CHAPTER VIII. CHARITIES

A citizen of the Roman Republic or the pagan Empire who wished to found or to endow a hospital, an alms­house, or a school, could only do so by indirect means.

The obligation thus created seems not to have been very exactly defined, and changed with the gradual development of what was ultimately called ‘modus'.3 This is a request

¹ For a large collection of Inscriptions, with some other non-juristic texts, see B. Laum, Stiftungen in der Griechischen und Römischen Antike, vol. ii, 1914; and for references to the Corpus Iuris, Pernice, Labeo, 3. 1, pp. 56ff., i;ofF.

¹ See pp.

3       For a full discussion of this process, see Pemice, loc. cit. pp. 32 ff.

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169 or command (iussum, lex) to the recipient of a gift or legacy which can by some means be enforced, although its non­fulfilment does not, like that of a true condition, auto­matically avoid the gift. It differs from a fideicommissum in wording,¹ iubeo facere or do ut facias being used instead of volo_i rogo, peto, or fidei committo, and cannot be enforced by an action on the part of any ultimate beneficiary. The praetor early protected legacies of this kind by refusing to admit an action claiming the legacy, or by giving an exceptio doli to the heres, unless the legatee would give security, not, as by the cautio Muciana, to restore the legacy on breach of a condition, but actually to carry out the charge imposed.³ It was also possible to invoke the ad­ministrative coercitio of the praetor, the curator reipublicae, or the Emperor; and it was not uncommon^ to provide that in case of failure a fine should be paid to the fiscus, the town, a temple, or some other public body which could apply administrative pressure without having to face in the ordinary courts the ban of the private law on poenae nomine legata.

The recognition of Christianity by Constantine opened the way for fresh developments. Hitherto the Church must have appeared to the private law as a collection of unauthorised and therefore illegal colleges. No Christian body could seek authorisation as a collegium cultorum, unless indeed under the benevolent neutrality of a Philippus Arabs. There may have been a few ingenious and devout congregations who united in the pursuit of a single trade, like the castes of India and especially the Thugs, an interesting sect with a strong resemblance to the early Roman idea of Christians and no doubt if their trade was harmless and the district peaceful and free from such factions as those of Nicomedia, and if they kept their religion out of sight, they could obtain authorisation as

¹ Lac.

⁴ Tacitus clearly believed {Ann. 15. 44) the charges of incest, child­murder and cannibalism that we hear of from Tertullian and others. a collegium opificum. But we have no evidence for anything of the kind, and it must at any rate have been rare. Other­wise their only course was to form themselves into burial clubs, collegia tenuiorum, under the general authorisation of the senatusconsult preserved for us at Lanuvium and by Marcian.¹ But the senatusconsult made the recognition of such colleges depend on their not meeting more than once a month, and all Christian communities met, religionis causa, at least once a week. How far a college which had broken the condition of its charter could have a good title to property is a nice point. It might appear that if a college may not be, neither may it have. But on the other hand, we have no reason to suppose that a burial club which broke this rule, as many did on occasion,^{[172] [173] [174]} automatically ceased to exist; more probably it only ren­dered itself liable to dissolution by the local officials. Now a man who commits a capital crime does not ipso facto cease to own his property, nor are all the acts of a freedman likely to have been annulled by revocatio in servitutem·^ and it is reasonable to suppose that a law-breaking college might nevertheless have a good, if precarious, title to property. But its ownership was conditioned by the in­convenient fact that the authorities might at any moment dissolve the community and confiscate its property.^[175]

The coming of Constantine and toleration made a funda­mental change. The celebrated Edict of Milan in 313 fully recognises the proprietary rights of the Church or the churches, retrospectively as well as for the future.

For Schnorr von Carolsfeld (pp. 244-57) the question does not arise. He believes, in spite of D. 47. 22. 1. pr. and 3. 1, that no collegia needed any authorisation. Hence the Christians had no occasion to disguise their churches as collegia tenuiorum. If their assemblies were unlawful, as Tertullian seems to admit (see p. 115, n. 1, supra), that is because they met for an unlawful purpose, the practice of a religion always suspected and sometimes pro­scribed. But if I understand him rightly, Schnorr von Carolsfeld would accept the last sentence of the paragraph above.

¹ Lactantius, De mortibus persecutorum, 48; translated into Greek, Eusebius, Hist.

³ Cf. Schnorr von Carolsfeld, pp. 168-73.

⁴               Ibid. p. 168: ‘Der Kirche standen ja die vorhandenen Formen des Rechtes zur Verfügung.’

172 must suppose that a pagan lawyer would describe what had happened as the authorisation by the Emperor of a great number of collegia which had previously been unauthorised and illicit.¹ Since they enjoyed the imperial favour, there could be no doubt of their sharing the privileges, without being bound by the restrictions, of the old collegia tenuiorum·, and every Christian, that is to say orthodox, congregation must have been recognised by the courts as able to own, to sue, to manumit slaves and take legacies, and to meet whether for worship or for the collection of money as often as they liked.

One thing they lacked, the right to be instituted heres in a Roman will. This the collegia had never had, unless as an exceptional privilege.^{[176] [177] [178]} Some pagan gods had it,3 but the property they inherited seems to have been thought of as belonging to their State, though it was, as we should say, impressed with a trust. The gods so honoured were mainly the patron deities of conquered towns and countries, Jupiter Tarpeius, or Capitolinus, being the only resident

Roman god who appears in Ulpian’s list. But Constantine was content with no half-measures in his gratitude to the Author of his victories, and his famous law of 321 gives the Christians all they could wish for in respect of inheri­tance.

After this change the duty of a charitable Christian— and before long the bulk of charitable people were Christians—was clear and unequivocal. He could and should give his property to the Church,³ and either trust the Church authorities to spend it as they thought best, or ask that it might be devoted to the particular causes he had at heart. Accordingly, through the next century, on which the legal texts are dumb, the Church must have built many charitable institutions—hospitals, orphanages, almshouses and the like—and endowed many funds for the relief of the poor and the ransom of captives. These ecclesiastical establishments came to be regarded as capable themselves of directly receiving gifts and legacies; and finally we meet in the law of Justinian a number of inde­pendent Houses, over which the Church had no control unless the lay managers misconducted themselves. It is with the position of these various institutions and funds under the private law that the remaining pages of this chapter are concerned.

¹ C. Th. 16. 2.4. Gothofredus, adloc. (ed. 1743, tom. vi,pp. 26—9), says this absolute use of catholica, with ellipse of ecclesia or perhaps religio or fides, is common in the Fathers. He points out that relinquere must refer to institution here, since legacy was already allowed. He also emphasises the universality of the rule—habeat unusquisque licentiam. Valentinian I forbade individual clergy to receive gifts from women, except relations (C. Th. 16. 2. 20), and for part of the year 390 deaconesses were not allowed to institute the church (h. t. 27, 28). Constantine makes no exceptions.

’For examples, see Oxy. Pap. xvi. 1901 (sixth century) and J ean Maspero’s catalogue of Byzantine Papyri at Cairo, vol. n, no. 67151, the well-known will of Phoibammon (a.d. 570).

We must first face the question, postponed above, of the Church’s own legal position. In what person or persons, physical or juristic, resided the dominium of the churches themselves and of the property and institutions given to or set up by the churches or the Church? We cannot expect a very clear-cut answer, since the Church was recognised by the Byzantine Emperors to be in many respects above and outside the private law, but some historical explanation of what may have been thought on the subject is necessary. The story may perhaps be roughly summed up by saying that the Church was originally a number of ordinary sodalicia and became an extraordinary sodalitas.¹ We have seen that before Constantine at least three Christian services out of four infringed the rules against unlawful assemblies, and endangered the churches’ corporate existence. But it is clear that Christian com­munities were in practice allowed, except in times of persecution, the possession and enjoyment of church buildings and land, which were regarded as the property not of individuals but of the congregation, the parish or diocese, as a body.^{[179] [180]} The favour of Constantine changed the congregations from collegia illicita to collegia licita^ and transformed their precarious possession to lawful and secure ownership; but collegia they remained.

Gradually, however, as the Church grew in numbers and in centralised organisation, this conception became more and more strained. It was probably felt to be anomalous for the Catholic Church to appear in any respect as a mere plurality of isolated bodies; and a college the size of a diocese was by old standards a monstrosity. A certain abstract unity was attained by attributing the ownership of all Church property either to God Himself¹ (the old pagan gods having nominally owned property in the past, as the idols of India do to-day’), or to His Body the Church as a mystical Person. But this could not satisfy lawyers: as Maitland says, * persons who can never be in the wrong are useless in a court of law’.3 Therefore a more practical arrangement was sought and found by magnifying the office of the bishop and modelling each diocese, not on the old colleges, but on the Empire. A ‘haughty prelate’ such as Basil of Caesarea might almost have claimed that he was owner of all Church property in his diocese, as Caesar of all fiscal property in the Empire. Certainly the bishops had very wide powers of administration. They and their nominees, the oeconomi^ were forbidden to alienate the land, serfs, and annonae civiles of the church,5 or the sacred vessels and vestments,

¹ Testators sometimes instituted Christ as heir, C. 1. 2. 25. pr.; Nov. 13 r. 9. pr.

¹ Pramatha Nath Mullick v. Pradyumna Kumar Mullick (1925) L.R. 52 Ind. App. 245. See Duff, ‘The Personality of an Idol’, in Cambridge Law Journal, 1927, p. 42.  ³ Collected Papers, vol. m, p. 225.

4       C. 1. 3. 32.4: ‘quern dispensatorem pauperum, idest oeconomum ecclesiae, episcopi tractatus elegerip. Cf. Oxy. Pap. xvi. 1900 (a.d. 528), where a receipt is addressed to the cathedral church under the bishop of Oxyrhynchus through Phib the oIkov6ho$. Cf. also xvi. 1894 (upovor)T^s), 1898 (oIko- v6uo$ of a voaoKopsiov), 1993; and Maspero’s Cairo Papyri, vol. 11, p. 94, no. 67151, 1. 147.

5       C. r. 2.14. pr.; N. 7.1; N. 5 5; N. 120. i. pr. Annona civilis (iroXi-nict)

is a transferable right to share in the doles of com which were distributed at Constantinople, Rome, and Alexandria. See C. 11. 25; also 11. 23, 24 and 28.

I76 except to ransom prisoners of war.¹ But this very pro­hibition implies that if anything could be alienated, it was the bishops who would carry out the transaction. It is moreover significant that the rule applied not only to what had been given to the church, but to all property acquired in any way by the bishop after his consecration except from near relations ;^{[181] [182] [183]} whether the church’s property belongs to the bishop or not, the bishop’s belongs to the church, and, with the exception referred to, the law could not distinguish between res ecclesiae and res episcopi. In actual practice we find the bishop allowed very wide powers of acting as the paterfamilias of his diocese. He and his assistants the oeconomi can make contracts for the churchy mutuum,^[184] for instance, locatiof and hypothecaf can sue;? can grant a usufruct,^[185] or, under strict but often changed conditions, an emphyteusis;^[186] and can sometimes even alienate Church lands^{[187] [188] [189]} and, as we said above, sacred vessels and vestments.¹¹ In facta bishop has as complete control of Church property as many domini had of their own ;^IZ but there is, of course, a fiduciary element in his position. He holds the property in trust, if the word may be used untechnically, for God and His Church on the one hand, and for the people, especially the poor, of his own diocese on the other. But the corporateness of the congregation

has receded out of sight; the bishop is more like a servus dei, whose diocese is his peculium, with the oeconomi as vicarii, than like the magister quinquennalis of a free and self-governing college. The law was satisfied with the safeguards imposed, and no Christian Emperor would interfere gratuitously with a change in ecclesiastical organi­sation which must damp any remaining sparks of demo­cratic independence and make men more submissive to all authority, including his own. It is true that some property was appropriated to individual churches or parishes, as we shall see it was to particular monasteries and foundations. Thus the institution as heres of Christ or a saint was construed as a gift to the local church, or the nearest and poorest church dedicated to that saint.¹ But the ordinary unit seems to have been the diocese, the usual administrators, except in monastic houses, the bishop and the oeconomi, who must have stood to him much as the procurators fisci did to the Emperor. Thus when Justinian says a thing belongs to the Church, we must understand him to mean that in the language of piety it is given in ownership to God, and in the reality of commerce and private law it is normally at the disposal of the diocesan bishop. And the legal ideas which have contributed to bring this about are a development of colleges, an analogy from pagan res sacrae, and an analogy from the imperial fiscus²

Such was the position at private law of Church property; and to the Church belonged many, probably most, of the establishments and funds which we may group together as ‘charitable foundations’, and roughly define as property devoted to the eternal welfare of the founder and the temporal good of the sick and needy.3 The group is

¹ C. 1. 2. 25; N. 131. 9. Cf. Herman, Benefizialtvesen, p. 255.

¹ Schnorr von Carolsfeld (p. 20) quotes these two sentences from my Charitable Foundations, p. 89, as opposed to his view. I cannot approve his use of the term Anstalt or his assertion that the ‘ Anstaltsbegriff’ meets us in Justinian; see p. 174, n. 1, supra.. But in other respects we seem to agree fairly closely.            3 Cf. C. 1. 3. 41. 27.

178 large, and not sharply defined; we may perhaps exclude the churches themselves, but they and the oratoria¹ are sometimes mentioned, monasteria very often and asceteria^{[190] [191] [192] [193]} occasionally, in the lists of such foundations. All these are certainly included in the usual generic name of εναγείς οίκοι,3 venerabiles domus, which also covers the xenon or xenodochium, ‘ locus venerabilis in quo peregrini suscipiuntur' the ptochium or ptochotrophium., 'in quo pauperes et infirmi homines pascuntur'; the nosocomium, 'in quo aegroti homines curantur'·, the orphanotrophium, 'in quo parentibus orbati pueri pascuntur'; the gerontocomium, 'in quo pauperes et propter senectutem solam infirmi homines curantur'; and the brephotrophium, 'in quo infantes aluntur'. They are not divided by hard and fast lines. Thus we find a xenon where we should expect a ptochium in C. 1. 3. 48. 3, 5, 6, and where we should expect a nosocomium in Maspero’s Cairo Papyri, vol. 11, no. 67151, 1. 183. Much the same rules applied to all classes, and there was no need to distinguish sharply between them.

We do not learn many details about these Houses from the Corpus luris·, the Fathers might yield something to a diligent search. There seems to have been only one

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179 orphanotrophium at Constantinople.¹ It was believed by Leo to have been founded by one Zoticus,² and was in his own day, with other Houses, placed under the charge of a priest called Nicon.3 Under Justinian the principal House seems to have been a xenon called after Sampson, its founder,^{[194] [195] [196]} and then governed, together with another xenon of Justinian’s own founding, by a deacon named Eugenius.5 Procopius tells us that Sampson’s xenon was destroyed in the Nika riots and magnificently restored and endowed by Justinian, who also founded two new xenones near S. Sophia,^{[197] [198]} and others, for travellers visiting Constantinople, near the sea-shore?

But these Houses do not exhaust the list of Byzantine charities; there were also special funds devoted to the relief of the poor other than inmates of ptochia^ and to the ransoming of captives.^{[199] [200]} These funds obviously cannot be called οίκοι, and there is no technical or nearly technical name that covers both them and the other institutions. The phrase 'piae causae' (ευσεβείς αίτίαι), which after­wards became common, seems to occur only in some ten passages of the Corpus luris^ and can always be translated ‘pious motives’, ‘pious purposes’, or ‘pious objects’. Equally common and perhaps more nearly technical is ευσεβής (ευαγής) πραξις, ‘a pious work’.^[201] But the dif­ferent kinds of charitable foundation are not really brought together as a category; under Justinian we are back in an age that finds it easier to enumerate than to generalise.

About the administration of these ecclesiastical founda- I8O tions we do not know very much: the texts are many and long, but very diffuse and loosely worded. Every monastery has a single abbot (fjyoiipEvos),¹ and the other Houses are governed by a xenodochus, ptochotrophus, nosocomus, orphanotrophus, gerontocomus, or brephotrophus. We also meet an officer called î £òã³ Tfj$ òããñîõŲà$,^ã who presumably governs the ptochium, where there is one, and administers outdoor relief. There seems no special name for a ransomer of captives. Under the Principal, sometimes called 81- î³êã)òã)$ or irpoEOTcbj, is a staff, the urroupyouvTE$, AsiToup- youvTES, who also seem to be sometimes called 8³î³êò)òà³, with a Byzantine disregard for exact terminology.3 There are also oeconomi, who may be either the bursars, stewards, of the Houses, or diocesan officials representing the bishop; and chartularii or scribes. We see the whole machine at work in two and only two legal texts, C. I. 2. 17. 2, of which we have only a corrupt summary, and N. 120. 5, 6. They deal with the formalities required by Anastasius and Justinian respectively for the sale, mortgage, exchange, emphyteusis, or long lease, of land belonging to an impoverished New Roman">Procop. de Aedif. 1. 2. 15—17.

See especially C. 1. 3. 48.

¹                                                                                                                    C. i. 3. 39. ³ C. i. 3. 41. 20, 23.

³               Cf. N. 120. 6. i. We find both òòðîåàòñîòÅ; and î³êîóáöî¿ at a monastery in a.d. 334; H. I. Bell, Jews and Christians in Egypt, p. 49.

⁴               N. 120. 6. 2. In Maspero’s Cairo Papyri, vol. 11, no. 67168, the monks

make a contract, and in no. 67170 (a.d. 564) they contract through the Abbot.         ⁵ N. 120. 6. i.

classes, those whose affairs are controlled by the bishop either in person or through his clergy, and those which have a separate management (Ιδίαν διοίκησιν), although the staff are appointed by the bishop, and the Houses therefore not really independent. In the first class, the bishop decides whether to make the contract or not, and the oeconomi, διοικηταί, and chartularii take the oath. In the second, for εύκτήριοι οίκοι, churches and ora­tories, the decision rests with the oeconomus and the majority of the clergy; for other ευαγείς οίκοι, the προεστώς makes the contract and the διοικηταί take the oath in the presence of the bishop. The provisions of C. 1.2. 17. 2 seem to have been very similar, but that law does not refer at all to the specially episcopal Houses; and the consent of the bishop, which seems to be expressed or implied throughout the Novel, is here only required in places (τόποι, which may mean districts or Houses) where this extra precaution is usual (έν οΐς τοΰτο σύνηθες έπιγίν- εσθαι). The only other difference of interest is that Anastasius appears to give the pauper inmates a voice in the affairs of the ptochia: παρόντων... έπΐ δέ των πτωχείων του διοικητοϋ καί των ύπουργούντων καί των πτωχών... ώστε κρατεΐν τό τοϊς πλείοσιν άρέσκον. But it seems less likely that the almsmen should have had such a voice than that the epitomator, whose grammar at this point is very queer,¹ should have confused the rules. No doubt the other bodies he refers to in this sentence had to decide, and by a majority vote; but if the πτωχοί were mentioned at all, it was probably only said that they must be present at the ceremony.

We know more about the privileges of the foundations than about their administration. They were regarded with deference by the Christian Emperors, and especially by Justinian, and were given preferential treatment in several departments of public and private law. Of their immunities

¹ We can only construe by making έττί δέ των μοναστηρίων. ...μοναχούς a very awkward parenthesis.

i82 from taxation, we need only mention that they were exempt from all ‘sordid and extraordinary’ munera? though not from road-making and bridge-building; and that the restrictions on gifts by the jealously preserved but always shrinking class of curiales were waived in their favour.²

Their most notable privilege under the private law was in respect of usucapion or prescription. In 5303 (and again in 535 for the Church of Rome⁴) the period of prescription was extended retrospectively to a hundred years, the life­time of a long-lived man, an injustice which roused the secret anger of Procopius ;5 and though this rule was soon abrogated, the foundations were to the end of Justinian’s reign allowed forty years to reclaim their mislaid pro­perty.⁶

Other privileges concerned gifts, both inter vivos and by legacy. Thus we read in C. 1.2.19 that gifts to a church, a charitable institution, the poor, or a city, were valid without registration up to a limit of five hundred solidi? at a time when all other unregistered gifts, except ante nuptias or mortis causa, seem to have been invalid whatever their amount.⁸ And for churches and charities only there survived the double liability on denial which applied in classical law to legacies/>color=black face="Times New Roman">2               C. 1. 2. 14. pr.; N. 7. 1; N. 55; N. 120. 1. pr.

³               Except to ransom captives, C. 1. 2. 21; N. 7. 8; N. 120. 10, which also allows the sale of surplus vessels to pay debts.

⁴               C. 1. 3. 45. 9-15; C. 1. 3. 55; N. 131. 12. 2.

⁵               C. 1. 2.17.1; C. 1. 2. 24.5; N. 7. 3; N. 55. 2; N. 120.1. pr., 1, 2; N. 120. 6. 1, 2. The tenure called παροικικόν δίκαιον was wholly for­bidden, C. 1. 2. 24. pr.; N. 7. pr. 1; N. 120. 1. pr.

⁶               C. 1. 2. 17. 1; N. 120. 4; N. 120. 6. 2.

⁷               N. 120. 3. C. 1. 2. 24. 4 probably fixed a limit of twenty years for leases by, not as in the epitome to, the church.

⁸               C. 1. 2. 14. 9; N. 120. 2; N. 120. 9. i.

⁹                                                                                                                                             N. 65. pr.      ¹⁰ C. 1. 3. 48. 3.

¹¹ ‘Les “Piae Causae” dans le droit de Justinien’, Milanges Girardin, 1907, pp. 513-51. See especially pp. 526-34.

Houses were so regarded seems clear; the texts which speak of them as receiving gifts, alienating (or being forbidden to alienate), contracting, suing, and the like are too many to quote.¹ They are expressly said to own property;³ they are contrasted as legal entities with the diocesan church;³ and more than once placed on a par with towns,⁴ whose ownership was quite independent and unrestricted. But we can go farther than this semi­independence. The age of Justinian, with the Empire breaking up and the barbarians well inside the gates, was not an age of uniformity; and we need not refuse credence to the texts which tell us that there were not only founda­tions directly governed by bishops, and others managed independently by their nominees,³ but also foundations over which the bishop had in normal circumstances no control at all. This we learn chiefly from a long law of the Code and a very long Novel.⁶ These tell us quite explicitly that a testator who leaves property to charity may appoint trustees to administer it, and that the bishop can only interfere if they fail after two warnings to carry out their trust.? Both laws extend to foundations of all kinds, including the relief of the poor and the ransom of captives, for which the same rule is laid down by C. 1. 3. 28. pr., 1, and perhaps, though ambiguously, by C. 1. 3. 48.7. The general rule is obscurely foreshadowed by Zeno in C. 1. 2. 15. 3, and these independent Houses seem to have been dealt with in C. 1. 2. 17. 2. The right of super­vision, though it cannot be excluded,⁸ no more makes the bishop owner than it makes the English Charity Com­missioners owners of all English Charities; it is significant

¹ See reff. on pp. 176, 183, supra, and especially Novels 7, 120, 131 passim.

¹ E.g. C. 1. 3. 41. 12.                        3 C. 1. 3. 34. 1.

4       lang=EN-US>C. 1. 2. 19; C. r. 2. 23. pr., 3.

5                                                                   Cf. p. 181, supra.           ⁶ C. 1. 3. 45; N. 131.

7 C. 1. 3. 45. pr., 3, 3a, 7, 8; N. 131. 10, 1 r, 12. The testators who tried to exclude the bishops altogether (N. 131. 11. 2) would probably appoint lay trustees.        ⁸ N. 131. 11. 2.

CHARITIES

I85 that the bishop is coupled with the civil magistrate,¹ and that exactly as the conduct of the heirs and trustees is checked by the bishop, so the bishop’s is checked by the metropolitan, and the metropolitan’s by an actio popularis.'¹ If the Church did not own the property thus devoted to charity but withheld from the bishop, who did? Is it the personified Purpose, ‘Zweck’ or ‘but’, more familiar to the Germans and French than to the common law or the Romans—the relief of the sick, the ransoming of captives ? Or the unascertained beneficiaries? Or the staff of the House? Or the Principal, TrpoeaTcb$, 8ioikt|tt|$, who is analogous to the bishop, and may be called the trustee ?3 Or the House itself, a Person of wood and stone ? Before following M. Saleilles into a discussion of these possi­bilities,'* we must divide the foundations into classes which are not always on the same footing. There are some, such as monasteries, in which the staff and the beneficiaries coincide. The Purpose may be, here as in other cases, the glory of God; but there are no human beneficiaries except the monks, who are at the same time the administrators of the fund, the servants and instruments of the Purpose. In the second class there are two quite distinct groups of people concerned. This is the large class of which the hospital or nosocomium is the type. The two groups here are the staff, usually if not always composed of clergy, under the Principal or manager, the nosocomus or the like, and the beneficiaries, the sick, the stranger, the aged, the orphan, and the poor. Roughly speaking, the first group are in the position of hosts, the second of guests; though on another view the guests are really the owners and the hosts their servants. In the third class, the staff is reduced and concentrated into the single man, corresponding to the bishop, who administers a fund. The typical case is an endowment for the redemption of captives, which has no

¹N. 131. 10. pr.                             ¹ C. 1. 3. 4.5. 6; N. 131. 11. 4.

³ These are Saleilles’ alternatives, Melanges Gtrardin, p. 534.

⁴ 0/. cit. pp. 534-45.

l86 buildings, no ‘inmates’, but only a manager and bene­ficiaries.

M. Saleilles, dealing especially^[CCII] with this third class, emphasises the fact that the poor and the captives are themselves instituted heirs;² and from this he deduces that the ownership is in the beneficiaries regarded as a corpus or ‘collectivity’, but a ‘collectivity imprycise et anonyme’;3 the manager is a ‘trustee’ in the English sense but without the ‘legal estate’. There is much truth in this analogy, though as expressed it is a contradiction in terms. But some of his deductions from the texts call for criticism. He lays some emphasis on the alleged fact that ‘ces collectivitys de bynyficiaires sont assimiiyes aux corpora du droit classique; on les appelle du nom de consortium^ de σύστημα’.⁴ This seems open to question. Certainly hospitals, almshouses, and the like are, for Justinian, consortia^ συστήματα, but none of the texts quoted by Saleilles or by Meurer5 suggests that either captives who need to be, or have been, ransomed, or poor people who need, or receive, charity but do not live in an almshouse, can be so described. Where there is no House, no oIkos, there is no talk of a consortium. If the word means a ‘collectivity de bynyficiaires’, it is only applied to ‘collec­tivitys’ which may be transient but are not ‘ imprycises ’, namely, the residents in a particular House at a particular time. But it is far from clear that even in a House the consortium is to be identified with the beneficiaries. It is indeed strongly suggested by some words in C. i. 3. 45. 9: El δέ τινα των καλουμένων άνναλίων πρεσβείων καταλειφθείη ή δωρηθείη κλήρω τυχόν ή μοναστήρίοις ή άσκητρίαι$ ή δια-

κονίσσαις ή πτωχείοις ή ξενώσιν ή νοσοκομείοις ή βρεφοτρο- φείοις ή τοϊς των άγιωτάτωυ έκκλησιών πτωχοϊς ή απλώς συστήμασί τισιν εύαγέσιν ή όλως ούκ άπηγορευμένοις των έκ πλήθους ήθροισμένων,¹ βουληθεΐεν δέ κατά τινα καιρόν οί τηνικαϋτα ευρισκόμενοι χρυσίον υπέρ της τοιαύτης πράξεως λαβόντες διαλύεσθαι, μή έξέστω τοϋτο ποιεΐν κ.τ.λ. In this text οί έκ πλήθους ήθροισμένοι, those collected out of the populace, must be the poor, sick, orphans, etc., and it is to συστήματα of them that the legacies are left. And yet the result is not satisfactory if we look at the words that follow. For if by νοσοκομείοις ή βρεφοτροφείοις ή... συστήμασί Justinian means ‘to the beneficiaries of hospitals, orphan­ages, etc.’, then οί τηνικαϋτα ευρισκόμενοι, the inmates, must also be the beneficiaries. But this is absurd; for the sick and the orphans could not possibly administer the House’s property, οί τηνικαϋτα ευρισκόμενοι must be the administrators, the people competent to decide on lawful transactions and therefore forbidden to do what is unlaw­ful, that is to say, the Principal and Staff?

Now the Staff of a House are a much more convincing consortium or σύστημα than the beneficiaries. They would no doubt vary greatly in character, from a homogeneous body of monks in a monastery to the Principal, assisted only by servants, of a small orphanage. But wherever there was a staff, it must have been comparatively permanent and had something of that esprit de corps which should characterise a consortium and is not to be found among the patients in a hospital. Moreover, the staff had, or might have, some say in the administration of the House’s property: μεθ’ όρκου των διοικητών καί συναινέσεως τοϋ πλείονος μέρους των έν αύτοϊς λειτουργούντων.3 And lastly, the adjectives applied to συστήματα are more appli­cable to the staff than to the inmates. Again and again we find them called ευαγή, pia. The clergy who devote them-

¹ Krüger strangely translates: 'vel denique quibuslibet pits corporibus vel plane collegiis non prohibitis'.

¹ See pp. 179—81, supra.                     ³ N. 120. 6. 2.

l88 selves to work in hospitals and almshouses are surely more likely to be called pious than those to whom they minister; and even if the beneficiaries are idealised as pious, like the ‘deserving poor’ of our grandparents, this will not account for a text which calls the συστήματα ‘priestly’, Ιερατικά.¹

All the evidence except the words των έκ πλήθους ήθροισ- μένων indicates that if the consortium is either the bene­ficiaries or the staff it must be the latter? But the truth may be sought in a synthesis of the opposing views. A Hospital or other House does in fact contain two ‘ collec­tivity ’ which are sometimes thought of as one. A Hospital football team is drawn from the staff, an Orphanage team from the orphans; but a gift to the Hospital or the Orphanage may be spent on improving the amenities of either the staff or the inmates. What Justinian means by consortium is a collection of people who live in a εύαγής οίκος and benefit by gifts to the House. Sometimes he is thinking primarily of the staff, and calls them pious or priestly. Once at least he thinks primarily of the beneficiaries collected from ‘the streets and lanes of the city,...the poor, and the maimed, and the halt, and the blind’? Usually he is not thinking particularly of either class, but of the institution or establishment as a whole, and ευαγές σύστημα is a mere variation of εύαγής οίκος. The word is most naturally used where, as in a monastery, there is only one ‘collectivity’ in the House; where there is no House, but only an earmarked fund, as for the redemption of captives, it is never used at all. Justinian

¹ N. 7. pr. pr.

³ So Brinz, Lehrbuch der Pandekten,vo\.in, part II, 2nd ed. 1888, p. 479, n. 5,andDuff,Charitable Foundations,p. 96. ‘Unhaltbar Duff⁵ says Schnorr von Carolsfeld, p. 2 3, who follows SaleiUes and Meurer; and my statement was in fact over-simplified and not supported by the evidence now adduced.

3 Luke xiv. 21. C. 1. 3. 32. 7, if our MSS. are correct, jumps from one class to the other: ‘nullis (ecclesias) earumque sacerdotes out clericos cuiuslibet gradus aut monachos vel ptochos aut xenodochos orthodoxae fidei deputatos extraordinariis muneribus praecipimus praegravari? Monks may be regarded as parallel either to ptochi or to xenodochi. On the ptochi of C. 1. 2. 17. 2, see p. 181, supra.

was far indeed from the ideas of Baldus de Ubaldis,¹ who says 'pauperes in genere habentur instar collegii: et per consequent instar personae'.

But it is certain that the captives and the poor could be instituted heirs; the rule against institution of incertae personae, which was so long maintained against towns,^{[203] [204]} and always against secular colleges,3 was broken for them by Justinian.^{[205] [206]} Moreover, it is they for whom the charity exists. They are the objects, the ends, of the charity, the Principal and staff only means for its accomplishment. Thus it may seem uncharitable or impious to question their ownership. But Saleilles has suggested a convincing solution ;5 speaking of the Foundations in general, he says.: ‘ La venerabilis domus, lorsqu’il s’agissait d’eglise, dissimu- lait la personne du Christ; et lorsqu’il s’agissait d’institut de bienfaisance, elle dissimulait les pauvres ou les malades.’ This analogy is particularly helpful in connection with the poor and captives. Both they and Christ are instituted; both are equally incapable of exercising dominium under the private law; and both require a representative to administer their nominal property. The instituted captives are what a Court of Chancery might call ‘ beneficial owners ’, cestuis que trustent, but their ownership is as nebulous and as useless to a practical lawyer as that of angels and martyrs. As the Church represents Christ on earth and acts through the bishops exactly as an owner, so the manager of the fund represents at any given time and place the captives in foreign prisons or still unborn, and appears in all the transactions of everyday life not as an executor or agent but as a somewhat fettered owner.

This view may perhaps derive further support from the text already referred to as allowing institution of captives and the poor.¹ We should naturally expect from Justinian a wordy panegyric on the pious testators who wished to give their whole property directly to the unfortunate. But for once he is brief and to the point. The constitution begins ‘Si quis ad declinandam legem Falcidiam\ and the murder is out. The object of the rule is not to give the beneficiaries dominium or a ius in rem, but to protect them against badly worded wills and the avarice of trustees or churches. We have seen that a testator could nominate his own trustees,^{[207] [208] [209]} but he might not easily find anyone who would expect no reward for his trouble if instituted heir and required to spend the whole estate on charity. And a not very pious soldier who wished to arrange for the ransom of prisoners of war might not be overpleased to see a quarter of his property go either into his executor’s pocket or to the bishop for general church expenses. The only objection to instituting as heir an individual or a committee or the church, and imposing charitable legacies or fideicommissa exhausting the whole estate, was that the nominal heir could always make his inheritance real to the extent of a quarter; and it was only this technical difficulty that was overcome by the rule in C. 1. 3. 48. pr. Henceforward an institution of the poor or captives, who were essentially uncertain and therefore incapable, was to be valid3 and construed as a gift to some other person or persons (like a legacy to ‘the poor’ in England), who were to take the inheritance, hereditatem suscipiant^ and receive the position and name of heirs, ‘heredum eis et ius et nomen dedimus', but not the Falcidian quarter, ‘sine Falcidiae tamen legis emolumento'.5 At the same time the Falcidian was also taken away from all other heredes who had been duly instituted and required to devote the estate to the poor and the prisoners.⁶

This law gives fresh prominence to the manager of the fund, who corresponds to the bishop and to the Principal of an institution. It is increasingly clear that all these people had a strong claim to be regarded as owners of the property committed to their charge, but we must not press such a rule of construction as that of C. 1. 3. 48 to its extreme logical conclusion. Justinian was quite capable of saying that the man he called heres was yet not dominus, and that the property really belonged to the uncertain but instituted poor. We must consider some more texts before we pronounce on the position of the manager, the bishop, or the προεστώς; and it is only for the sake of convenience if we use to cover all three a term which cannot be technical in talking of Roman or Byzantine law, and call them trustees.

An interesting light is thrown on the trustees’ position by C. 1. 3. 41. ii—18. Justinian has just discussed the bishops and here deals collectively with the Principals of various kinds of charity; he has no general name but either enumerates them—ξενοδόχφ ή νοσοκόμω ή πτωχο- τρόφω ή όρφανοτρόφω—or describes them by a periphrasis. The first and most important rule he lays down is that no such person, after he has taken up his position as a νοσόκομος or the like, may alienate any property whatsoever, unless he had it before taking office or has since received it from his parents, uncles, or brothers and sisters.¹ With this exception, anything given or bequeathed to the Principal is presumed to be intended as a gift to the institution, and is inalienably tied to its service. It appears, though not clearly, that the Principal is owner of the property, τά κτηθέντα αύτω (§ 11), δσα εις αυτόν περιήλθεν (§ 12), άπερ λαμβάνει (§ 14), but he can only spend it on the in­stitution. It makes in practice no difference whatever whether the testator names the Principal or the institution, the persona or the domus·.^1, and the texts read like a pro­hibition to alienate his own property acquired in virtue ¹ So for bishops, C. 1. 3. 41. 5.   ² Cf. p. 22, supra. of his office rather than a prohibition to steal somebody else’s.

Agreeably to this, we find that whatever kind of founda­tion he presided over, the Principal’s powers were very wide. We have seen that in the semi-ecclesiastical Houses the Principal makes contracts,^[210] though here he must account to the bishop;’ and in other texts we find him alienating,3 accepting gifts,⁴ borrowing,5 pledging land⁶ and granting emphyteusis,? vindicating,⁸ suing and being sued for debts?and claiming legacies;¹⁰ he is personally liable only if he exceeds his powers.^[211] Of the orphanotrofhus in particular we are told that he has all the powers of a tutor and curator¹’ over the property of the orphans and of the House itself; and though subject to administrative control he need neither give security nor render account.^ The cumulative effect of these texts is considerable; if the Principal is not an owner, he behaves remarkably like one.

It is now time to consider the third candidate for owner­ship of the institution, the body of ύπουργοϋντε$ that we have called the staff. We have already seen that those institutions which have a staff are sometimes referred to as consortia or συστήματα,¹⁴ and that they are treated as analogous to the towns which were completely corporate. There is thus a certain presumption that they, like the manager, might in some cases and to some extent be thought of as owning the institution. Some light is thrown on their position by the two texts on the formalities required for alienating the property of charities.¹ Of these the Novel does not deal at all with the quite independent Houses, and the earlier law is so mutilated that we cannot tell whether it originally did or not. But it seems over­whelmingly probable that if we eliminate the bishop and his agents from these texts we shall get a tolerably accurate picture of the lay, or at least unepiscopal, Houses.

The representation we find in these passages is in the nature of a compromise between the claims of the Principal and the staff, and we can see where each of these two parties had its chief strength. The Principal or trustee we have already seen exercising undivided authority over funds for prisoners and the unhoused poor, having swallowed up the staff; now we may note that the corporate idea survived in comparative purity in the monasteries. The fjyouuevos corresponds to the magister of a college, and the will of the majority is recognised as that of the consortium. Where the oeconomus and clergy appear side by side, and in all charitable institutions of the hospital type, the two systems are fused; what happened in case of collision between the Principal and the staff we do not know. The Trrcoxot, of C. 1. 2. 17. 2, if genuine,² are an illogical but natural extension. The monasteries had made familiar the idea of a domus being represented, under its divine owner, by all the inmates; and as the irrcoxEiov may well have been given directly to ‘the poor’ it seemed a chance to let some of them enter on their inheritance. Someone may have pointed out to Justinian how unreasonable this was before he issued the 120th Novel.

We have now discussed and can sum up the claims to ownership of the beneficiaries, the manager and the staff. The beneficiaries are the instituted heirs for whom alone the charity exists, but can point to no analogy except institutio Christi; the manager is an analogue of the bishop, who is himself modelled on the Emperor; the staff can claim to ¹ C. 1. 2. 17. 2; N. 120. 5, 6. See p. 180, supra.

¹                                 See p, 181, supra.

be regarded as a corporation aggregate, the only recognised kind of property-owning unit except personae. Interwoven with all three is the idea of the hereditas iacens·, the poor, the sick, the orphan, are in the position of heirs who are allowed to delay indefinitely the entry they can never make; and the manager and staff are in a position half-way between that of servi hereditarii whose acts are provisionally valid till the day of judgment and tutors whose wards will remain under age for all time. The poor and helpless have the name of heirs¹ and owners, which they share, in a Church institution, with ‘The Church’ or with God and His Saints; the practical rights and duties of ownership are attached to the bishop or Principal, who must some­times defer to the wishes of his staff.

Nothing has yet been said of two candidates for owner­ship mentioned on p. 185, the Purpose and the House ‘itself’, and it may be doubted whether anything ought to be said of them in a discussion based on Roman or even Byzantine texts. But it is very commonly stated, and yet more commonly taken for granted, that Justinian was familiar with ‘Stiftungen’ and the ‘Anstaltsbegriff’,^{[212] [213] [214]} and this doctrine must be explained for the benefit of English readers3 and, if false, refuted.

Modern German law, taking over the results of ‘die gemeinrechtliche Jurisprudenz’, the 'usus modernus Pan­dectarum', recognises as Persons^[215] not only individuals, Einzelpersonen, -personae., and groups, Vereinspersonen, corpora, but also Stiftungen, which cannot be translated into English, or Latin, or Greek. All juristic Persons of the private law are either Vereine¹ or Stiftungen;² those of the public law3 include, besides Körperschaften and Stiftungen, ‘Anstalten des öffentlichen Rechtes’; but the difference between Stiftungen and Anstalten is obscure, controversial, and not important for our purposes.

The essence of a Stiftung is that property is devoted to a Purpose imposed from outside by a Founder or by the State, and not changeable by any act of the holders or administrators of the property for the time being. In ordinary speech the term Anstalt is commonly applied to an institution or charity which is housed in a building,¹* like the foundations dealt with in this chapter, while a fund for providing scholarships or promoting research is called a Stiftung—the Savigny-Stiftung for example; but this distinction is not legally significant.

If we then ask who owns the property so devoted, we are met by a surprising variety of answers. It seems now generally agreed that ‘the Stiftung’ is owner, that all practical questions about the administration of the property are adequately answered by the B.G.B., and the ultimate analysis of the legal position does not much matter. But in the generation that made the B.G.B., controversy raged on this topic. For Windscheid the property of a Stiftung owned itself: ‘Als Subjekt von Rechten und Verbindlich­keiten wird das Vermögen selbst gedacht, zu welchem sie gehören’.5 Gierke and Dernburg denied this, and found the Rechtssubjekt in the will of the founder embodied in the administrators.⁶ ‘Das Subjekt der Stiftung ist die soziale Organisation zum Stiftungszwecke.’? ‘Gleich der ¹ B.G.B. §§21-79.   ² B.G.B. §§ 80-88. 3 B.G.B. §89.

⁴ A German mathematician, asked whether Trinity College (a corpora­tion in English law) could be called an Anstalt, replied ‘ It would be possible, but it would not be polite’. 5 Windscheid, Lehrbuch, vol. 1, p. 223.

⁷               Dernburg, Das bürgerliche Hecht, vol. 1, 3rd ed. 1906, p. 312.

Körperschaft und der öffentlichen Anstalt ist sie also eine Verbandsperson.’¹ For Brinz,³ the property did not belong to anyone, but ‘belonged for’ the charitable purpose, the Zweck.

These various views only concern us when an attempt is made to impose them on the Romans. We have seen Mitteis transforming Caesar’s fisc into an Anstalt ;3 and it is a less forlorn hope to introduce some such idea into the juristic chaos of a purely Byzantine institution. The most promising bridge between the Corpus Iuris and the Stiftung seems to be the doctrine of Dernburg and Gierke. Verbandspersonen were familiar to the Romans, and we have seen that they tended to regard a monastery as a Verbandsperson and other Houses as analogous to mona­steries. if we define a Stiftung as a corporation in which the members cannot be identified, and remember that the Houses which look so like German Stiftungen to outward view are called consortia though it is doubtful who are the consortes, the temptation is strong to identify the two institutions, talk of Byzantine Stiftungen, and suppose that if Tribonian had been asked who owned the hospitals and orphanages he would have answered in language like Gierke’s. Indeed it is quite possible that he would; but that is because even if what we have quoted Gierke as saying about Stiftungen is true, it is not the whole truth. Roman municipia and collegia often owned property whose use was governed by the wishes of a donor, and Tribonian may very likely sometimes have thought of pia consortia as similar bodies similarly fettered in their ownership. So in England there are thousands of corporations holding property ‘ in trust’ for charitable purposes; and the English charitable trust, like the Roman legatum sub modo, has much in common with the German ‘fiduziarische’ or ‘unselbständige Stiftung’. But from this to the ‘rechts-

¹ Gierke, op. cit., p. 647.

³ Brinz, vol. 1, 3rd ed. 1884, pp. 230-8, vol. in, part II, 2nd ed. 1888, pp. 453-586.                                                        ³ See p. 56, supra.

I97 fähige Stiftung ’ is a very long step. It is a step that English law has never taken. Strong evidence is needed, and has not yet been produced, to show that it was taken at Byzantium.

The more orthodox view that in a Stiftung the property ‘owns itself’ fits the language of laymen in every age and clime. Nothing is more in accordance with ordinary people’s mental habits than the personification of a building, be it a Temple,¹ an Inn of Court,² or a Shop.3 In Germany it may be possible for land to belong legally to a building. In England we constantly talk of estates as belonging to Trinity College, for instance, or St Thomas’ Hospital, but all educated people know that the real owner of the land is not a building, not a Stiftung, but either a corpora­tion or a body of trustees. Consequently we are reluctant to draw any legal deductions from the use of such language in other countries, and we must insist that when Justinian talks of property as given to a nosocomium or the like, this does not exclude any of the possible legal analyses of the situation; nor does it prove that the situation was legally analysed at all.⁴

¹               For examples, see Schnorr von Carolsfeld, pp. 39-43.

²               On the legal position of the four Inns of Court, to one or other of which every English barrister or judge belongs, see F. W. Maitland, ‘Trust and Corporation’, Grünhut’s "Leitschrift für das Privat- und öffentliche Recht, vol. õõõï, Vienna, 1904; Collected Papers, 1911, vol. in, p. 370.

³               For a striking example see a papyrus (Grenf. 11. 88 (a.d. 602)) quoted by Wenger, Die Stellvertretung im Rechte der Papyri, 1906, p. 120.

^{size=1 color=black face="Times New Roman">4}               Schnorr von Carolsfeld (p. 23) finds the pious Houses ‘als res auf­gefasst’, ‘also ihr Stiftungscharakter dargetan’ in C. 1. 3. 34 (a.d. 472): 'Omnia privilegia quae...sive circa ius metatorum sive in aliis quibuslibet rebus praestita sunt orphanotrophio sive asceteriis vel ecclesiis aut ptochiis seu xenodochiis aut monasteriis atque ceteris hominibus etiam ac rebus turis eorum ad curam Niconis viri religiosissimi...pertinentibus etc. § 1 Domus etiam aliasque res superius nominatas ad curam memorati viri pertinentes....’ Here the Houses are scarcely personified in the pr. and not at all in § I. The privileges in question are given rebus (cf. D. 50. 15. 3. 1) or locis (cf. D. 50. 15. 4. 3), not personis·. the ius metatorum, billeting, seems identical with the munus hospitis recipiendi, and we are told (D. 50. 4. 18. 29) that those granted immunity from personalia sive etiam civilia munera cannot be excused ab hospite recipiendo. The meaning of hominibus àñ rebus iuris

Brinz’ theory is more closely linked up with Roman texts. He makes play with the expression pia causa, for which see p. 179, su-pra, and with such phrases as '■pro redemptione captivorum relinquere';^x and points out that Gaius³ describes as nullius in bonis all res divini iuris, res hereditariae, and res universitatum. But not even Justinian ever speaks of a pia causa as owning property; ‘for the ransoming of captives’ has no theoretical implications; and it is perfectly clear that what Gaius means by nullius is ‘no individual man’s’, nullius hominis, nullius personae, ‘von keinem Menschen’. A Zweck is of course present; a ruling purpose is implied by the words plus, venerabilis; but it is not thought of as owner.

We need not prolong the argument, and for a definitive judgment of these modernising theories we may turn to Saleilles.3 ‘Je crains que 1’on se soit un peu laissi dominer dans toute cette question par des conceptions th^oriques absolument modernes, dont on a cru retrouver 1’equivalent sous la plume, cependant terriblement diffuse, de Jus- tinien. Il est bien certain que, si 1’on veut identifier les idees juridiques des Romains du cinquifeme et du sixieme

eorum is shown by C. 1. 3.1 which privileges ^let dos' (the clergy) ^let mancipia vestra', and C. 1. 3. 2 exempting from munera sordida the ergasteria and tabernae of the clergy (pr.), their ‘ homines, qui operam in mercimoniis habent' (§ 1), their facilitates atque substantiae (§ 3). The exemption is justified by very similar reasoning in the last sentences of C. 1. 3. 2. pr. and C. 1. 3. 34. pr. Thus we see that hominibus ac rebus means employes (whether necessarily slaves is not clear) and property, the property in question being mainly factories and shops in Constantinople; while domus aliasque res in § 1 recognises that buildings devoted to pious uses, whether or not they are Persons, are certainly Things. So it would be good English, though not true, to say ‘The exemption of a Hospital from Income Tax applies not only to the Hospital itself but also to its estates and those employed in its service.’ Iuris eorum is obscure. I believe it means simply ‘belonging to them’, and that in the Edict of Milan ad ius corporis eorum pertinentia means ‘belonging to (the ownership of) their body’ (see p. 171, supra)·, but Schnorr von Carolsfeld’s ‘die sich in gleicher rechtlicher Lage befinden wie die erwähnten’ fits my interpretation of the passage equally well.

¹ C.i.3-48.pr. Cf.h.1.2 andN. 65, rubric and c. i,andNov. Marcian. 5.1.  ² D. 1. 8.1. pr.=G. 2. 9-11.       ³ Op. cit. pp. 517, 518. siècles avec les conceptions allemandes du xix⁶ et du xx⁶ siècles... sur la Stif lung allemande, on commet une véritable méprise; et l’on ne peut, par avance, à pareille assimilation, que répondre par une négation absolue. Tout ce que nous pouvons prétendre retrouver dans la société du Bas-Empire ce sont des institutions qui fonctionnent à peu près comme nos fondations, avec un mécanisme juridique à peu près analogue et des résultats plus ou moins identiques. Si nous constatons cette equivalence de fonctionnement; si la structure de l’institution nous apparaìt à peu près semblable, dans ses pièces essentielles, à ce que sont nos établissements publics ou privés de l’époque moderne, nous aurons le droit d’attribuer à la législation romaine de la dernière epoque une notion pratique de la fondation analogue à la nòtre; quant à la notion théorique, elle n’est pas en cause. Qui done aurait la naìveté de croire que les Romains du vi^e siècle donnaient de leurs institutions juridiques une explication identique à celle que nous pourrions fournir des équivalents qui les remplacent dans notre droit actuel, qu’ils en avaient une conception analogue à la nòtre, et qu’ils se faisaient de leurs caractères juridiques une idée comparable à celle que nous pourrions nous en faire? Mème si nous trouvons des établissements qui fonctionnent comme les nòtres ou comme la fondation alle­mande, nous pouvons ètre sùrs que les Romains n’avaient aucune idée du problème théorique que soulève chez nous la conception de la Stiftung.’ Nothing could be more just or better expressed.^[216]

A further question is sometimes raised. The charities, the venerabiles domus., can certainly own property, and are therefore Persons ; how then does· Personality come to be attributed to them, ‘since corpus habere required a state concession’?³ There is no special difficulty about the Church and the institutions under its control; for the Church was fully recognised to have every right conceiv­able under the private law, and could override it if necessary. But where a testator instituted ‘the poor’ and instructed a friend to set up a irrcoxsiov, how was this establishment able to buy food for the inmates and protect its property in the courts? We hear of charities being given many exceptional privileges, particularly favourable treatment in respect of gifts and legacies, an unusually long period of usucapion, exemption from various taxes. But they are never expressly given the bare necessaries of life, the right to own and the right to sue, the right to buy and the right to sell, the right to exact their debts and to vindicate their property. All the texts dealing with them seem to assume that they already have at least as many rights, as full a measure of Personality, as ■a.'peregrinus under the Republic or a college under Tiberius. If none but human beings could have these rights without State concession, how did the charities get them, and why has the process left no trace in the texts?

It has been suggested that every Foundation required a ceremony of consecration which brought itunder the mantle of the Church; but this is obviously untrue of pious, but not ecclesiastical, foundations.¹ The passages which give the bishop a right to act if the heirs or nominees do not themselves set up and carry on the institution clearly imply that private persons could create and maintain such an institution without any special authorisation of any kind from Church or State. Again it has been suggested that the authorisation of gifts to charities implied a general grant of Personality to all such foundations like the old grant of ius coeundi to burial clubs; and there may be some truth in this, as also in the view that the Personality of inde­pendent domus is a tacit extension of the rights allowed to Church-owned institutions.

¹               The texts quoted (N. 5. I; N. 67. I, 2; N. 131. 7) refer only to churches, oratories, and monasteries.

But it is not clear that a sixth-century lawyer would have attached any meaning to the phrase 'corpus habere', or that he would have admitted, when it was explained to him, that corpus habere required a State concession.

The words only bear the meaning required here in one passage, the first fragment of the title Quod cuiuscumque universitatis nomine vel contra earn agatur.¹ It is there said, on Mitteis’ view, that corpus gives, or is, the right to own corporate property and take part in legal transactions, like a town, through the medium of an actor. The word corpus seems to have been misunderstood by whoever recast D. 3. 4. 1. pr.,³ and would probably have been unintelligible in this connection to Tribonian. In any case the word would only be applicable to Vereinspersonen, corporations aggregate. Only a Person that is a corpus can have corpus, just as only a persona could have a persona. Where there is only a House or fund with no body of men to own it, the phrase is out of place.

This cavilling at words may seem pedantic, but it is significant that the Romans had no better word for ‘Personality’ than corpus, no word that could be applied to the capacity of a corporation sole or a Stiftung. The absence of a word suggests the absence of the idea.

Besides, it is corpus habere, not ‘Personality’ or any other periphrasis, that Gaius tells us required State con- cession.3 If we are right in taking this to mean ‘Per­sonality’, it follows that in the first century of the Empire collegia and societates could only acquire the capacity to own and sue by a special grant of the Emperor or the Senate. But under Marcus Aurelius at latest these rights were implied in the ius coeundi; and from the time of Gaius to that of Justinian we never hear again of any separate grant of capacity. The idea of corporate rights and liabilities only gradually penetrated the Romans’ brains. At first no doubt it seemed to them as absurd and iniquitous for

¹ D. 3. 4. 1. See pp. 141 ff., supra.               ^z See p. 148, supra.

a man to defraud his creditors by saying that he had given property to a college and could not take it back,¹ or that they must look for payment not to him but to a univer- sitas,² as the limited liability of a Joint Stock Company seemed to W. S. Gilbert.3 In the early Empire this curious and dangerous privilege was granted only to those who could either demand it or be trusted to use it innocently. But it was soon found that the bomb did not explode, and all special restrictions were removed. It is abundantly clear that to a Roman lawyer the reason why colleges⁴ needed authorisation was to prevent conspiracies and dis­order, not to restrict corporate ownership. The hardship on creditors was slight, and the horror of Mortmain, which seems natural to a lawyer trained in any post-feudal system of law, was absolutely unknown to Rome and to Justinian.5

Thus to the question ‘Why were the charities allowed to own property ? ’ it is a right and sufficient answer to say ‘Why not?’ and ‘corpus habere required a state con­cession’ is not a valid rejoinder. It would be unseemly to suppose that the charitable institutions would be treason­able or riotous; and no ‘juristic Person’ of any kind had ever been refused on any other ground those rights which, when exercised by a group, had once been called corpus. It had long been regarded as proper by nature to a town to own and sue, without authorisation of any kind; and there was no third kind of universitas to argue from. Testa­ments f actio was now as always treated as a thing apart; but there was no precedent later than a.d. 200 for refusing to let any lawfully existent god, group, house or fund own any kind of property or bring any kind of action through a duly accredited representative.

But we are again in danger of attributing too clear

* See pp. 13if., supra.                        ² Cf. D. 3. 4. 7. 1.

³               Cf. ‘the Duke of Plaza-Toro, Limited’, and ‘Utopia, Limited’, passim.

⁴Private societates seem never to have desired corpus habere.

⁵               Charities were encouraged to own land, C. 1. 3. 48. 3. a conception to the Byzantines. It has been implied that they recognised a Foundation as a ‘juristic Person’, that they classed it with towns and colleges. If they appear together in some texts, that proves only that all three were convenient trustees for charity, not that they were recognised in theory as three species of a single genus. Not all charities were universitates·, where there is a staff it can be so called; but neither the captives, who cannot be conceived as a group, nor the single administrator, nor the fund itself, could be called a universitas·, and there is no other word to translate ‘juristic Person’. The word is missing because the idea is missing. We have seen that the Romans knew several kinds of what we call juristic Persons. They allowed them to exercise all the rights which make up what we call Personality. But they never theorised about them, they never discussed the nature and origin of a right-and-duty-bearing unit. If they had, we must have heard of it; and there is no faintest echo. They never abstracted from the variety of particular juristic Persons the unified idea of a juristic Person; and if juristic Per­sonality is an abstract, general, theoretic conception, there was no such thing in Roman law as juristic Personality.

NOTE ON THE EXPRESSION 'PIAE CAUSAE'

It is usual for writers on Roman Law to speak of the Byzantine charities as ^lpiae causae', and some explanation is needed of the reason for dropping so convenient a term. The present writer was converted partly by a learned and ingenious, though not very lucid and sometimes unconvincing article,¹ and partly by an attentive study of the texts that contain the phrase. Cugia was roused by the deductions which German and other scholars, and especially Brinz, had drawn from the expression, to discover and explain its true meaning. We need not discuss his arguments in detail, but we may summarise his most important conclusions.

In the first place the phrase is very, rare. Cugia has searched all the surviving constitutions of Roman Emperors, from the Gregorian Code to Justinian’s Novels, and finds it (or the Greek ευσεβείς αίτίαι) only in three constitutions of Justinian and two of his Novels, making not more than a dozen uses in all. This in itself is enough to warn us not to use the word too freely as a technical term: observing that these same foundations are called εύαγεϊς οίκοι twenty-eight times in one chapter of one Novel.¹

Cugia also points out that the meaning usually assigned to causa in this phrase is strangely different from any of its other meanings. These are legion, many of them defying translation into English; but none of them shades at all readily into that of House, Institution, Establishment, Foundation, and there seem to be no intermediate uses which might explain how the meaning changed.

These arguments are enough to make the reader feel doubts as to the propriety of such a phrase as ‘the piae causae were forbidden to sell land’ or ‘the Principal and staff of a pia causa’·, and the feeling is deepened by studying the actual texts and seeing how easily causa can everywhere be given a more familiar meaning. It may be worth while to quote them very briefly and suggest translations or explana­tions.

C. 1.2. 19, donationes super pits causis factae. Either ‘to promote pious purposes’ or ‘inspired by pious motives’? Again, nullt danda licentia quacumque alia causa quasi pietatis iure subnixa (neut. plur.)... {introducere): ‘relying on any other pretext’.

C. I. 3. 28. I, memoratae causae proficere, ‘to help in carrying out the said purpose’. Compare piae ret negotio in h. 1. pr., piae deficientium voluntates in § 2 and pro huiusmodi causa, ‘for such a purpose’ or ‘from such a motive’, in § 5.

C. i. 3. 45. la, δούναι εις ευσεβείς αΙτίας, ‘to carry out pious purposes’. The same in C. 8. 53. 34. la, {donationes) quae in causas piissimas procedunt.

N. 65. I. 4, si...in aliam causam consumpserint, licetpiissima sit, et non in praedictas duas tantummodo causas. Here in aliam causam might mean ‘to carry out another purpose’, but seems to be rather ‘on another head’ in an account. The use is not uncommon; compare, for example, C. 8. 42. I, C. 4. 28. 7. 1, C. 5. 14. 11. 1 and other references in Cugia, pp. 20 and 21. ^{[217] [218]}

N. 131. ό,είς ευσεβείς αιτίας καταλελειμμένων, ‘to carry out pious purposes’. So τά...ταΐς εύσεβέσιν αίτίαις άφορισθέντα (Ν. 131. ιΐ· 3)’ ΐνα... αί... ευσεβείς αίτίαι πληρωθώσιν (Ν. 131· 11. 4) 5 τά είς εύσεβεϊς αίτίας καταλελειμμένα, and προχωρεϊν... εις τάς αίτίας είς άς καταλέλειπται (Ν. 131· 12. pr.); εί δέ ληγόταν ■παρά τίνος είς εύσεβεϊς αίτίας καταλειφθείη (Ν. 13¹.· ^Ι2· *)>^an^ δλλας εύσεβεϊς αίτίας, ‘to carry out other pious purposes’ (N. 131. 13· P^r·)·      .

It is dear that in many if not all of these passages we can get an equally good sense by taking pia causa to be the foundation itself. The glossarists are said to have so taken it and so used it themselves. But in Justinian it can always have some other meaning; it is certainly not a regular technical term; and we shall do well to avoid using it in talking about the institutions of Justinian’s time.