In the middle ages 231

conceive of a collective soul, — a reality distinct

from the individuals — in these associations, whose

purposes were plainly commercial and industrial.

Similarly, the parish churches and the monasteries

and the universal Church had not been regarded by

the canonists as real entities, as beings distinct from

the members who compose them. Innocent IV,

who had the name of being an eminent jurist, is the

first who would have spoken of the corporation as

a ''persona ficta" a fictitious person — an excellent

formula, which is not found in the Digest of Jus-

tinian, but which expresses admirably the thought

of the thirteenth century. Gierke calls him the

"father of the fictitious person theory."" There-

after the corporation is definitely no thing-in-itself ,

no living organism, in the real sense of the word,

since it has neither intelligence nor will. The can-

onists, indeed, declare that it cannot commit crime

or misdemeanour of any kind; hence a political

group as such need not fear hell or wrath to come.

Nor do the mediaeval lawyers conceive otherwise

of the state-corporation. In the same manner they

explain the artificial personality of the kingdom or

of the empire. The state (universitas) is the col-

lective mass of individual men, who constitute the

populus; and its functions, — says the author of a

10 otto von Gierke, Die Staats- und Korporations- lehre des Alter-

tums und des Mittelalters und ihre Aufnahme in Deutschland, Ber-

lin, 1881, p. 279, n. 103: "cum collegium in causa universitatis finga-

tur una persona" (Innocent IV).

232 PHILOSOPHY AND CIVILIZATION

treatise De Aequitate which is ascribed to Irnerius,

— is to care for the individual men who are its

members." Likewise, the society of states is con-

sidered by Dante as a grouping of individuals, a

respuhlica liumana rather than as a group of gov-

ernments. The universal monarch is the servant of

all, minister omnium, precisely as the Pope is the

servant of the servants of God. He wills the wel-

fare of each man; he is nearer to each citizen than

is any particular sovereign. ^^ And in the four-

teenth century Baldus writes: "Imperium non

hahet animum, ergo non habet velle nee nolle quia

animi sunt"^^

Does this conception of the state (as being no

entity outside of the members who constitute it)

really represent a failure^* of the mediaeval jurists

and canonists? Is it not rather the triumph of

good sense and healthy thinking of men who were

seeking loyally for truth and not for originality?

1/ Personally I do not believe that the state is a real

being, a real substance outside of its citizens, and

I agree with Paul Bourget in one of his latest novels

{JLe Sens de la Mort) , when he places in the mouth

11 Irnerius, De Aequitate, 2: universitas, id est populus, hoc habet

officium, singulis scilicet hominibus quasi membris providere. Cf.

Carlyle, o'p. cit., vol. II, p, 57.

12 De Monarchia, I. Cf. above, ch. V, 111.

13 Cited by Gierke, Political Theories of the Middle Ages, (English

translation by Maitland), Cambridge, 1900, p. 70. This translation is

only a small part of Gierke's work cited above.

"Gierke, Ibid.