Nusquamian owes you some aliquot share of the debt. No one thinks in that way. The debt of Venezuela is not owed by Fulano y Zutano and the rest of them. Nor, I think, shall we get much good out of the word “collectively,” which is the smudgiest word in the English language, for the largest “collection” of zeros is only zero. I do not wish to say that I have suggested an impossible task, and that the right-and-duty-bearing group must be for the philosopher an ultimate and unanalysable moral unit: as ultimate and unanalysable, I mean, as is the man. Only if that task can be performed, I think that in the interests of jurisprudence and of moral philosophy it is eminently worthy of circumspect performance. As to our national law, it has sound instincts, and muddles along with semi-personality and demi-semi-personality towards convenient conclusions. Still, I cannot think that Parliament’s timid treatment of the trade unions has been other than a warning, or that it was a brilliant day in our legal annals when the affairs of the Free Church of Scotland were brought before the House of Lords, and the dead hand fell with a resounding slap upon the living body. As to philosophy, that is no affair of mine. I speak with conscious ignorance and unfeigned humility; only of this I feel moderately sure, that those who are to tell us of the very nature of things and the very nature of persons will not be discharging their duties to the full unless they come to close terms with that triumphant fiction, if fiction it be, of which I have said in your view more than too much, and in my own view less than too little1 .
The Sidgwick Lecture for 1903, delivered at Newnham College.
The Standard, April 23, 1904. Mr Balfour: “The mere fact that funds can be used, or are principally used, for benefit purposes, is surely not of itself a sufficient reason for saying that trade unions, and trade unions alone, out of all the corporations in the country, commercial—” Sir R. Reid: “The trade unions are not corporations.” Mr Balfour: “I know; I am talking English, not law” (cheers and laughter.)
Professor Dicey’s lecture on the Combination Laws is printed in Harvard Law Review, xvii. 511. See p. 513.
Year Book, 21 Edw. IV, f. 68: “Come fuit ajudgé en le cas del Maior de Newcastle ou le Maior et le Cominalty fist un obligation a mesme le person que fuit Maior par son propre nosme, et pur ceo que il mesme fuit Maior, et ne puit faire obligation a luy mesme, il [=Pobligation] fuit tenus voide.”
Buckland, “Wardour Street Roman Law,” Law Quarterly Review, xvii, 179.
Lucas de Penna, cited in Gierke, Das deutsche Genossenschaftsrecht, iii, 371.
“Considérant qu’un État vraiment libre ne doit souffrir dans son sein aucune corporation, pas même celles qui, vouées à Penseignement public, ont bien mérité de la patrie.”
Maitland, “Trust und Korporation,” Wien, 1904 (from Grünhut’s Zeitschrift für das Privat- und Öffentliche-Recht, vol. xxxii). See below, p. 321.
In the following list will be found the titles of a few French books which (by way of historical retrospect or legal exposition or juristic speculation or political controversy) illustrate competing theories of legal personality and bring them into close relation with a recent and interesting chapter of French history, namely the campaign against the congrégations. Some of these works (see especially M. Michoud’s articles) will also serve as an introduction to German speculation.