GOVERNMENT REORGANIZATION OF EDUCATION IN THE UNIVERSITY OF SANTO TOMAS

GOVERNMENT REORGANIZATION OF EDUCATION IN THE UNIVERSITY OF SANTO TOMASCONFERENCE ON THE COLLEGE-UNIVERSITY OF SANTO TOMÁS OF MANILA, AND THE DECISION RENDERED BY SEÑORS MONTERO RIOS, GAMAZO, AND MAURAConference1. Whether in view of the writ of foundation of the college-university of Santo Tomás, which is enclosed, the ministry has the right to reorganize education therein, without taking account of the religious corporation of the Dominicans.2. Whether, in case of a ministerial resolution, contrary to the native autonomy of the said college, the latter may offer opposition by legal means, and what would be the most efficacious method.DecisionThe foundation of the college of Santo Tomás, which seems to have been commenced under the advocacy of our Lady of the Rosary, in Manila, was ordained by a writ of April 28, 1611, before the notary of his Majesty, Juan Yllán, in order to observe the last will of the deceased archbishop, Fray Miguel de Benavides; and to the new institution were appliedbesides, the few resources which the latter left, and others also modest, which proceeded from the estates of Pablo Rodriguez de Aranjo and Anfrés de Hermosa. There were hopes that new liberalities would augment the capital of so useful a work. Its origin is, then, entirely private.Section 1 of the said foundation spiritualized the properties and their future increases, so that use might be made of them under such concept for the ministry of the college, and the welfare of the souls of the three deceased testators, and of future benefactors. Section 2 entrusted the management to the then or future father provincial of the Order of Preachers of St. Dominic. Section 3 gave the government correction, and instruction of the college to the prior of the convent of that order in Manila. Section 4 allowed the provincial, as patron, to appoint the lecturers who were to give the instruction, and the workmen and helpers necessary for the good administration and for the temporal government, except that if any ecclesiastical or secular person were to endow the college with a large sum, the chapter of the province could give him the patronage, provided that he did not introduce any innovation, contrary to the authority of the father provincial in respect to the provision of lectures, or withdraw the college from the Order and province [of the Preachers], or deprive the prior of the management. Section 5 established that the arts and sciences should always be read and taught in the college by the religious of the province and Order [of the Preachers], and not by any other order, or by seculars. The same was true in regard to the religious pupils, and for the secular collegiates. Section 6 permitted theadmission of bequests, gifts, and other aids weighted with charges of piety, which the convent was to fulfil and observe [levantaria]. Section 7 gave to the provincial chapter the power to make new rules and regulations, both in regard to the distribution and administration of the properties, and in what related to the ministry and instruction, and to appoint a rector. Those rules once made were not to be changed without the special authority and order of his Holiness. Section 10 says: “If at any time, any ecclesiastical or secular prince should try by act and right to exercise any power by way of patronage or in any other manner, in order to try to dispose of the properties and incomes of the said college, or to meddle with the administration and government of it, or hinder and disturb its effect in any way and manner whatever, and by means of any judge or powerful person, or by any other person who may do it, from that time and thenceforth, we apply the said properties and estates with which the said college is founded, and all the others which shall be augmented and applied, and which it shall receive in any manner, to the said province and to the religious of the said order, so that the latter may possess and enjoy as its own properties, acquired by just and right title, all of that property with the said houses and college, and their increases and improvements. We consider this foundation [under such circumstances] as null and void, and as if it had never been made. The said order is charged to be careful to say masses and other benefices and suffrages for the souls of the said archbishop and the others with whose alms and properties this foundation is begun, and all of those who, in the future, in any time and manner,shall leave and apply any other properties to it, so that by this way satisfaction may be given on the part of the said province, for the said alms, to the givers of those alms.”Although the writ of 1611 does not indicate that its signers thought of it, the royal license was inexcusable. According to law i, título iii, book i, ofRecopilación de las leyes de Indias, it was ordered from the time of Felipe II that permission should be petitioned before the building of a church, convent, or hospice, for the conversion and instruction of the natives, and the preaching of the holy gospel. Law ii of título vi, devoted especially to the royal patronage, ordered that no cathedral or parish church, monastery, hospital, or votive church, should be erected, instituted, founded, or constructed in any other pious or religious place, without the express permit of his Majesty. However, law xliii, of the same título, rules that when any person wishes to found a monastery, hospital, hermitage, church, or other pious and charitable work in Indias, from his own property, the will of the founders shall be observed, and the persons appointed and summoned shall have the patronage. The attributes of the royal patronage which declare that “our permission shall be received beforehand for whatever is needed,” shall always be reserved.Royal permission, beyond any doubt, was obtained, although by an indirect method. For law liii, of título xxii, [book i] (which treats of universities and general and private studies in the Yndias) declares that “by the license of the ordinary and governor of the Filipinas Islands, and the decision of the royal Audiencia of those islands, the religious of theOrder of St. Dominic in the city of Manila, founded a college where grammar, arts, and theology were read, in which they placed two religious of each branch, and twenty secular collegiates. Great gain resulted therefrom,” and it is ordered that for the present and so long as his Majesty orders no other thing, “the religious make use of the license which the governor gave them for the foundation.” That was not to be understood “to the prejudice of what was ordained in regard to similar foundations, so that they should not be instituted or commenced without express permission” from the king.With such requirements, respect for the foundation is declared not only by the judicial force of the foundation itself, but also by the above-cited law xliii of título vi; for that respect is equally capable of being required from persons and authorities who are strange to the institution, and from the patrons, administrators, and ministers of the institution itself. The will of such patrons would have no power against the fundamental law whence proceeds their authority. Their end is to preserve and obey that law strictly, and to cause it to be respected by others without any change or violation of it by them. The admissible innovations in the institutions under discussion have the limit and form which were laid down by the foundation. Consequently, therefore, those innovations which might have been made in the patronage, in the administrative management, or in the academical order, provided that they respected that limit and observed the jurisdiction and formality laid down by the writ of 1611, could not be considered as violations, but as faithful applications of the peculiar law of the college.The first part of the conference admits only the following categorical reply: “In the college-university, the ministry has no right to reorganize the instruction.” It has a right, beyond any doubt, to organize the public instruction in Manila, in the manner which it considers most adequate for obtaining the ends of the same. One of the fundamentals which it may adopt could be the elimination [as teachers] of the fathers of the said order. But that will not fall within the college whose foundation we have before us, and the funds and properties of the same cannot be applied totally or partially to the university or college which the government may erect in such manner.The section of reversion, literally copied above, will have its desired effect fully, in the case under consultation (unless permission is given to reconstitute the private institution in regard to the ruling of the writ of 1611), with entire independence of the academical institutions of the state. The disagreement [disyuntiva] would be between this and the reversion of the properties. Therefore, it is sufficient to call to mind the succinct but faithful review which has been made of the cardinal fundamentals of the foundation, in order to have proved that the reorganization of education, which the ministry of the colonies, laying aside all consideration of the community [i.e., of the Dominicans], might order, would wound and destroy in an essential manner, the will of the founders. If that should happen, the province of Santísimo Rosario and the Dominican religious of the province, would not only have the right to recover the properties, and give them the pious application assigned by the section,but also would not have the power to refrain from it, and consent that such properties remain applied to the needs of the teaching institution reorganized by the government. The patrons of a charitable fund, or any other permanent foundation, can never convert the authority of such contrary to the observance and purity of the institution confided to their care. The acts of the patrons, contrary to the foundation, possess the vice of nullity.The lawyers undersigned have no exact and minute information of the vicissitudes which the college-university has experienced from 1611 to the present day. Comparing alone the royal decree of October 29, 1875, which reorganized the instruction of the said college with the writ of its primitive foundation, it appears that some rulings of the former are at variance with the latter: for example, article 3, which declares that the orders, plans, programs, and regulations, which emanate from the ministry and in that case from the governor-general, are obligatory for the organization and rule of education; article 6, and the following ones which allowed entrance to secular professors and defined their emoluments and fees; article 11, which reserved to the ministry the power of fixing the fees of matriculation, degrees, titles, and certificates; and article 13, which obliged the rector to render an annual account to the royal vice-patron of the emoluments and expenses of the university, the order supplying the deficit resulting. But we are not consulting as to the greater or less legal stability of the present condition of the institution or if we were treating of it, it would not be within our province to disavow that in other things of great importance, thegovernment still respected the fundamentals of the foundation, and that the concessions which were made in 1875 in exchange for obtaining by entreaty the abolition of the decrees of November 6, 1870,1appeared practically corroborated by the lasting agreement of the patrons and of those summoned to obtain the properties by virtue of the clause of reversion, although in strict rigor of law the document of the foundation ought to take precedence over any act and any submission of its natural guardians.For the concrete matter of our opinion, we have only to declare that we do not believe that the former more or less extreme mildness of the patrons in the presence of the interference, which rejected the foundation, weakens the actions of the patronage of the college and of the ecclesiastical province favored by the clause of reversion in order to demand the observance of the foundation, if, perchance, the ministry of the colonies, exercising powers which indubitably belong to it, reorganize the instruction of the university without considering the religious community of the Dominicans. Even in the hypothesis of considering as illegal the tolerances or concessions of former times, the foundation, pure and simple, is the criterion and only norm with which the dispute can be adjusted.The second point of the conference offers no difficulty in whatever concerns the existence of a legal means for opposing a resolution of a government contrary to the native autonomy of the college. Leaving aside the attributes of the ministry to direct the services of education as it deems most suitable,whenever they are sustained by the public funds, the opposition, if it limit itself to the use of the properties and funds from private origin, which today endow the institution, would have a legal mean beyond any doubt, to demand the strict observance of the law of foundation.What would this mean be, or which of the two possible means appears more efficacious? Would it be by bringing the complaint before the court ofcontencioso-administrativo2or before the ordinary justice?The law of September 13, 1888, applicable to Filipinas, according to article 4 of its transitory rulings, marks the bound of the jurisdiction of the court ofcontencioso-administrativo. Perhaps the generic notes of article 1 of the said law would be found in a manner suited to the resolution of the ministry. That article would occasion a report [estado]. In what concerns the application of the properties and the incomes of the institution, it would emanate from powers subject to rule, and not discretional, and would wound a preëxisting right ofa certain administrative character. For, besides the original royal permission and that of the protectorate general in regard to the foundations, the public administration has intervened, intertwining the public service of the instruction of that university with the private foundation. But article 4 of the law excepts the questions of a civil nature, and of the competency of the ordinary jurisdiction, the questions in which the right violated may be of a civil character, and also those which emanate from acts in which the administration has taken part as a legal person, or as one subject to rights and obligations. Of a character essentially civil would be the right violated by the hypothetical ministerial decision of which we are treating, reducing to accidental mixtures the ancient connections of the college founded by private persons, with the administration, which was advantageous to the opportunities which the college offered for the service of education. In strict terms one might add that the government, although it would perform judicial acts as a public power, in determining the future system of education, in exchange ought to be considered as a legal person, in so far as it should attempt to obtain by entreaty from the patrons of the college, the aid of the properties and incomes of the legal person incarnate in them. But the notoriously civil character of the laws which are involved in the observance of the foundation of 1611 are sufficient so that we might consider as definitive that the courts of justice would be those summoned to impose on the government respect for the will of the institutors, the owners of the properties with which the college is endowed.But not because we do so understand it (as without vacillation we do understand it), can we advise that thecontencioso-administrativodemand be left out of the claim. Action must be begun in its proper time and manner before the special court, with the intention that on that court rejecting the demand, as outside its peculiar jurisdiction, it would leave out of all doubt the jurisdiction of the common court. In this manner, it is probable that the attempt would be made to take advantage of the ambiguity, and maintain that the result of the deliberation had been consented to because of the lack of the other appeal, confusing with episodical and accidental discussions the controversy over the substantial and fundamental matter. The preliminary attempt ofcontencioso-administrativoappeal causes no disgrace to civil actions which have a longer life.In conclusion then, the undersigned believe:1. That, although the ministry of the colonies can alter at its discretion the system of public education in Manila, it has no right to apply the funds and properties of a private origin, today assigned to the college-university of Santo Tomás, to the establishment which it organizes, without considering the religious corporation of the Dominicans, or by infringing in any other manner on the foundation of the said college. Consequently, it cannot make any similar reorganization in that college.2. That, if a ministerial decision shall be dictated contrary to the sacred and inviolable law of the foundation of the college, the most efficacious legal means to oppose the violation of the same and obtain its observance by entreaty would be to bring an ordinary civil suit before the courts of commonlaw, but in order to free the road of the difficulties of this suit it would be advisable to try previously thecontencioso-administrativoappeal, in the time and manner assigned by the law of September 13, 1888.This is our opinion, but we will give place to any other that is better founded.Madrid, October 29, 1890.Doctor E. Montero RiosDoctor German GamazoL. A. Maura1Seeante, pp. 132, 133, also pp. 163–165, note 81.↑2Concerning this court, the first report of the Philippine Taft Commission,Historical resumé of the administration of justice in the Philippine Islands, by Cayetano S. Arellano, chief justice of the supreme court, pp. 228–230, says: “This court—in English, Contentious Court—arose from the establishment of a council of administration in these islands under the provisions of a royal decree of July 4, 1861, which surrounded the governor-general of these islands, who was president of the court, with prominent men who advised him by their votes on consultation. This contentious court consisted of three officials of judiciary, the president and two magistrates appointed by turn among those constituting the personnel of the Audiencia, with the exception of the presidents of the branches and two officials of the administration, who were known as the administrative magistrates; subsequently, by royal decree of the third of June, 1866, the court was reduced to a president and three magistrates. This court took cognizance of suits brought by private persons against the State, whenever they were litigated. Complaints of private individuals against the administration of the State, if not subject to litigation, could, after presentation of appeals to the governor-general of the islands, be taken upon a recourse of complaint to the colonial office in Spain if no relief was obtained under the decision of the governor-general.” A decree of February 7, 1869, provided that the “contentious administrative jurisdiction, which was exercised by the councils of administration of the provinces of the colonies should in the future rest in the territorial audiencias of those provinces; that, for the exercise of this jurisdiction, there should be organized in each Audiencia, as is done here, a department composed of the president of the same and the two presidents of the branches, the representative of the State being the attorney-general. The theory upon which the former organization of this contentious administrative tribunal rested was the administration of the State in respect to its litigation with subjects. The judge-advocate was both judge and litigant at the same time. However, the decree of the seventh of February, 1869, inspired by the principles proclaimed by the revolution, was that these questions should be decided in the same manner as any other issue between private individuals. These suits, as has been seen, were brought in first instance before the Audiencia of the territory; consequently, appeals in second instance lay before the supreme court of justice of Spain. But by the other theory the first instance pertained to the contentious tribunal of the council of administration, and second instance of the council of State of Spain, to which appeals might be taken against decisions of the former court. But this reform, well received, both in Spain and in the colonies, was of short duration, for one of the first acts of the government of the monarchical restoration was the reëstablishment of the contentious court in the same form in which it had existed prior to the reform of the royal decree of the nineteenth of March, 1875.” This court lasted until the end of the Spanish régime.Act 136, enacted by the Philippine Commission June 11, 1901, and in effect since June 16, 1901, provides for the organization of courts in the Philippines. Article 38 of that act reads as follows: “All records, books, papers, causes, actions, proceedings and appeals lodged, deposited, or pending in the existing Audiencia or Supreme Court, or pending by appeal before the Spanish tribunal called ‘Contencioso administrativo’ are transferred to the Supreme Court above provided for, which has the same power and jurisdiction over them as if they had been in the first instance lodged, filed or pending therein, or, in case of appeal, appealed thereto.” SeePublic Laws and Resolutionsof the U. S. Philippine Commission, for quarter ending August 31, 1901.↑ColophonAvailabilityThis eBook is for the use of anyone anywhere at no cost and with almost no restrictions whatsoever. You may copy it, give it away or re-use it under the terms of theProject Gutenberg Licenseincluded with this eBook or online atwww.gutenberg.org.This eBook is produced by the Online Distributed Proofreading Team atwww.pgdp.net.Page scans of this work are available in theThe United States and its Territoriescollection at the University of Michigan, as well as in the Internet Archive (copy1,2).Related Library of Congress catalog page:03006936.Related Open Library catalog page (for source):OL6925491M.Related Open Library catalog page (for work):OL16096239W.Related WorldCat catalog page:651237055.EncodingRevision History2014-04-06 Started.External ReferencesThis Project Gutenberg eBook contains external references. These links may not work for you.CorrectionsThe following corrections have been applied to the text:PageSourceCorrection29ESPANAESPAÑAN.A.maymany72CuraçoaCuraçao101JOSEJOSÉ252[Not in source]”

CONFERENCE ON THE COLLEGE-UNIVERSITY OF SANTO TOMÁS OF MANILA, AND THE DECISION RENDERED BY SEÑORS MONTERO RIOS, GAMAZO, AND MAURA

Conference1. Whether in view of the writ of foundation of the college-university of Santo Tomás, which is enclosed, the ministry has the right to reorganize education therein, without taking account of the religious corporation of the Dominicans.2. Whether, in case of a ministerial resolution, contrary to the native autonomy of the said college, the latter may offer opposition by legal means, and what would be the most efficacious method.DecisionThe foundation of the college of Santo Tomás, which seems to have been commenced under the advocacy of our Lady of the Rosary, in Manila, was ordained by a writ of April 28, 1611, before the notary of his Majesty, Juan Yllán, in order to observe the last will of the deceased archbishop, Fray Miguel de Benavides; and to the new institution were appliedbesides, the few resources which the latter left, and others also modest, which proceeded from the estates of Pablo Rodriguez de Aranjo and Anfrés de Hermosa. There were hopes that new liberalities would augment the capital of so useful a work. Its origin is, then, entirely private.Section 1 of the said foundation spiritualized the properties and their future increases, so that use might be made of them under such concept for the ministry of the college, and the welfare of the souls of the three deceased testators, and of future benefactors. Section 2 entrusted the management to the then or future father provincial of the Order of Preachers of St. Dominic. Section 3 gave the government correction, and instruction of the college to the prior of the convent of that order in Manila. Section 4 allowed the provincial, as patron, to appoint the lecturers who were to give the instruction, and the workmen and helpers necessary for the good administration and for the temporal government, except that if any ecclesiastical or secular person were to endow the college with a large sum, the chapter of the province could give him the patronage, provided that he did not introduce any innovation, contrary to the authority of the father provincial in respect to the provision of lectures, or withdraw the college from the Order and province [of the Preachers], or deprive the prior of the management. Section 5 established that the arts and sciences should always be read and taught in the college by the religious of the province and Order [of the Preachers], and not by any other order, or by seculars. The same was true in regard to the religious pupils, and for the secular collegiates. Section 6 permitted theadmission of bequests, gifts, and other aids weighted with charges of piety, which the convent was to fulfil and observe [levantaria]. Section 7 gave to the provincial chapter the power to make new rules and regulations, both in regard to the distribution and administration of the properties, and in what related to the ministry and instruction, and to appoint a rector. Those rules once made were not to be changed without the special authority and order of his Holiness. Section 10 says: “If at any time, any ecclesiastical or secular prince should try by act and right to exercise any power by way of patronage or in any other manner, in order to try to dispose of the properties and incomes of the said college, or to meddle with the administration and government of it, or hinder and disturb its effect in any way and manner whatever, and by means of any judge or powerful person, or by any other person who may do it, from that time and thenceforth, we apply the said properties and estates with which the said college is founded, and all the others which shall be augmented and applied, and which it shall receive in any manner, to the said province and to the religious of the said order, so that the latter may possess and enjoy as its own properties, acquired by just and right title, all of that property with the said houses and college, and their increases and improvements. We consider this foundation [under such circumstances] as null and void, and as if it had never been made. The said order is charged to be careful to say masses and other benefices and suffrages for the souls of the said archbishop and the others with whose alms and properties this foundation is begun, and all of those who, in the future, in any time and manner,shall leave and apply any other properties to it, so that by this way satisfaction may be given on the part of the said province, for the said alms, to the givers of those alms.”Although the writ of 1611 does not indicate that its signers thought of it, the royal license was inexcusable. According to law i, título iii, book i, ofRecopilación de las leyes de Indias, it was ordered from the time of Felipe II that permission should be petitioned before the building of a church, convent, or hospice, for the conversion and instruction of the natives, and the preaching of the holy gospel. Law ii of título vi, devoted especially to the royal patronage, ordered that no cathedral or parish church, monastery, hospital, or votive church, should be erected, instituted, founded, or constructed in any other pious or religious place, without the express permit of his Majesty. However, law xliii, of the same título, rules that when any person wishes to found a monastery, hospital, hermitage, church, or other pious and charitable work in Indias, from his own property, the will of the founders shall be observed, and the persons appointed and summoned shall have the patronage. The attributes of the royal patronage which declare that “our permission shall be received beforehand for whatever is needed,” shall always be reserved.Royal permission, beyond any doubt, was obtained, although by an indirect method. For law liii, of título xxii, [book i] (which treats of universities and general and private studies in the Yndias) declares that “by the license of the ordinary and governor of the Filipinas Islands, and the decision of the royal Audiencia of those islands, the religious of theOrder of St. Dominic in the city of Manila, founded a college where grammar, arts, and theology were read, in which they placed two religious of each branch, and twenty secular collegiates. Great gain resulted therefrom,” and it is ordered that for the present and so long as his Majesty orders no other thing, “the religious make use of the license which the governor gave them for the foundation.” That was not to be understood “to the prejudice of what was ordained in regard to similar foundations, so that they should not be instituted or commenced without express permission” from the king.With such requirements, respect for the foundation is declared not only by the judicial force of the foundation itself, but also by the above-cited law xliii of título vi; for that respect is equally capable of being required from persons and authorities who are strange to the institution, and from the patrons, administrators, and ministers of the institution itself. The will of such patrons would have no power against the fundamental law whence proceeds their authority. Their end is to preserve and obey that law strictly, and to cause it to be respected by others without any change or violation of it by them. The admissible innovations in the institutions under discussion have the limit and form which were laid down by the foundation. Consequently, therefore, those innovations which might have been made in the patronage, in the administrative management, or in the academical order, provided that they respected that limit and observed the jurisdiction and formality laid down by the writ of 1611, could not be considered as violations, but as faithful applications of the peculiar law of the college.The first part of the conference admits only the following categorical reply: “In the college-university, the ministry has no right to reorganize the instruction.” It has a right, beyond any doubt, to organize the public instruction in Manila, in the manner which it considers most adequate for obtaining the ends of the same. One of the fundamentals which it may adopt could be the elimination [as teachers] of the fathers of the said order. But that will not fall within the college whose foundation we have before us, and the funds and properties of the same cannot be applied totally or partially to the university or college which the government may erect in such manner.The section of reversion, literally copied above, will have its desired effect fully, in the case under consultation (unless permission is given to reconstitute the private institution in regard to the ruling of the writ of 1611), with entire independence of the academical institutions of the state. The disagreement [disyuntiva] would be between this and the reversion of the properties. Therefore, it is sufficient to call to mind the succinct but faithful review which has been made of the cardinal fundamentals of the foundation, in order to have proved that the reorganization of education, which the ministry of the colonies, laying aside all consideration of the community [i.e., of the Dominicans], might order, would wound and destroy in an essential manner, the will of the founders. If that should happen, the province of Santísimo Rosario and the Dominican religious of the province, would not only have the right to recover the properties, and give them the pious application assigned by the section,but also would not have the power to refrain from it, and consent that such properties remain applied to the needs of the teaching institution reorganized by the government. The patrons of a charitable fund, or any other permanent foundation, can never convert the authority of such contrary to the observance and purity of the institution confided to their care. The acts of the patrons, contrary to the foundation, possess the vice of nullity.The lawyers undersigned have no exact and minute information of the vicissitudes which the college-university has experienced from 1611 to the present day. Comparing alone the royal decree of October 29, 1875, which reorganized the instruction of the said college with the writ of its primitive foundation, it appears that some rulings of the former are at variance with the latter: for example, article 3, which declares that the orders, plans, programs, and regulations, which emanate from the ministry and in that case from the governor-general, are obligatory for the organization and rule of education; article 6, and the following ones which allowed entrance to secular professors and defined their emoluments and fees; article 11, which reserved to the ministry the power of fixing the fees of matriculation, degrees, titles, and certificates; and article 13, which obliged the rector to render an annual account to the royal vice-patron of the emoluments and expenses of the university, the order supplying the deficit resulting. But we are not consulting as to the greater or less legal stability of the present condition of the institution or if we were treating of it, it would not be within our province to disavow that in other things of great importance, thegovernment still respected the fundamentals of the foundation, and that the concessions which were made in 1875 in exchange for obtaining by entreaty the abolition of the decrees of November 6, 1870,1appeared practically corroborated by the lasting agreement of the patrons and of those summoned to obtain the properties by virtue of the clause of reversion, although in strict rigor of law the document of the foundation ought to take precedence over any act and any submission of its natural guardians.For the concrete matter of our opinion, we have only to declare that we do not believe that the former more or less extreme mildness of the patrons in the presence of the interference, which rejected the foundation, weakens the actions of the patronage of the college and of the ecclesiastical province favored by the clause of reversion in order to demand the observance of the foundation, if, perchance, the ministry of the colonies, exercising powers which indubitably belong to it, reorganize the instruction of the university without considering the religious community of the Dominicans. Even in the hypothesis of considering as illegal the tolerances or concessions of former times, the foundation, pure and simple, is the criterion and only norm with which the dispute can be adjusted.The second point of the conference offers no difficulty in whatever concerns the existence of a legal means for opposing a resolution of a government contrary to the native autonomy of the college. Leaving aside the attributes of the ministry to direct the services of education as it deems most suitable,whenever they are sustained by the public funds, the opposition, if it limit itself to the use of the properties and funds from private origin, which today endow the institution, would have a legal mean beyond any doubt, to demand the strict observance of the law of foundation.What would this mean be, or which of the two possible means appears more efficacious? Would it be by bringing the complaint before the court ofcontencioso-administrativo2or before the ordinary justice?The law of September 13, 1888, applicable to Filipinas, according to article 4 of its transitory rulings, marks the bound of the jurisdiction of the court ofcontencioso-administrativo. Perhaps the generic notes of article 1 of the said law would be found in a manner suited to the resolution of the ministry. That article would occasion a report [estado]. In what concerns the application of the properties and the incomes of the institution, it would emanate from powers subject to rule, and not discretional, and would wound a preëxisting right ofa certain administrative character. For, besides the original royal permission and that of the protectorate general in regard to the foundations, the public administration has intervened, intertwining the public service of the instruction of that university with the private foundation. But article 4 of the law excepts the questions of a civil nature, and of the competency of the ordinary jurisdiction, the questions in which the right violated may be of a civil character, and also those which emanate from acts in which the administration has taken part as a legal person, or as one subject to rights and obligations. Of a character essentially civil would be the right violated by the hypothetical ministerial decision of which we are treating, reducing to accidental mixtures the ancient connections of the college founded by private persons, with the administration, which was advantageous to the opportunities which the college offered for the service of education. In strict terms one might add that the government, although it would perform judicial acts as a public power, in determining the future system of education, in exchange ought to be considered as a legal person, in so far as it should attempt to obtain by entreaty from the patrons of the college, the aid of the properties and incomes of the legal person incarnate in them. But the notoriously civil character of the laws which are involved in the observance of the foundation of 1611 are sufficient so that we might consider as definitive that the courts of justice would be those summoned to impose on the government respect for the will of the institutors, the owners of the properties with which the college is endowed.But not because we do so understand it (as without vacillation we do understand it), can we advise that thecontencioso-administrativodemand be left out of the claim. Action must be begun in its proper time and manner before the special court, with the intention that on that court rejecting the demand, as outside its peculiar jurisdiction, it would leave out of all doubt the jurisdiction of the common court. In this manner, it is probable that the attempt would be made to take advantage of the ambiguity, and maintain that the result of the deliberation had been consented to because of the lack of the other appeal, confusing with episodical and accidental discussions the controversy over the substantial and fundamental matter. The preliminary attempt ofcontencioso-administrativoappeal causes no disgrace to civil actions which have a longer life.In conclusion then, the undersigned believe:1. That, although the ministry of the colonies can alter at its discretion the system of public education in Manila, it has no right to apply the funds and properties of a private origin, today assigned to the college-university of Santo Tomás, to the establishment which it organizes, without considering the religious corporation of the Dominicans, or by infringing in any other manner on the foundation of the said college. Consequently, it cannot make any similar reorganization in that college.2. That, if a ministerial decision shall be dictated contrary to the sacred and inviolable law of the foundation of the college, the most efficacious legal means to oppose the violation of the same and obtain its observance by entreaty would be to bring an ordinary civil suit before the courts of commonlaw, but in order to free the road of the difficulties of this suit it would be advisable to try previously thecontencioso-administrativoappeal, in the time and manner assigned by the law of September 13, 1888.This is our opinion, but we will give place to any other that is better founded.Madrid, October 29, 1890.Doctor E. Montero RiosDoctor German GamazoL. A. Maura

Conference

1. Whether in view of the writ of foundation of the college-university of Santo Tomás, which is enclosed, the ministry has the right to reorganize education therein, without taking account of the religious corporation of the Dominicans.

2. Whether, in case of a ministerial resolution, contrary to the native autonomy of the said college, the latter may offer opposition by legal means, and what would be the most efficacious method.

Decision

The foundation of the college of Santo Tomás, which seems to have been commenced under the advocacy of our Lady of the Rosary, in Manila, was ordained by a writ of April 28, 1611, before the notary of his Majesty, Juan Yllán, in order to observe the last will of the deceased archbishop, Fray Miguel de Benavides; and to the new institution were appliedbesides, the few resources which the latter left, and others also modest, which proceeded from the estates of Pablo Rodriguez de Aranjo and Anfrés de Hermosa. There were hopes that new liberalities would augment the capital of so useful a work. Its origin is, then, entirely private.

Section 1 of the said foundation spiritualized the properties and their future increases, so that use might be made of them under such concept for the ministry of the college, and the welfare of the souls of the three deceased testators, and of future benefactors. Section 2 entrusted the management to the then or future father provincial of the Order of Preachers of St. Dominic. Section 3 gave the government correction, and instruction of the college to the prior of the convent of that order in Manila. Section 4 allowed the provincial, as patron, to appoint the lecturers who were to give the instruction, and the workmen and helpers necessary for the good administration and for the temporal government, except that if any ecclesiastical or secular person were to endow the college with a large sum, the chapter of the province could give him the patronage, provided that he did not introduce any innovation, contrary to the authority of the father provincial in respect to the provision of lectures, or withdraw the college from the Order and province [of the Preachers], or deprive the prior of the management. Section 5 established that the arts and sciences should always be read and taught in the college by the religious of the province and Order [of the Preachers], and not by any other order, or by seculars. The same was true in regard to the religious pupils, and for the secular collegiates. Section 6 permitted theadmission of bequests, gifts, and other aids weighted with charges of piety, which the convent was to fulfil and observe [levantaria]. Section 7 gave to the provincial chapter the power to make new rules and regulations, both in regard to the distribution and administration of the properties, and in what related to the ministry and instruction, and to appoint a rector. Those rules once made were not to be changed without the special authority and order of his Holiness. Section 10 says: “If at any time, any ecclesiastical or secular prince should try by act and right to exercise any power by way of patronage or in any other manner, in order to try to dispose of the properties and incomes of the said college, or to meddle with the administration and government of it, or hinder and disturb its effect in any way and manner whatever, and by means of any judge or powerful person, or by any other person who may do it, from that time and thenceforth, we apply the said properties and estates with which the said college is founded, and all the others which shall be augmented and applied, and which it shall receive in any manner, to the said province and to the religious of the said order, so that the latter may possess and enjoy as its own properties, acquired by just and right title, all of that property with the said houses and college, and their increases and improvements. We consider this foundation [under such circumstances] as null and void, and as if it had never been made. The said order is charged to be careful to say masses and other benefices and suffrages for the souls of the said archbishop and the others with whose alms and properties this foundation is begun, and all of those who, in the future, in any time and manner,shall leave and apply any other properties to it, so that by this way satisfaction may be given on the part of the said province, for the said alms, to the givers of those alms.”

Although the writ of 1611 does not indicate that its signers thought of it, the royal license was inexcusable. According to law i, título iii, book i, ofRecopilación de las leyes de Indias, it was ordered from the time of Felipe II that permission should be petitioned before the building of a church, convent, or hospice, for the conversion and instruction of the natives, and the preaching of the holy gospel. Law ii of título vi, devoted especially to the royal patronage, ordered that no cathedral or parish church, monastery, hospital, or votive church, should be erected, instituted, founded, or constructed in any other pious or religious place, without the express permit of his Majesty. However, law xliii, of the same título, rules that when any person wishes to found a monastery, hospital, hermitage, church, or other pious and charitable work in Indias, from his own property, the will of the founders shall be observed, and the persons appointed and summoned shall have the patronage. The attributes of the royal patronage which declare that “our permission shall be received beforehand for whatever is needed,” shall always be reserved.

Royal permission, beyond any doubt, was obtained, although by an indirect method. For law liii, of título xxii, [book i] (which treats of universities and general and private studies in the Yndias) declares that “by the license of the ordinary and governor of the Filipinas Islands, and the decision of the royal Audiencia of those islands, the religious of theOrder of St. Dominic in the city of Manila, founded a college where grammar, arts, and theology were read, in which they placed two religious of each branch, and twenty secular collegiates. Great gain resulted therefrom,” and it is ordered that for the present and so long as his Majesty orders no other thing, “the religious make use of the license which the governor gave them for the foundation.” That was not to be understood “to the prejudice of what was ordained in regard to similar foundations, so that they should not be instituted or commenced without express permission” from the king.

With such requirements, respect for the foundation is declared not only by the judicial force of the foundation itself, but also by the above-cited law xliii of título vi; for that respect is equally capable of being required from persons and authorities who are strange to the institution, and from the patrons, administrators, and ministers of the institution itself. The will of such patrons would have no power against the fundamental law whence proceeds their authority. Their end is to preserve and obey that law strictly, and to cause it to be respected by others without any change or violation of it by them. The admissible innovations in the institutions under discussion have the limit and form which were laid down by the foundation. Consequently, therefore, those innovations which might have been made in the patronage, in the administrative management, or in the academical order, provided that they respected that limit and observed the jurisdiction and formality laid down by the writ of 1611, could not be considered as violations, but as faithful applications of the peculiar law of the college.

The first part of the conference admits only the following categorical reply: “In the college-university, the ministry has no right to reorganize the instruction.” It has a right, beyond any doubt, to organize the public instruction in Manila, in the manner which it considers most adequate for obtaining the ends of the same. One of the fundamentals which it may adopt could be the elimination [as teachers] of the fathers of the said order. But that will not fall within the college whose foundation we have before us, and the funds and properties of the same cannot be applied totally or partially to the university or college which the government may erect in such manner.

The section of reversion, literally copied above, will have its desired effect fully, in the case under consultation (unless permission is given to reconstitute the private institution in regard to the ruling of the writ of 1611), with entire independence of the academical institutions of the state. The disagreement [disyuntiva] would be between this and the reversion of the properties. Therefore, it is sufficient to call to mind the succinct but faithful review which has been made of the cardinal fundamentals of the foundation, in order to have proved that the reorganization of education, which the ministry of the colonies, laying aside all consideration of the community [i.e., of the Dominicans], might order, would wound and destroy in an essential manner, the will of the founders. If that should happen, the province of Santísimo Rosario and the Dominican religious of the province, would not only have the right to recover the properties, and give them the pious application assigned by the section,but also would not have the power to refrain from it, and consent that such properties remain applied to the needs of the teaching institution reorganized by the government. The patrons of a charitable fund, or any other permanent foundation, can never convert the authority of such contrary to the observance and purity of the institution confided to their care. The acts of the patrons, contrary to the foundation, possess the vice of nullity.

The lawyers undersigned have no exact and minute information of the vicissitudes which the college-university has experienced from 1611 to the present day. Comparing alone the royal decree of October 29, 1875, which reorganized the instruction of the said college with the writ of its primitive foundation, it appears that some rulings of the former are at variance with the latter: for example, article 3, which declares that the orders, plans, programs, and regulations, which emanate from the ministry and in that case from the governor-general, are obligatory for the organization and rule of education; article 6, and the following ones which allowed entrance to secular professors and defined their emoluments and fees; article 11, which reserved to the ministry the power of fixing the fees of matriculation, degrees, titles, and certificates; and article 13, which obliged the rector to render an annual account to the royal vice-patron of the emoluments and expenses of the university, the order supplying the deficit resulting. But we are not consulting as to the greater or less legal stability of the present condition of the institution or if we were treating of it, it would not be within our province to disavow that in other things of great importance, thegovernment still respected the fundamentals of the foundation, and that the concessions which were made in 1875 in exchange for obtaining by entreaty the abolition of the decrees of November 6, 1870,1appeared practically corroborated by the lasting agreement of the patrons and of those summoned to obtain the properties by virtue of the clause of reversion, although in strict rigor of law the document of the foundation ought to take precedence over any act and any submission of its natural guardians.

For the concrete matter of our opinion, we have only to declare that we do not believe that the former more or less extreme mildness of the patrons in the presence of the interference, which rejected the foundation, weakens the actions of the patronage of the college and of the ecclesiastical province favored by the clause of reversion in order to demand the observance of the foundation, if, perchance, the ministry of the colonies, exercising powers which indubitably belong to it, reorganize the instruction of the university without considering the religious community of the Dominicans. Even in the hypothesis of considering as illegal the tolerances or concessions of former times, the foundation, pure and simple, is the criterion and only norm with which the dispute can be adjusted.

The second point of the conference offers no difficulty in whatever concerns the existence of a legal means for opposing a resolution of a government contrary to the native autonomy of the college. Leaving aside the attributes of the ministry to direct the services of education as it deems most suitable,whenever they are sustained by the public funds, the opposition, if it limit itself to the use of the properties and funds from private origin, which today endow the institution, would have a legal mean beyond any doubt, to demand the strict observance of the law of foundation.

What would this mean be, or which of the two possible means appears more efficacious? Would it be by bringing the complaint before the court ofcontencioso-administrativo2or before the ordinary justice?

The law of September 13, 1888, applicable to Filipinas, according to article 4 of its transitory rulings, marks the bound of the jurisdiction of the court ofcontencioso-administrativo. Perhaps the generic notes of article 1 of the said law would be found in a manner suited to the resolution of the ministry. That article would occasion a report [estado]. In what concerns the application of the properties and the incomes of the institution, it would emanate from powers subject to rule, and not discretional, and would wound a preëxisting right ofa certain administrative character. For, besides the original royal permission and that of the protectorate general in regard to the foundations, the public administration has intervened, intertwining the public service of the instruction of that university with the private foundation. But article 4 of the law excepts the questions of a civil nature, and of the competency of the ordinary jurisdiction, the questions in which the right violated may be of a civil character, and also those which emanate from acts in which the administration has taken part as a legal person, or as one subject to rights and obligations. Of a character essentially civil would be the right violated by the hypothetical ministerial decision of which we are treating, reducing to accidental mixtures the ancient connections of the college founded by private persons, with the administration, which was advantageous to the opportunities which the college offered for the service of education. In strict terms one might add that the government, although it would perform judicial acts as a public power, in determining the future system of education, in exchange ought to be considered as a legal person, in so far as it should attempt to obtain by entreaty from the patrons of the college, the aid of the properties and incomes of the legal person incarnate in them. But the notoriously civil character of the laws which are involved in the observance of the foundation of 1611 are sufficient so that we might consider as definitive that the courts of justice would be those summoned to impose on the government respect for the will of the institutors, the owners of the properties with which the college is endowed.

But not because we do so understand it (as without vacillation we do understand it), can we advise that thecontencioso-administrativodemand be left out of the claim. Action must be begun in its proper time and manner before the special court, with the intention that on that court rejecting the demand, as outside its peculiar jurisdiction, it would leave out of all doubt the jurisdiction of the common court. In this manner, it is probable that the attempt would be made to take advantage of the ambiguity, and maintain that the result of the deliberation had been consented to because of the lack of the other appeal, confusing with episodical and accidental discussions the controversy over the substantial and fundamental matter. The preliminary attempt ofcontencioso-administrativoappeal causes no disgrace to civil actions which have a longer life.

In conclusion then, the undersigned believe:

1. That, although the ministry of the colonies can alter at its discretion the system of public education in Manila, it has no right to apply the funds and properties of a private origin, today assigned to the college-university of Santo Tomás, to the establishment which it organizes, without considering the religious corporation of the Dominicans, or by infringing in any other manner on the foundation of the said college. Consequently, it cannot make any similar reorganization in that college.

2. That, if a ministerial decision shall be dictated contrary to the sacred and inviolable law of the foundation of the college, the most efficacious legal means to oppose the violation of the same and obtain its observance by entreaty would be to bring an ordinary civil suit before the courts of commonlaw, but in order to free the road of the difficulties of this suit it would be advisable to try previously thecontencioso-administrativoappeal, in the time and manner assigned by the law of September 13, 1888.

This is our opinion, but we will give place to any other that is better founded.

Madrid, October 29, 1890.

Doctor E. Montero RiosDoctor German GamazoL. A. Maura

1Seeante, pp. 132, 133, also pp. 163–165, note 81.↑2Concerning this court, the first report of the Philippine Taft Commission,Historical resumé of the administration of justice in the Philippine Islands, by Cayetano S. Arellano, chief justice of the supreme court, pp. 228–230, says: “This court—in English, Contentious Court—arose from the establishment of a council of administration in these islands under the provisions of a royal decree of July 4, 1861, which surrounded the governor-general of these islands, who was president of the court, with prominent men who advised him by their votes on consultation. This contentious court consisted of three officials of judiciary, the president and two magistrates appointed by turn among those constituting the personnel of the Audiencia, with the exception of the presidents of the branches and two officials of the administration, who were known as the administrative magistrates; subsequently, by royal decree of the third of June, 1866, the court was reduced to a president and three magistrates. This court took cognizance of suits brought by private persons against the State, whenever they were litigated. Complaints of private individuals against the administration of the State, if not subject to litigation, could, after presentation of appeals to the governor-general of the islands, be taken upon a recourse of complaint to the colonial office in Spain if no relief was obtained under the decision of the governor-general.” A decree of February 7, 1869, provided that the “contentious administrative jurisdiction, which was exercised by the councils of administration of the provinces of the colonies should in the future rest in the territorial audiencias of those provinces; that, for the exercise of this jurisdiction, there should be organized in each Audiencia, as is done here, a department composed of the president of the same and the two presidents of the branches, the representative of the State being the attorney-general. The theory upon which the former organization of this contentious administrative tribunal rested was the administration of the State in respect to its litigation with subjects. The judge-advocate was both judge and litigant at the same time. However, the decree of the seventh of February, 1869, inspired by the principles proclaimed by the revolution, was that these questions should be decided in the same manner as any other issue between private individuals. These suits, as has been seen, were brought in first instance before the Audiencia of the territory; consequently, appeals in second instance lay before the supreme court of justice of Spain. But by the other theory the first instance pertained to the contentious tribunal of the council of administration, and second instance of the council of State of Spain, to which appeals might be taken against decisions of the former court. But this reform, well received, both in Spain and in the colonies, was of short duration, for one of the first acts of the government of the monarchical restoration was the reëstablishment of the contentious court in the same form in which it had existed prior to the reform of the royal decree of the nineteenth of March, 1875.” This court lasted until the end of the Spanish régime.Act 136, enacted by the Philippine Commission June 11, 1901, and in effect since June 16, 1901, provides for the organization of courts in the Philippines. Article 38 of that act reads as follows: “All records, books, papers, causes, actions, proceedings and appeals lodged, deposited, or pending in the existing Audiencia or Supreme Court, or pending by appeal before the Spanish tribunal called ‘Contencioso administrativo’ are transferred to the Supreme Court above provided for, which has the same power and jurisdiction over them as if they had been in the first instance lodged, filed or pending therein, or, in case of appeal, appealed thereto.” SeePublic Laws and Resolutionsof the U. S. Philippine Commission, for quarter ending August 31, 1901.↑

1Seeante, pp. 132, 133, also pp. 163–165, note 81.↑

2Concerning this court, the first report of the Philippine Taft Commission,Historical resumé of the administration of justice in the Philippine Islands, by Cayetano S. Arellano, chief justice of the supreme court, pp. 228–230, says: “This court—in English, Contentious Court—arose from the establishment of a council of administration in these islands under the provisions of a royal decree of July 4, 1861, which surrounded the governor-general of these islands, who was president of the court, with prominent men who advised him by their votes on consultation. This contentious court consisted of three officials of judiciary, the president and two magistrates appointed by turn among those constituting the personnel of the Audiencia, with the exception of the presidents of the branches and two officials of the administration, who were known as the administrative magistrates; subsequently, by royal decree of the third of June, 1866, the court was reduced to a president and three magistrates. This court took cognizance of suits brought by private persons against the State, whenever they were litigated. Complaints of private individuals against the administration of the State, if not subject to litigation, could, after presentation of appeals to the governor-general of the islands, be taken upon a recourse of complaint to the colonial office in Spain if no relief was obtained under the decision of the governor-general.” A decree of February 7, 1869, provided that the “contentious administrative jurisdiction, which was exercised by the councils of administration of the provinces of the colonies should in the future rest in the territorial audiencias of those provinces; that, for the exercise of this jurisdiction, there should be organized in each Audiencia, as is done here, a department composed of the president of the same and the two presidents of the branches, the representative of the State being the attorney-general. The theory upon which the former organization of this contentious administrative tribunal rested was the administration of the State in respect to its litigation with subjects. The judge-advocate was both judge and litigant at the same time. However, the decree of the seventh of February, 1869, inspired by the principles proclaimed by the revolution, was that these questions should be decided in the same manner as any other issue between private individuals. These suits, as has been seen, were brought in first instance before the Audiencia of the territory; consequently, appeals in second instance lay before the supreme court of justice of Spain. But by the other theory the first instance pertained to the contentious tribunal of the council of administration, and second instance of the council of State of Spain, to which appeals might be taken against decisions of the former court. But this reform, well received, both in Spain and in the colonies, was of short duration, for one of the first acts of the government of the monarchical restoration was the reëstablishment of the contentious court in the same form in which it had existed prior to the reform of the royal decree of the nineteenth of March, 1875.” This court lasted until the end of the Spanish régime.

Act 136, enacted by the Philippine Commission June 11, 1901, and in effect since June 16, 1901, provides for the organization of courts in the Philippines. Article 38 of that act reads as follows: “All records, books, papers, causes, actions, proceedings and appeals lodged, deposited, or pending in the existing Audiencia or Supreme Court, or pending by appeal before the Spanish tribunal called ‘Contencioso administrativo’ are transferred to the Supreme Court above provided for, which has the same power and jurisdiction over them as if they had been in the first instance lodged, filed or pending therein, or, in case of appeal, appealed thereto.” SeePublic Laws and Resolutionsof the U. S. Philippine Commission, for quarter ending August 31, 1901.↑

ColophonAvailabilityThis eBook is for the use of anyone anywhere at no cost and with almost no restrictions whatsoever. You may copy it, give it away or re-use it under the terms of theProject Gutenberg Licenseincluded with this eBook or online atwww.gutenberg.org.This eBook is produced by the Online Distributed Proofreading Team atwww.pgdp.net.Page scans of this work are available in theThe United States and its Territoriescollection at the University of Michigan, as well as in the Internet Archive (copy1,2).Related Library of Congress catalog page:03006936.Related Open Library catalog page (for source):OL6925491M.Related Open Library catalog page (for work):OL16096239W.Related WorldCat catalog page:651237055.EncodingRevision History2014-04-06 Started.External ReferencesThis Project Gutenberg eBook contains external references. These links may not work for you.CorrectionsThe following corrections have been applied to the text:PageSourceCorrection29ESPANAESPAÑAN.A.maymany72CuraçoaCuraçao101JOSEJOSÉ252[Not in source]”

This eBook is for the use of anyone anywhere at no cost and with almost no restrictions whatsoever. You may copy it, give it away or re-use it under the terms of theProject Gutenberg Licenseincluded with this eBook or online atwww.gutenberg.org.

This eBook is produced by the Online Distributed Proofreading Team atwww.pgdp.net.

Page scans of this work are available in theThe United States and its Territoriescollection at the University of Michigan, as well as in the Internet Archive (copy1,2).

Related Library of Congress catalog page:03006936.

Related Open Library catalog page (for source):OL6925491M.

Related Open Library catalog page (for work):OL16096239W.

Related WorldCat catalog page:651237055.

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