Article I: General Matters

Physical and Moral Persons. I. Here on earth, all men and only men are capable of dominion and rights. Public authority can restrict this capacity on account of the common good.

II. Men, however, can be considered either as individuals or as several conspiring toward an end. From that very conspiring there arises a new unity, and therefore a new being, not indeed physical, but one which reason knows and which, through the various rights and offices consequent upon its constitution, enters the moral order. But insofar as this being is a subject of right, it also becomes, in the juridical sense, a true person, which is called juridical or moral.

The conspiring itself can have an origin either voluntary or necessary.

And we know that, by natural divine Providence, i.e. with nature as guide, it came to be that men coalesced into perfect societies of the temporal order, which from Nature itself borrow an inviolable existence and rights for pursuing their end. These are civil societies as such; they are also States, or political powers, independent from the citizens or members, and furnished with all rights which are necessary on account of the common good.

But within perfect Society itself, smaller societies are connaturally formed, whose origin must be referred to the free consent of citizens, not to political authority. Those which, on account of their end or means, are illicit or dangerous can be prohibited or destroyed by political authority; but, contrary to what the liberal school contended, they are neither created by the State nor do they obtain from the State the right of existing with necessary means. That right flows immediately from the very right of physical persons. Formal recognition of them can add protection and rights; but even before that recognition they exist as true persons. Yet because they can more easily than individual men become harmful, and because the faculty of providing for the common good cannot be renounced by the State, there is a more frequent cause and a more frequent use of prohibitions by which liberty of acting or possessing is contained within narrower limits for moral persons.

Historically, however, the laws which ordered the new affairs of France at the end of the eighteenth century were very hostile to societies which associated persons of the same art or profession, or intended a non-economic end; while, on the contrary, they began to favor greatly societies of things, or industrial and mercantile societies. But that intolerance toward personal societies, which hostile inclinations toward the Catholic Church and therefore toward religious Congregations nourished, could not endure for long; and, with unequal speed, for example under the name of syndicates, from the middle of the nineteenth century societies of persons began to be publicly recognized. At the same time lucrative societies have abused persons and things not a little; and now, increasing constantly in extension and wealth, they have become so powerful that they have seemed able to decide about war and peace and to make public authority itself subject to them.

Present civil laws. At present, for every association and destination of things to a special end, even philanthropic or religious, the laws of Holland, of the United States of North America, and of England are most convenient; corporate law has been developed most of all in Germany.

• Although the German Code, art. 21, for the juridical capacity of societies which do not pursue an economic end, requires only inscription in the register of the Amtsgericht (inferior tribunal), nevertheless by article 81 of the introductory law the laws of the States are confirmed by which the law alone can confer the same capacity on religious associations. The more liberal Code of Austria, art. 26, regularly confers on lawful societies the same rights by which singular persons enjoy. For the rest, the Codes of Latin law do not agree in this matter. After the Code of France, which seems completely to ignore juridical persons, the Codes of Spain, art. 35; of the Mexican republic, art. 39; of Portugal, art. 33, require the intervening authority of law in order that a moral person come to be; while the civil Code of Switzerland, art. 52, exempts ecclesiastical and family foundations, and all honorable associations which do not pursue gain as their end, from inscription in the commercial registers which is necessary for societies which have profit as their end, in order that they become juridical persons; and art. 54 sanctions the principle of the capacity of these persons. The Code of the Brazilian republic, art. 16, is content with inscription in the public registers in order that civil or religious associations be constituted and be moral persons. The recent Belgian law of 27 July 1921 now procures great facility for obtaining civil personality ¹, while France so arranged the law of 1 July 1901 on the liberty of associations that by force of that law very many religious were punished with exile.

It is helpful to compare briefly the liberal regime of Holland with the regime of France. In Holland, the juridical constitution of the Church is sanctioned by art. 168 of the Fundamental Law itself. But the law of 22 Apr. 1855 reserved to a special law the recognition of a moral person which wished to exist indefinitely or for at least thirty years; but below thirty years, royal approval of the statutes suffices, which can be denied only for reasons of the common good, to be expressed in the decree itself. Wherefore most associations are constituted by this more level way for 29 years and 11 months; when that space has elapsed, they are again confirmed. Thus religious houses exist civilly. But those ecclesiastical associations which pertain more intimately to the organic constitution of the Catholic Church borrow their juridical character from the law of 10 Sept. 1853. The laws of the Church and the ordinations of bishops concerning these associations obtain civil firmness as legitimate statutes. But as to capacity, moral persons of themselves are equated to physical persons; nevertheless they cannot have usufruct beyond 30 years, and certain of them, e.g. churches and religious institutions, need royal approval in order to accept legacies and donations. Cf. Duynstee, op. c., n. 25-40. - In France, however: a) undeclared associations are not a moral person; but alongside them a certain society, as existing in fact, has been admitted by judges; b) declared associations can receive no donation, no legacy, but only assessed contributions of members; c) associations instituted because of or on the occasion of the war, if they have been permitted, can receive, besides the contributions of members, also liberal gifts; d) associations which have been declared "publicly useful" (d'utilité publique) must be erected by decree; then they have full faculty of acquiring by gratuitous title; e) associations of religious congregations (congréganistes) are forbidden to exist without the authority of law. The law by which they are permitted defines in what way they must exist; f) syndical associations can freely have every kind of possessions and acquisitions ². - Recently also, as legitimate for ecclesiastical goods, there have been recognized diocesan associations, concerning which there is the encyclical letter of the Supreme Pontiff Maximam gravissimamque, 18 Jan. 1924. - We omit lucrative societies, which continue to enjoy protected liberty.

Therefore civil society still must be purified more fully of the errors of the liberals who contended: a) that moral persons can be created and suppressed by the State alone; b) that while everything which is not prohibited is lawful to physical persons, moral persons can do only what has been conceded to them; c) that associations which go beyond an economic end must be regarded as dangerous and suspect; d) that the goods of an extinct moral person can be usurped by the treasury.

Furthermore, of itself, not only by public power but also by private agreement, certain goods can be devoted to a definite end, for so long a time or in perpetuity, that that universality of things seems to imitate a person in some way.

Thus far concerning civil society. But religious society, or the Church, by the positive will of Christ its founder has been so constituted that all its rights, for dispensation, have been committed to Peter and his successors.

Hence, independently of the members of the Church, the Church and the Holy See, from the divine ordination itself, have the character of a moral person (c. 100, § 1); while the rights of lesser societies in the Church exist dependently upon hierarchical power. Moreover this dependence can assume various forms, so that it can be more or less open and explicit. But the discipline of today, by force of c. 100, § 1, is that "the other inferior moral persons in the Church receive that [character of a moral person] either from the prescription of the law itself or from a special concession of the competent ecclesiastical Superior given by formal decree for a religious or charitable end."

By the prescription of the law itself religious Institutes and religious houses are persons.

Canonical law distinguishes collegiate moral persons (or persons composed of persons) and non-collegiate ones, such as benefices and universals of things applied to a definite end.

Nothing further would have to be said in this chapter, unless the peculiar condition of certain persons, of itself or by positive law, gave place to a peculiar regime which affects the capacity of acquiring and disposing. They are children under family power, wives, clerics, and religious. But the cause of the peculiar regime is one thing for the first two classes of persons, another for the latter two.

¹ Loi sur les associations sans but lucratif. Cf. on that law the annotations of R. D. Ferdinand Claeys Bouuaert^†.

² Cf. Colin and Capitant, I, p. 953.