The societas publicanorum and corporate personality in roman private law

ABSTRACT

This article demonstrates the often-repeated modern claim that the societas publicanorum had the corporate personality of a joint-stock company with tradeable shares lacks grounding in commercial context and Roman private law. After reviewing the concept of corporate personality and the historical evolution of the Roman societas, the discussion traces the claim of joint-stock personality to unsupported interpretations of the sources, especially In Vatinium [29], by 19th century philologists. An alternative more plausible commercial and legal explanation for the corporate personality of the societas publicanorum is provided by an organisation of Roman tax farming that employed a societas maior connecting a network of societates and familias.

KEYWORDS:

• Publicani
• societas publicanorum
• Roman tax farming
• partnership law

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 In addition to members of the Senate, relevant political positions were aedile, tribune, quaestor, praetor, censor and consul. The highest but temporary political position of dictator was not filled during an important period of soc.pub. influence from the second Punic war until Sulla was elected dictator in 82/81.

2 Strong (1968, p. 97) identifies the first recorded locatio (contract of lease and hire) for building the walls of Rome in 377, though Astin (1990) and others mention a contract for feeding the sacred geese which would have been earlier. There were large contracts for building roads and aqueducts in 312.

3 Translating Fleckner (2010, p. 215): ‘The societas publicanorum was a special form of the ordinary societas which chiefly differed with respect to objectives (public contracts), structure (heterogenous with main- and sub-participants) and function (location-wise and time-wise far-reaching, but objective-wise limited). Otherwise, in their fundamental form, most societas publicanorum were essentially like the societas. Especially, it appears that they were subject to the same legal regime, and that often they were not much bigger.’

4 The exhaustive treatment by Duff (1938, p. 26-34) concludes about Roman law: ‘From all [the] evidence, it appears that corpus is never a technical term meaning “a corporate body”’. Berger (1953, p. 417) defines corpus as a general term that could, when referring to ‘a union of ­persons’, be synonymous with collegium or ‘corporate body’, but can take other meanings depending on context.

5 For example, a modern business corporation has the power to: ‘establish pension plans, profit sharing plans, share option plans, and benefit or incentive plans.’ Many such items would be inapplicable to corporations from a previous era where employee pensions or executive stock options had not yet evolved. Similarly, there were powers that applied to the Romans and not the modern era, such as the right of manumission.

6 For example, Digest [39.4.1] states ‘all those who lease anything from the imperial treasury are correctly described as publicani’. The actions of paying vectigal to the treasury and collecting tribute are specifically identified. Digest [13.4.13] also observes: ‘people who have saltworks, chalk-pits and mines also count as publicani’. The role of publicani during the Republic supplying the army or constructing public works receive no mention in the legal sources.

7 Fleckner (2010) provides an authoritative and detailed examination of the three legal forms available to ‘Roman businessmen’: societas, peculium and soc.pub. Various authorities observe such arrangements did not dominate aggregate economic activity, eg Frank (1927). Much of the Roman Republic economy had an agrarian basis structured around ownership of productive resources in control of land-owning families, typically headed by a pater familias.

8 This would be problematic when the ‘household property’ was difficult to divide. As such, difference in the source of assets associated with the societas is a substantive point of demarcation between the ercto non cito and omnium bonorum form of societas. As Watson (1984, p. 15) observes about the early Roman societas: ‘the primary type of consensual partnership was not a commercial arrangement between merchants – they would want a much more restricted partnership – but between close relatives and friends, probably wishing to engage in a communal agricultural enterprise’.

9 As Cottier et al. (2008, p. 7) document, Roman public law traditionally assigned the establishment of terms for contracting and the sale or lease at auction of public revenues and properties to the censores. However, other magistrates such as the praetor did at times undertake these duties for differing reasons. The early example of a censorial contract for feeding the sacred geese that alerted defenders of the Citadel about invading Gauls in 390 BC appears in a story from Livy [5 47].

10 As illustrated in Brunt (1956), vectigalia can refer to differing sources of state revenue, depending on the context. Typically, vectigalia refers to ‘dues levied on ager publicus’; and, in other cases to: ‘all regular and ordinary sources of Roman revenue, as distinct from the extraordinary tributum’ (Smith, Wayte, & Marindin, 1890), though Digest [39.4.1] does mention the collection of tribute by the publicani. As such, vectigalia usually refers to the decumae (the tithe, a fixed percentage of crops) and the scriptura (grazing fees). Additional Roman state revenues that the publicani could collect were rents for houses on public land (solarium), sale of timber on public land (vectigal picariarum), revenue from salt works (salinae) and revenue from mines (metalla). Other than the decumae and scriptura, the most important revenue source collected by the publicani was customs duty (portorium).

11 Of Achaean Greek origin, there is only ‘scanty and ambiguous’ evidence (Epstein 1992) about the birth and death dates for Polybius (c. 208‒c. 125).

12 The precise dating for the commencement of revenue collection by the publicani in Asia may, or may not, have preceded the reforms of C. Gracchus. Badian (1972, p. 63) claims 131 as the beginning, while Kay (2014, p. 61–4) follows Appian in recognising the lex Sempronia for Asia as the beginning. Mommsen (1901, p. 342–61) provides an insightful treatment of the connection between C. Gracchus and the rise of the equites.

13 As Kay (2014, p. 191) observes: ‘the source evidence for wealth creation in the Roman world during the Republican period comes from the years 70 to 40, thanks to the Ciceronian corpus, in particular his letters, and that no equivalent source is available’.

14 Scramuzza (1937) provides further background on the publican societates in Sicily. On Roman tax-farming and revenue raising practices in other areas see Hill (1946) and Richardson (1976). On the interesting relationship with previous tax-farming practices in Ptolemaic Egypt, Harper (1934) is still useful.

15 Akzien is an obscure German term in use at Orelli’s time to refer to traded shares. Aktien is more recent terminology.

16 As detailed by Gelderblom, de Jong, and Jonker (2011), historical accuracy requires a distinction to be made between the VOC and the English joint-stock and regulated companies. Unlike the English joint-stock companies, the VOC and Dutch West India Company were rooted in a different legal tradition than that associated with corporate personality for English companies. The ‘ad hoc’ variant of the English joint-stock company is detailed in Scott (1910), Harris (2000) and Freeman, Pearson, and Taylor (2012). See also the discussion in Duff (1938, esp. p. 149).

17 Grounds for granting a charter, as well as conditions detailed in the charter, differed. For many English companies, the charter was granted for a set time in exchange for a substantial consideration to the Crown, with stipulations in the charter requiring some additional services to the Crown. The charter for the VOC involved the amalgamation of existing companies to further the interests of the Dutch republic. The VOC required the capital stock to be ‘permanent’ for a period of 10 years by restricting the ability to pay dividends to shareholders during that period. To account for the difficulties this would pose for raising capital, the charter of the VOC contained explicit conditions for the transfer of shares that created the appropriate legal environment for the first exchange trading of company shares.

18 Observing that private partnerships, as consensual contracts, could be formed at will, difficulties with Digest [3.4.1] are apparent from the first sentence. Debate surrounding resolution of this important fragment during the 19th and early 20th century included: Cohn, Zum römischen Vereinsrecht (1873); Waltzing, Corporations professionnelles (1896); Kniep (1896); and, Mitteis Römisches Privatrecht (1908). Duff (1938, p. 141–53) reviews the debate and suggests the following translation for the first sentence: ‘Neither a partnership nor a college nor any other body of the kind is freely allowed in all cases to have corporate capacity (or a corporation).’ Fleckner (2010) provides a detailed account of Digest [3.4.1] and the early German contributions by Cohn and Mitteis reaching the conclusion: ‘with a probability bordering on certainty … the dominant opinion that the societas publicanorum could have a personality structure and independent assets is contradicted’ (p. 410–11).

19 In translating the Customs Law to Latin, Cottier et al. refer to the individual securing the contract to farm the taxes as the publicanus while legal sources and modern discussion going back to Kniep (1896) use the alternative term manceps (entrepreneur).

20 The epigraph of the Customs Law of Asia is in Greek and Cottier et al. (2008, p. 67) uses the Greek tele (telos) for ‘customs’ or ‘tariffs’ (Latin portoriis); alternatively tele can be translated as ‘port duty’ or ‘dues extracted by the state’, eg Fleckner (2010, p. 206). Duncan-Jones (2006) provides useful background on Roman customs practices. The aerarium was the public treasury. Related to the aerarium is the fiscus, a term that usually referred to the private wealth of an individual (Republic) or the Emperor (Empire) but could also refer to a ‘chest’ where the public monies were held. Because the private wealth of the Emperor was responsible for state activities during the Empire, fiscus could also refer to the imperial treasury, eg Brunt (1966).

21 Whether some or all praedes were socii is not a certainty. Fleckner (2010, p. 186) recognises: ‘umfangreiche sachliche und persönliche Sicherheiten (praedia und praedes) geleistet warden mußteni’ (extensive material and personal guarantees (praedia and praedes) had to be provided). Following a discussion on p. 206 Fleckner concludes it ‘is a little more likely that socii and praedes are indeed the same persons’ (‘ein wenig wahrscheinlicher, daß socii praedes tatsächlich dieselben Personen sind’).

22 Commercial organisation involving a network of inter-locking partnerships appears in one of the earliest, almost complete, set of business records surviving from the Renaissance for Francesco Datini, ‘The Merchant of Prato’ (Origo, 1957). This network of partnerships had no trading of shares. Earlier instances of a partnership network also appear in notarial records from the middle of the 12th century in Genoa, albeit in the context of seaborne trade (Poitras, 2016, ch.5).