members of the bench, they have been discussed with great ardor and thoroughness of research. It is now time to gather up the results of these discussions as well as by an independent examination of the various sources of information, to present the matter in a systematic form. As the question of the jurisdiction of the court is mainly historical, a foundation of our inquiry should be laid in an examination of the principles of the Roman law upon the subject of charities.

The principles of the civil law concerning charities.—Charity was one of the earliest and finest flowers of Christianity. While the administration of charitable funds occupied the attention of Roman rulers during most of the period of the Empire, no trace can be found of such property in those twelve tables so greatly extolled by Cicero, nor in any of the sources of law during the period of the republic.

The church, from the outset, devoted its revenue to the use of the poor, because it was regarded as their patrimony. The bishop was the legal depositary of these revenues. Under him were superintendents, who had the actual disbursement of the income of the church. The deacons were declared to be his "hand, mouth, and soul." Hospitals were established to simplify their labors. called xenones or xenodochia. The nurses, here employed, formed one of the minor orders of the clergy, and 'the office of the modern Sisters of Charity was anticipated as early as the days of St. Jerome. This class of establishments, whether founded by the bishops or not, was placed under their care, as their administration was regarded as a matter essentially ecclesiastical.

Contributions for the use of the poor were treated as religious acts. The writings of the time mention many legacies in which the testator provided by the same gift both for the support of the indigent, and for the forgiveness of his sins. The revenues pro

1 Among the recent arguments of counsel, pre-eminent for historical research and affluence of learning, may be noticed that of W. Curtis Noyes, Esq., of the New York bar, in the case of Beekman vs. The People-Ct. Appeals.

2 This form of gift was greatly employed in the Middle Ages.

vided for charitable purposes were tithes, legacies, donations of movables and immovables, given to churches and otherwise. These gifts became so numerous, and were, at times, so improper, that conscientious bishops returned them to the next of kin, stating, that though they were valid by the human law, they were void by the divine law. The resources of believers were apparently poured out without stint, both because it was a privilege and a duty to support "Christ's poor.'

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At the time of Constantine, charity became organized and systematized. Individual almsgiving was mainly displaced by the dispensation of charity through regular channels. The churches acquired legal rights to hold property. The Church of Rome possessed houses and lands not only in Italy and Sicily, but in Syria, Asia Minor, and Egypt. Charity flowed, in general, through such channels as the church provided. The State, as such, in a few instances previous to the time of Justinian, had bestowed charity for special and peculiar reasons; but, in his reign, it abdicated such functions through sheer exhaustion, and definitely left the charge of the poor to private and to voluntary benefactions.

The monasteries, from an early period, admitted into their bosom a crowd of poor, who could have found elsewhere no means of subsistence. They were also places of refuge, and supplied the means of education to children.

The objects of charity were very diversified. Besides the support of the poor and the sustentation of hospitals, the redemption of captives was in a large measure made by the aid of the church. Severity of taxation was also alleviated. It was said by one that "Christ chose to be born at the time of a census for the purpose of teaching collectors their duty of equity and mercy." Legislation followed in aid of the efforts of the church. This was of a two-fold character: First, in providing peculiar rules in favor of legacies to pious uses; and, Second, in the establishment of rules for the administration of the charity.

1 This continued to be true down to the time of Justinian. "Some with the highest hope in God, and to save their souls, run to the churches. bringing and bestowing all their property for the use of the poor and needy."-Cod. 1 3, 42

I. In the time of Valentinian and Marcian, A. C. 452, it was provided that legacies in favor of the poor should be maintained, even though the legatees were not designated.1 It would appear to be implied from this passage that a legacy left to "undesig nated persons" was, in general, void. What the words "uncertain person" (incertus persona) mean, is not entirely clear. It would seem, from another part of the code, that they included guilds or associations, as well as individuals. Cod. VI. 48.2

Leo and Anthemius enacted that, notwithstanding the uncer. tainty of persons, every legacy or fidei commissum, made for the redemption of captives, should be, in the course of the year, consecrated to that use by the bishop of the place. The text, so far as this branch of the subject is concerned, is as follows: No heir or legatee shall in any manner unjustly disappoint the intention of the testator by asserting that a legacy left for the redemption of captives is uncertain. If the testator named any one by whom he desired that such legacy should be carried into effect, let such person have the liberty of exacting the legacy or trust, and let him scrupulously fulfil the wish of the testator. But if no person is designated, and the testator has only fixed the amount to be used for this purpose, let the bishop of the place where the testator was born, have the power to demand the gift. But when the testator who has left such a legacy lives beyond the limits of the Empire, (barbaræ sit nationis,) and doubt arises in respect to his native country, let the bishop of the State in which the testator died, have the power to receive the legacy." It appears from this pas sage that the bishop was only made superintendent in cases where the testator had provided no method for carrying the will into effect, and had only fixed the amount to be appropriated to a charitable purpose.

Where the language of the will was indefinite, and not capable

1 Id quod pauperibus testamento vel codicillis relinquitur non ut incertis personis relictum evanescat, sed omnibus modis ratum firmumque consistat.-Code, 1, 3, 24 2 The edition of the Corpus Juris, from which citations are made, is Beck's Leipsic, 1831.

3 Code, 1, 3, 28.

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of precise application, provision was made by Justinian for an arbitrary method of determining the testator's intention. The Roman law did not favor methods of interpretation so strict as those which have prevailed in modern times. The rule that oral evidence is not admissible to vary the meaning of a written instrument, seems to have been expressly repudiated by Justinian. He says: "where the deceased had in his mind a different word from that which he used, we decided, in the case of a certain Ponticus, that the written language should not prevail over the truth." With such notions we should not be surprised that he established the following constitutions: "Since we have in many wills found provisions in which our Lord Jesus Christ is named as heir, without the mention of any chapel or church, and since we have seen that much uncertainty thence arises according to our ancient laws, we determine, by way of emendation, that in such a case the holy church of the city or district where the deceased resided, must have been intended to have been instituted heir. The same view is to be adopted in the case of a legacy or of property given in trust (fidei commissum), and the church is to hold it in trust for the poor. If the gift was made to an archangel, or to one of the blessed martyrs, a provision which I have known to be made by one of high rank and learned in theology and law, it should be bestowed upon a church constructed in honor of that archangel and martyr; but if there be none such, then upon the Church of the metropolis," &c.

2. The law would compel a donor to carry pious intentions into effect when the intentions had assumed a legal form. Thus, if a donor had devoted property to a saint, prophet, or angel, to construct a church, and had proclaimed the gift to a magistrate, he and his heirs must carry the provision into effect. The same rule was applied to gifts in behalf of hospitals. The bishops and governors of hospitals were charged with the duty of observing that the intention was effectuated. In fact, by the direction of Jus

1 The administration of the funds was to be in accordance with the donor's intentions; administratio secundum ea quæ his qui liberalitatem exercuerunt visa fuerunt et secundum præscriptos fines fiat.

tinian, every gift (donatio) to charitable purposes exceeding five hundred solidi, must have been made in judicial form. It was otherwise void.1

3. Heirs or legatees could be compelled to erect buildings for charitable purposes. In case of a church they were allowed three years, in case of a hospital, a single year, to complete the neces sary structures, and, in the meantime, a building might be hired, in which beds for the sick could be made until the hospital was constructed. If the heirs did not perform the duty within the specified time, the bishop and President of the province could insist on its fulfilment.2

4. If a gift to charitable uses could not be carried into effect in the manner in which the testator provided, his main design must be observed, and the property must, in some other form, be devoted to a charitable use. This was not so wide a departure from the intention of the donor as it might seem, because the principal reason, "the forgiveness of sins," would still exist. The cy près doctrine, thus originated, is not theoretically objectionable so long as the primal idea of charitable gifts prevailed; the religious duty of the donor and his consequent reward.

Like principles prevailed if the testator made the poor his heirs. The hospital of the State or city obtained the property, and its managers divided the income among the sick, either through the receipt of rents, if lands were given, or, if movable property had been bestowed, by the purchase of immovable, so that an annual and permanent support might be secured to them. "For who need help more than those who find themselves in poverty and in a hospital, and who, on account of corporeal weakness, cannot obtain the means of life." The hospital stands in the position of an heir can bring actions for debts, and must respond to creditors. If there are several hospitals, then the gift went to the one which needed it most, to be determined by the bishop. These provisions

1 Cod. 1, 2, 19.

2 The objects to which gifts "ad pias causas" might be made were churches, hospitals, houses for the sick, poor, aged, and for foundlings, the poor themselves, and the State. Id.

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