u~ 673.*F B 13 BUHR B a39015 00031700 lb 0,.t0: J0:w'5. '' X,.: t S: i: 0't,.:i: ~:.^: *00: 0: '\'X' t: i:: t:i~ -:: ^' i X. ',.uw,7:; * '?E V & - )' i; 0 t /' ' I. i i. ~ K~& -...,,~~,-' 2~. ~\'~~~~~~ ~j ~" 1 I~~~pl~ f~ ll;Sk^'^ i - ^ 1 >^Ji! S~~~~~~! -. ~^I 's 1' ' 1:: -:../:,* A. V S.~ ~ ~~~~r, \Ti S e X~~~~~~~~~~~~~~~~~~~~~~~L\ *~~~~; i: S,..z:=~ ti,0 f F~~~~~~~~~~ ~ ~~~~~~~~~-r:ft' ~. — ' 08x, ';-~-~ nf- - rrl\ \,';i ' j' o ff,;: 0 0 0 ':E, \eL X, ' 5 ' i;. SOME INSULAR QUESTIONS. A PAPER IP>Y N. T. BACON. [From the ithle Review, August, I9OI.] SOME INSULAR QUESTIONS. T ItE last three years have brought upon us a swarm of questions which have excited much controversy. They have been disputed as if entirely new, while important precedents bearing on them seem to have been overlooked. Even the recent oracular deliverances of the Supreme Court have failed to settle most of these things, so that at this late date there still seems room for discussion. Up to I898 we had never extended our territory by force. Even after the Mexican war what we took was paid for, inadequate as the price may appear. We paid also for the Philippines, but for many of our best citizens there is reason for lasting regret in the departure from our former policy, by which Porto Rico was taken as spoils of war. This now rises up to plague us. This island, with its dense yet alien population, raises the question whether under our system of government it is possible to carry on colonies. This possibility has been furiously denied by the little group of violent anti-imperialists, and their opponents have been so accustomed to finding the men making up this group to be theoretically right in the various points which they have raised from time to time, that they have failed to offer any answer to this denial, though in our history many things could be brought out in favor of colonization. To many people it will probably come as a surprise that the United States did once for more than a quarter of a century, and after the promulgation of the Monroe Doctrine, maintain without European protest a colony in the Old World, and that at the expiration of that time the United States allowed that colony peaceably to withdraw from its protection, and set itself up as an independent state, the sovereignty of which the United States later acknowledged, a sovereignty which still exists. So far as I know, the right of our Government to maintain such a colony was no more questioned during this period than its right to turn it loose afterward, and it can be safely asserted that no 1 1963 i6o Yale Review. [Aug. one ever expected to see this particular colony ever become a part of the United States, or one of the United States, because it was under the protection of the United States. It lhas been asserted that Lileria never was a colony of the United States, but in point of fact it certainly bore as intimate a relation to the Government of the United States as Connecticut or Rhode Island or Pennsylvania to Great Britain prior to i776. Its history is curious. Its first effective start was obtained when, after failure of the Commiissioners of the American Colonization Society to secure, as individuals, a satisfactory site, a vessel of the United States Navy, the "Alligator," was sent over to aid in the negotiations, and a deed for the site was extorted by her commander at the muzzle of his pistol from a most unwilling vendor in the shape of an African chief, who dlid not desire the profitable slave trade to be interfered with. It is true that this action on the part of Captain Stockton was hardly reprehensible, for it was only (lone when this same chief ordered Stockton and his sole atten(lant put to instant death, but these very vigorous measures by an officer of the United States Navy made the starting point of the new colony. It is true tlhat in his message to Congress of Iecember i7th, 1819, setting forth his intention to establish an agency to look after tlhe Africans recaptured from slavers, Monroe announced his p1urpose not to exercise any power founded on the principle of cotlonization, and that his agents were instructed not to exercise any such )powerl, nor to go on any "other principle than that of perforining benevolent offices," and that "you are not to connect yotur ageincy with the views or plans of the Colonization Society, withl xhich un(ler tlhe law the Governmenlt of the United States has no concern." This lilnitation, however, in practice did no(t amo(unt to much, for almost, if not quite without excel)tion, (Ilring tile wol(le period of (lepen(lence of Iilieria, the position of Go(vernment Agent was given to the individual chosen by the _American Colonization Society to manage the affairs of the col)ony, aiil more than once this agent marched at the head of troops raise(l by him as Colonial Agent to destroy French or Spanish slave-trading stations in tlhe Liberian territory. Moreover the GovNernment furnished the money for transporting tle first colonists to Africa, and they were convoyed by the ).. 190I] 190] Some Insular Qizeslions. United States frigate "Cyane."I There is in the executive docutments of the first session of the 28th Congress a long paper with reference to Liheria. Fromn this it appears that the following instructions were given June i ath, 1822, to Capt. Spence of the "Cyane.' "When you arrive on the coast of Africa, you wvill proceedl for Cape Mlesutralo" (the same as Cape Monitserrado), "andl visit the Colonial estalblishment near this jplace, and afford all the aitl andl sulpiport in your power to I)r. Eli Ayres, the Agent of this Government, and the colonists.'' And later these instructions evere adldlcdl to as followvs: "By recent accounts receivedl fromi Cape Messuradlo on the coast of Africa, it appears that the American settlement there heas heen attacked lhy the natives, anl the safety of the people endlangeredl. Their situation is therefore such as requires immetliate relief and protection. I wish you to remain near them until you shall lbe relievedl or receive further instructions from-ii this tlepartment, and afford to the settlenient andl to the Agent of the Government all the aid andl lprotection in your Iower' anl again April 8th, 1823. 'For the greater security of the settlement madle at lessurado, lhe pleased to station at that lplace, as long as you shall continue on the coast of Africa,,or wh1ile the settlement is en(langceredl by thle niatives, as mlany marines as call conveniently he spared from thle -United States ship 'Cvane' I un(ler youir commanld. From these instructions it applears how strongo a tl(rect interest was had hy the United States GJovel-rInment ill this colony, although it al\ways recog-nized the col )nv as heing unlUer thle g"overliln-ent of the Anierican Colonization Society, a co)n(litinil ()f thingS s very similar to the goovernment of the c lonvy of 1 vlynm()th hy the Plymoutth Company. It was, howev-er, the fact of this gvernlent hy tie society x\hilch eventually led to the independence of Liheria wvhen it came. tt is hig-hly hono-)rahle, hoth to the society and to the United States Governmciient, tht, althougo-h the ViceP resident of the society xvas Secretary o)f State of the United States (Daniel Webster), when troulble arose with Great I-ritain, which necessitatedl the indleenlence of Liheria, there was no attempt to juggle with this doulble relation. Decemhiber 22d, 1 See History of Liberia by J. 11. T. McPherson, Johns Hopkins University Studies, gth series, No. X, Baltimore, 1891, convenient but inaccurate. I62 Yale Reviezv. [Aug. 1842, R. R. Gurley, the Secretary of the American Colonization Society, wrote to Daniel Webster, stating that "the late Secretary of State for the colonies of Great Britain, Lord John Russell assured me of the disposition of Her Majesty's Ministers to consider with candor the claims of Liberia, provided the subject was brought to its notice through the channels of our Government." Two weeks later, on January 5th, T843, Webster wrote to Minister Everett to make representations to Lord Aberdeen on the subject, saying: "I suggest that an inquiry may be instituted into the facts alleged, and that measures may be adopted for the prevention, in future, of any infraction of the rights of these colonists, or any improper interference, on the part of Her Majesty's subjects on the coast of Africa with the interests of the colonial settlement of Liberia." A little later, March 24th, 1843, W\ebster again wrote to Everett a letter in which he says, "Without having passed any laws for their regulation, the American Government takes a deep interest in the welfare of the people of Liberia, and is disposed to extend to them a just degree of countenance and protection"; but as the outcome of a direct inquiry from the British Government whether Liberia was a colony of the United States, Everett wrote December 3oth, 1843, to the Earl of Aberdeen, "The policy of the United States, in reference to extra continental possessions, has not allowed them, had it been otherwise expedient to extend tlat kind of protection to the Liberian settlement, to which colonies are entitled from the motler country by which they are established. It has, in consequence, been compnlelled to rely on its intrinsic right to the common protection of all civilized nations; and, thus far, for the most )part, without leing disappointed." This whole correspondence grew out of a dispute over the Liberian customs regulations. The British Government finally refused to consider binding on its subjects the regulations on trade imposed by the existing government of Liberia; arguing that tle American Colonization Society, composed of mere private individuals, possessed no political powers, and that levying of imposts was the prerogative only of sovereign power, and that this sovereign power had not been assumed (as it might have I9OI] Some Insular Questions. I63 been) by the United States. It was on account of this difficulty that in January, I846, the American Colonization Society recommended the colony of Liberia to declare itself independent, and July 26th, I847, Liberia adopted a declaration of independence and a new constitution, which was ratified in September, and on the first Monday of 1848, under this was inaugurated Joseph J. Roberts as first President of Liberia. The new Government was recognized almost at once by England, France, Prussia and Belgium; but the slavery question, which had formerly prevented the United States Government from claiming the sovereignty over Liberia, interfered again to prevent its recognition by the United States Government until 1862, when slavery ceased to be a political issue. So far we have considered only our practice witl reference to colonization. Let us see what have been the accepted tleories on this subject prior to tle recent excitement. So far as my information goes, the first utterances on this question were in the Virginia legislature in 18oo. The question then came up of a colony for "persons obnoxious to the state or dangerous to the peace of society," meaning free negroes, and the Governor (Monroe) was requested to conimunicate with the President of the United States witli reference to a suitable situation. Monroe seems to have waited till after Jefferson was inaugurated, but he then brought the matter up. On Novenmber 24th, 180o, Jefferson answered M'lonroe's letters of June i5th and November 17th, saying that "'questions would also arise whlether the establishment of such a colony within our limits and to become part of our Union vwould le desiralble to the State of Virginia itself, or to the other States-especially tlose who would be in its vicinity. Could we procure lands beyond the limits of the U S to form a receptacle for these people?" Apparently Jefferson considered colonization lawful and expedient, for he makes no question of it in this letter, and offers to soundl foreign powers for a location; and in 1802 he tried to obtain a suitable situation near Sierra Leone, and failing there tried again in Brazil, but the Louisiana purchase then suggested the possibility of a suitable location in the newly acquired territory, and during the exploration of this it was lost sight of. I64 Yale Review. [Aug. In connection with the Louisiana purchase, however, there comes up the following very interesting note by Gouverneur Morris, whose opinion on the U. S. Constitution is of special value, as he ma(le the draft of it. In writing December 4th, 1803, to Henry W. Livingstone, he remarks, "I perceive now, that I mistook the drift of your inquiry, and which is substantially whether Congress can admit, as a new State, territory wTlich (lid not belong to the United States wvhen the Constitution was made. In my olpinion they cannot. I always thought, when we should acquire Canada and Louisiana it wouldl b1e proper to govern them as provinces, and allow them no voice in our councils. In wording the 3(1 section of the 4th Article, I went as far as circumstances would permit to establish the exclusion." Although a Federalist, Morris was a sulpporter of the Louisiana purcliase, which addls weight to his opinion. The position of the Federalists opposed to Jefferson at this time is shown bly the following extract from a speech in the House ly Roger Griswold of Connecticut. "A new territory and new subjects may undoubtedly le oltained by conquest and by purchase; )but neither the conquest nor the purchase can incor1porate them into the Union. They must remain in the condition of c-olonies and be governed accordingly." An opinion by Jolhn Marshall will perlhaps also be of interest. He says ill the course of a letter, dated Ricllhmond, Decemler 14, 1831, to R. R. Gurley, Secretary of the American Colonization Society, "It is undoubtedly of great importance to retain the countenance and Iprotection of the General Government. Some of our cruisers stationed on tlhe coast of Africa would at the same time interrupt the slave trade-a horrid traffic detested by all goold menl, and would protect the vessels and commerce of the colo{ny from pirates who infest those seas. The power of the Government to offer this aid is not, I believe, contested." The whole letter, from whlich tlis is an extract, will be found interesting. Iln lFelruary, 1843, again the House Committee on Commerce reported on 0African colonization as follows: "The idea of an American colony is not a new one. It is manifestly worthy of the highest consideration. The committee see nothing in IgoI] Some Inszlar Questions. i65 our Constitution to forbid it. We have establishments of this nature, though somewhat anomalous in the character of their dependence upon our Government, in Indian tribes which have been placed beyond the limits of the States in the purchased territory of the Union. The African settlements would require much less exercise of political jurisdiction, much less territorial supervision than is presented in the case of these tribes. They would require aid towards the enlargement of territory, occasional visitation and protection by our naval armament, a guarantee, perhaps, to be secured to tlhen li the influence of our Government, of the rights of neutrality in the wars that may arise between European or American States. They would stand in need of the highest commercial privileges in their intercourse with this, the mother country." It will be noticed that this was written only a few weeks after Webster's letter to Everett quoted above, and probably before an answer was received. This report was laid upon the talle without action, together with a bill accompanying it, intended to make Liberia a government colony, which was the earnest desire of the Colonization Society. The condition herein described of a country dependent on the United States, but not necessarily governed either by the Constitution of tle United States or bv the United States revenue laws, makes a very close parallel with the present condition of things in Porto Rico, since the establishment of free trade with the United States. One other deliverance on this question seems to be worth citing on account of its extreme generality. In the address of the Hon. James M. Wayne, of Georgia, at the 37th anniversary of the American Colonization Society, after (luotting Thomas Jefferson to the effect "that nothing is more to be wished than that the United States would tlemselves make such an establishment:on the coast of Africa,"' le a(lls "no one (loutlts tlhe constitutional right of our Nati(onal Governlment to colonize either a newly discovered country wlhere such a discovery lias been male by our own ships, commercial or military; or that it may purchase territory for the same purpose. It may do so 1by a direct purchase and transfer, under the form of treaty. It may be (lone un(ler the war plower, by treaty, I66 Yale Review. [Aug. in anticipation of what our national defences may suggest to be proper, or we may take territory as one of the incidents of successful war. It may do so under the power to regulate conmmerce." In view of all this, and I have sought in vain though somewhat cursorily for contrary expressions of early date, it would seem as if the doctrine of the inability of the United States to carry on foreign colonies were of very recent growth. Another very difficult question which stood before us has apparently been removed within the last few weeks by the acceptance of the Platt amendment by the Cuban Constitutional Convention. Although the IMonroe Doctrine per se was loubtless not over palatable to European statesmen in general, it seems unquestionable that most of their recent discontent with it has had very reasonable foundation in that by our maintenance of this kind of a protectorate we have been maintaining virtual anarchy. The question of the advisability of setting up one more irresponsible republic, whose sovereignty we pledge ourselves to maintain, has thus seemed a (dulious one, especially where its citizens have had no better preparation for self-government than centuries of endurance of Spanish tyranny. There is little question but that there is more of both real freedom and security in British Guiana than in any of the socalled republics of Latin America; and that it was a real calamity to the inhabitants of Venezuelan Guyana that the British were restrained by the Monroe Doctrine from including under their flag all the territory south of the Orinoco river. That the existence of one dominating power in the American hemisphere has prevented wars of conquest in South America, and thus saved Europe from territorial disputes, is unquestionable, but perhaps for America alone the suffering by war has hardly been less since the Monroe Doctrine was first announced, owing to the endless revolutions, where there is no respect for the rights of minorities, and to the frequent wars between neighbors. Our position has also been made very difficult more than once by the tendency of these irresponsible governments to give offence to European nations, trusting to us to protect them from retaliation. Yet I for one should be very loath to see Cuban senators and 1901] Some Iznsular Queslzons. I67 representatives at Washington, where, it is to be feared, their usefulness would be similar to that of the Hawaiian delegate to the Kansas City convention, who at the time was said to have cast the deciding vote in the committee on platform by which the democrats were driven to support free coinage of silver. A middle course, therefore, by which we are able to interfere to prevent national bankruptcy, and offence against foreign powers, maintaining a kind of police patrol, seems a step in the right direction, for in view of the experience of all other communities escaping from Spanish dominion, no one can place much faith in the capacity of this people to maintain its dignity. If the Monroe Doctrine is to endure, it may beconme necessary to add to it similar control over the foreign policies of all the Governments of Central and South America north of Chili and the Argentine. But for their utter loss of credit it would probably be necessary also to lay restraints on their making loans abroad, for in nothing has their bad faith been more evidlent than in their failure to fulfill their promises to pay. But our most difficult questions seem likely to grow out of the Philippines. That many of the inhabitants of these islands are not more civilized than our Indians, is apparent. It is doubtful whether the best of them are better qualified for self-government than the various Spanish-American populations, and in this instance we have a special comp)lication, as compared with Porto Rico, in the possessions of the friars, whose greed is apparently justly charged with being the main cause of the rising against Spanish rule, which has been maintained against our authority. As President Schurman has said, this is properly a question of real estate, but in a moment of weakness our Commissioners at Paris allowed it to become a political question as well. The clause in the treaty of Paris which is responsible for this complication was an atteml)t on the part of the Spanish Commissioners to commit us to the support of the friars in their long contest with the Filipinos, in which the Spanish power had been unable to sustain them. It reads as follows: "And it is hereby declared that the relinquishment or cession, as the case may be, to which the preceding paragraph refers, cannot in any respect impair the property or rights which by law I68 Yale Review. [Aug. belong to the peaceful possession of property of all kinds, of provinces, municipalities, public or private establishments, ecclesiastical or civic bodies, or any other associations having legal capacity to acquire and possess property in the aforesaid territories renounced or ceded, or of private individuals, of whatsoever nationality such individuals may be." This clause, which only explicitly states rights which would implicitly have existed without such stipulation, forms the basis of all the complaints about establishment of the Roman Catholic religion, and of our upholding the friars as against the Filipinos. Let us examine this in detail. To begin with, it can be argued legitimately that this stipulation supersedes the ordinary principles of law which otherwise would have held, and that we therefore have here an enabling clause permitting us by special treaty to do those things which are not expressly stipulated against. This clause especially stipulates that we must not impair rights which by law belong to the peaceful possession of property. It therefore seems that those rights, which were even then in process of dispute by force of arms, are especially excepted from what woul(l otherwise have been a general implication, and so are liable to be set aside in any composition between ourselves and these same Filipinos. At tlhe (late at which the treaty took effect the insurgents were in control of all the Philippine Islands outside of the American lines surroulnding Cavite and Manila, so that very little would fail to fall ulller tle exception. It should be noted that this dispute was between tle friars and the insurgents, and ill no wise between them and the Roman Catholic Church, in thie communiiiion of which Intost of them remain even while actively engage(l in figlting against tile religious orders, who appear to them, as they appear to ma1ly, if not mlost, Ronman Catholics in tle United States, as at best useless drones. It seemns as if a very summary methodl of dealing with this probllem were her e at handl, ibut tllere is a consideration of a (lifferent kind which shouldl not be overlooked. This is as to tle kind of righlts 1v whlich tle I)roplerty of tlle friars in the Plilillppine Islanlds is held. Tlie various monastic orders holding )roplerty in dispute in the llilippines are alluded to in the treaty 1901] Some Iinsular Questions. I69 as ecclesiastical bodies. Ecclesia is the name under which the Church of Christ has been known to itself since the earliest times. It is remarkable in the teaching of Christ that formulas almost never appear, but that His teaching was by instances from which principles could be developed. When, therefore, He said that "Ma1l was not made for the Sabbath, but the Sabbath for man," he laid down a principle which mnust be accepted as fundamental, especially in regard to ecclesiastical bodies, and one of which a court of law should take cognizance, namely, that the fundamental law of every religious association is that it is to act for the benefit of the people among whom it exists. The largest estates in these islands belonging to religious orders are held by the Augustines, an order of mendicant friars for whom the special rule of their order is poverty. The same rule holds for the Dominicans and the Franciscans, who also have large possessions there, and, as far as has yet appeared, for all the other or(lers represented in the Philippines. It therefore appears that the fundamental rule of tieir orders as well as the general principles of ecclesiastical institutions, that they exist for the benefit of mankinl, and not mankind for them, forbids their holding property for their own benefit, and it naturally follows that the immense riches held by them are trust funds for the benefit of the Philippine islanders. it is very interesting to see by the article on tile formation of the Philippine people in the number of the YATE RIlVIEW for May, I9oI, that Philip II picked out these religious orders to be sent to the Philippines to convert the natives, because, owing to their vows of poverty and obedience, he thought that they wotuld show greater disinterestedness and zeal. It is even related of the Franciscans that in the early (lays in the Philippines they practiced strict poverty and invariably went barefoot. Tlhe Philippine rising seems to have been originally an armed protest (no other being heeded by Spanish courts under ecclesiastical domination) against conversion by the friars of trust funds place(l in tleir hands. It is, mioreover, believed that mIuch of this l)prol)erty has leen oltained as death-b)ed gifts by threats of refusal of absolution an(d other processes which our courts w(ould instantly qualify as unldue influence, and that a 12 17o Yale Review. [Aug. large proportion of the proceeds has not even been spent in the Philippines, but has been sent to Rome as "Peter's pence," to maintain there the splendor of the papal court. Any one who has seen the wealth of jewels and pageantry at a Roman religious festival will recognize one reason why of independent Roman Catllolic c(untries hardly one in four is thoroughly solvent, and why those whiclh are, have sul)pressed( most of the monasteries existin1g in them.n As un(ler the treaty the question becomes one of the "property or -righlts wllicll by law l)elong o th te p)eaceful possession of property of all kinds, of lrovillces, municipalities, pul)lic or private estallishments, ecclesiastical or civic bodlies, or any associations having legal caplacity to acquire andl pCssess property in the aforesaid territories renouncled or ce(le(l, or of private individuals of wlhatsoecver natiolnality such individuals may )be," let us see wlhat is the law )coverilng ecclesiastical bo(lies. Sonie cleven years algo tlhe Supreme Court of the United States finlally t(lci(led tli case of Io(mney versus tlle United States. This case ari-se Cout of mlisuse of fundts anlld )powers by an ecclesiastical or'gaiiiat ionl, whlich caimle into our jurisdiction, from under what w\s virtually Spanish law, by tle cession of territory to us after the walr witl Mlexico; so, that it lias some curious points of colrres1( o(ldence witll tlie present case. It sholuld likewise be n(ite(l that the case was ()ne s wlich involve(l no questions of relig1i(,us 1elief or creed, but tl(at it grew out of tlhe misdeeds of an ecclesiastical corpolration whlich ihad sllowed itself at least as s(1ulless as tlie most -graspingl trust.,\s tlis (lccisio(in bearls also (,1 tle qluestiot of (go vernmlent of acqluir(ed territoiry.v, al as uamy I13)ints,, which 1by virtue of this dlccisi(ol belcatec law, are entirely unfamiliar to miost laymen and \evn to many lawyers, Per-lll)s it lmay be well t(o quote in full tlhe carefully lprielpar-c( syllabus,of it, dlrawvn il un(ler tie eye of one ()f tile jul(lges who coincurre(l in tle dlecisi(on, an(l published in V\(1. 136, 1inite(l States lel(ports. It is as follows: Solvent-BI3elgim, 13olivia, hili, France and Mexico; in a dubious condition —Aiustria,l Italyl and Spain 1; laving committe(i evident acts of insolvency in the last decade —The Argentine Republic, Brazil, United States of Columbia, Costa Rica, Ecuador, Guatemala,, IIaiti, IHonduras, Nicaragua, Paraguay, Peru, Salvador, San Domingo, Uruguay and Venezuela. I90I] Some Insular Queszions. I7I "Syllabus of Romzniicy zvs. United States." The Church of Jesus Christ of Latter Day Saints was incorporated February, 1851, by an act of assembly of the so-called State of Deseret, which was afterwards confirnmed by act of the territorial legislature of Utalh the corporation being a religious one, and its property and funds llel(l for the religi)ous and charitable objects of the society, a plrominenlt olject being the promotion and practice of polygamy, which was l-rohihitecd by the laws of the United States. Congress in 1887 passed an act repealing the act of incorporation, and abrogating the charter; anl (lirecting legal proceedings for seizinlg its property and win(ling upl its affairs: held that (I) The power of Congress over the territories is genleral and plenary, arising from tle right to acqluire tlhem, which right arises from the power of the government to (leclare war and make treaties of peace, and also, i lpart, arising froml the power to make all needful rules anl regulations resl)ecting tile territory or other property of the United States; (2) This plelnary )power exten(ls to) thle legislatures of the Territories, and is uisually expressed in the organic act of eaclh by an express reservation of tlle rig'ht to (lisappl)rove andi annul tle acts of the legislature thereof; (3) Congress had the l)power to relpeal the act of inco(rporation of the Church of Jesus Christ of Latter Day Saints, not only by virtue of its general power over the Territories, btut hy virtue of an express reservation in tlle organic act of the Territory of Utah of the power to (lisalp)rove al(nl annul acts of the legislature; (4) The act of illcorl)orati(on beilng e reealed, and( tlhe cotrporation dlissolve(l, its property, in the absence of any othier lawful ownee-, (levolved to tile tUnited States, subject to be (lisp)sed(l of accor(ling to the princilles appllical)le to properlty (lev(ote(l to religious and chlaritablle uses: the real estate, Iihowever, 1being also subject to a certain c(nd(litio( of folrfeiture lanl csclheatt cnltainlle in the act of 1862; (5) Tlie general systemi o(f com(,mon law 1 an(l Cequity, exceClt as molified by legislatioln, prevalils in the le rrit)ory of UJtah, including therein the law of charitable uses; 1 72 72Yale Revie [Aug. [Aug. (6) By the law of charitable rses, when the particular use designlate(l is tinlawful and contrary to public policy, the charity ipropeerty is subject to be applqliedl ard (irected to lawful objects mol, —st nearly correspo(.n(Iing to its original destination, and will rio.t lbe returned to its (lonors, or their lieirs or representatives, especially wheri it is imp1)ossi 'ble to identify them; (7) The Court of Chancery, in the exercise of its ordinary pow)Nvers over trusts ard charities, may appoint new trustees on the Ia ilrie or (liscbarge of former trustees; and may compel the alpp~lication of charity funds to their appointed rses, if lawful; avid~ by authority of the sovereign power of the state, if not by its Ocwn inherent power. mavy reform the uses when illegal or against puiblic policy by (lirectiug the property to be applied to legal rses, c (rfori-nable, as inear as practicable, to those originally (eclared; (8) in this coun11try the legislature has the power of parens /7 a tria(r in reference to infants, idiots, lunatics, charities, etc., whichI iln 1Eno1glanld is exercisecl lby the crown; and may invest the couirt of chaniceryv with all thle powers necessary to the proper strl)erintenldlence antl dlirection of any gift to charitable uses; (Ip) (iolngress, as the supreme legislature of Utah, had full power andl authority to (lirect the winding uip of the affairs of the Church of Jesus Christ of Latter-Day Saints as a dlefunct corporatiol], with aI viewv to the (lile appropriation of its )roperty to legitimate religious land charitable uses conformable, as near -is practicable to those to which it was originally dledicated. This p)oXwCr is (listiuct from that which may arise from the forfeittire antl escheat of the p)roperty undler the act of 1862 (i o) The pretence of religioris belief cannot (leprive Congress of the pl)owe to prohibit polcygamy and all other open offences agyainist the enlightenend sentimrient of mankind.' The far-reaching character of this (ecision becomes the more (evdlent when we consider that the practice of polygamy was only madtle al off-Cce ao-allt tile ~la-ws of the United States in 1o02, years after the charter of this Church hlad been confirmed by the territorial leg-islature of Utah, and that tlis charter was not repealed till twenty-five years after the law prohibiting, polygam-y, which was not nientionedl as an object of the society in the charter. thorioh there is a veiled allusion to it. Moreover, the 190i] Some Insilar Queslions. 1 71" property of this corporation, as shown by the defence, did not even stantl in its own name, but was taken by the United States authorities out of the hands of trustees to whom it had been transferred in anticipation of liostile moves. it was even argued by the defence that it never had acquiredl property in its own name. The last five headls of the syllabus pa-rticularly interest us with their (loctrine concerning reli io0us and charitable funds. The statenient under the sixth head, shoxving that funds may be divertedl to cognate uses where the particular use designated for such funds "is unlawful and contrary to public policy," is immensely strenogthenied by the statement undler the seventh head that the courts may alpoint new trustees wN-here 1(1d ones have been utinfaithful, and may compel the application of funds to their uses if lawful, and "may reform the uses when illegal or againlst public policy." There is very little qulestion that maintenance of mionastic establishments is much against our present Public policy, whicCh is to Iacify the Filipinos, so that by our law a plain path seemes (clen for the use of this great endowment for schools (as xvas suggested by the Supreme Court for the funds of the Mornion Church), asylumns and hospitals in the Philippine islands. Separate iprovision was lnadle under the Spanish rule for the nmaintenance ol public vorship, so that the Roman Catholic Church as such has no valid cl-airn on these funds, and it is again contrary to our public l)olicy to have any connection wxith religTious affairs except as morals are concerned, so that they cannot Ibe llsedl for any sectarian purp )sCes5 Unquestionably somje provision oiught to be malne out of them for such monks as have beconie inll acitated for earningm- their living, and desire to co-)ntintue az monastic life, hut nio niew novices onoht to he adlnlltte(l to take the places of those vho (lie. Such provision was made wvhen i I eurv VI.Ii abolished the monvrasteries in Eng-land, alld the cry of sl)oli1ation1 whi11ch an )se from his action had little justificationl. Study of the grants of abbey lands shows that they were geucrally so eucumbered Nwith. pensions to former inm11ates of the convents as to have yielded scarcely any niet rev\,,enue to the nominal oweners for meany years. Simnilar arrangements were also made wheen the Swiss convents w-ere suppressed between 184o and 1848.. 174 Yale Rcviez. [Aug. Another strong point comes out under the tenth head, namely, that "tlie )retence of religious belief cannot deprive Congress of the pi)(wer to prohilit polygamy and all other open offences against the enlightened sentiment of mankind." It would be easy to show by the action of the most enlightened countries that tlhe monastic (orders are such an offence, though one whiclh has lbeen frequently tolerated, but still one which has been put (lo:)n Imore tlhan once in nearly all Romlan Catholic countries. In 1 538 a committee of car(linals appointed by Pope Paul III to lo1ok into the troublels wllich had just brought on the Reformationl, reported as follows: "Another abuse which needs correction is in the religious ordlers, lbecause they llave (leteriorated to stuch an extent that tley are a grave scanldal to seculars, and do the greatest harm by tileir example. AWe are of opinion that they should all be a)()lishle(ld no(t so as to injure anyollne, but by forbidding them to receive lnovices; for ill tlis wise they can be quickly done iawav w\itli w\ithllot wrolng to any one." Tlie I'Pl)e was not 1)(old enolugl to follow tllis advice, but in 1780 Joseillh Ii (lissolve(l the mnent(licant ordlers in Austria, and sull-ressced tlIe greater numlller (f (clvents tlll(roughlout Iis (domini( )ns. All tihe convents in France were sluppressel bletween 1790 and 179(; little -I'Prttugal (lisso()lvedi abIlut five hundlred in T834, and early il tlCe next ayear Spain (lissolvedl a)botut nine hundred, while a secoC1(1 law ()f the saime year ab()tlishled tlhe rest. It seems a fair (ucesti( on wlethtr thl(ose in thle P hilil)pinles hlae lnot b)een existing llerely ly tooleranlce siince 1that (late. Between 184o and 1848 tilev were -almost exterminated il Switzerland, andl tlhe restoratioln (0, (o1l1 cion vets and the found(ling of new on)es were forever forblidden bv tile nlew constitutiton adopted in Switzerland in 1848. F inally il Sarl-inia the convents were sutl)pressed in 866, and tlheir flunls coonfiscate(l bly lawN and il 1873. shortly after the cop)ll)lete u1niicattion of IItalv, this action was extended to the whoIle king(ldotll, resulting in the closing of a total of 2,255 such institutions. The mixed feelings with which such action was I901] Some Insular Queslions. I75 regarded, even by the head of the Church, was well expressed in the remark concerning it by Pope Pius IX to an English Roman Catholic bishop, "It was the devil's work; but the good God will turn it into a l)lessing, since their destruction was the only reform possible to them." They were abolished early in the XIXth century in Mexico, and by sundry other Latin American countries. It is a curious fact that to-day their strongest hold is in Protestant countries. In the opinion l)y Justice Bra(lley, which is summned up in the syllabus given above, there are a numbler of points worthy of being quoted in detail. He says for instance on p1age 48, "It is a matter of pulblic notoriety that the religious and charitable uses intend(led to b)e sulbserved and )promoted are the inculcation and sl)rea(l of tlhe ldoctrines and usages of the Mormon Churcha crime against the laws and abhorrent to the sentiments and feelings of the civilized world-it is contrary to the slpirit of Christianity, an(d of the civilization which Clristianlity h1as produced in tlhe western worl(. The (Itqestiou, tlerefore, is, whether the pr(om(tioon of such a nef-arious system amnl 1lractice, s,) repulgnant to our laws and to the )-inciples of our civilization, is to be allowed to continue ly sanctiotn of the governllmelnt itself.' The enforcement of celilacy is to be sure lnot so immediately (langerous to the welfare of the coilmmunity as tlhat of )poilygany, but the maintenance i illeness of larg-e nlumblers of mlen tunder such rules as tlhose (o tlie 1n1( nastic or(lers, as we lhave seen above, has beein regar(led ly alnliost every lRl oman Catliolic (givernlment in Europe as so dlangero-ts as to make thllir suippression a(lvisable, so that we can hardly be criticisedl if, follbowi-ng the prece(lent set by Spain itself, we treat these organizations ars replugnant to our laws and(l t h tle prilnciples of olur civilizatiotn. In speakingll of the possessions of tlhe Mll-rmn3n Church, Judge Bradley goes onl to say, "Thlle property in Cluesti(on has leen dledlicate(l to publlic and charitable uses. It matters n )t whether it is the )pro(luct of private contrilbutions, made ldurillg the course of half a century, or of taxes imlposed( uIpon tlhe l)eople, or, etc., the principles of tile law of cliarities are tnit cotilfine(l to a particular people )or nation, 1but )prevail in all civilized cotuntries pervaded by the spirit of Christianity. They are foundl ibl)ed(ded in the 176 Y7ale Review. [Aug. civil law of Rome, in the laws of European nations, and especially in the laws of that nation from which our institutions are derived. A leading anld prominent principle prevailing in them all is, that property devoted to a charitable and worthy object, promotive of the public good, shall be applied to the purposes of its dedication, and protected from spoliation and from diversion to other olbjects. Though devoted to a particular use, it is considered as given to the publlic, and is, therefore, taken under the guardianship of the law. If it cannot be applied to the particular use for which it was intendled, either because the objects to be subserved have failed, or because they have become unlawful and repugnant to the lublic policy of the state, it will b)e applied to some object of kindred character, so as to fulfil in substance, if not in manner and form, the purpose of its consecration." The words of the opinion just cited, "because the objects to be subserved have failed, or bcctause they have become unlawful and repugnant to the public policy of the state," show how great a control is exercised by the courts over such funds, since their destination may be altered not only because their object was originally repugnant to our p)olicy, but also if, in consequence of some future change in our policy, this object should become repugnant to its princil)les. In support of this opinion Judge Bradley cites not only Lord Chief Justice Wilmot of England as to the "distinction made between superstitious uses and mistaken charitable uses. RBy mistaken I mean sucl as are repugnant to that sound constitutional policy which controls the interest, wills and wishes of in(livi(luals when they clash with the interest an(l safety of the wihole coimmunity.... But where property is given to mistaken claritable uses, these courts distinguish bletween the charity and the use.... varying the use." The court quotes also Donmat, the French jurist, as saying, "If a pious legacy were (lestined to some use which could not have its effect, as if a testator had left a legacy for building a church for a parish, or an apartment in an hospital, and it happened, either that before his death the said church, or the said apartment, lhad b)een built out of some other fund, or that it was noways necessary or useful, the legacy would not for all that remain without any use; but it would be laid out on other works of 1901] Some Insular Questions. 77 piety for that parish, or for that hospital, according to the directions that should be given in this matter by the persons to whom this function should belong." This quotation of foreign law, which by its incorporation in this important decision obtains the force of law in our country, seems to have a most important bearing. Probably few would be found, even among enlightened Roman Catholics, to maintain that in view of the pronounced prejudice against them in the Philippine Islands, the monasteries there were either necessary or useful. This quotation is also important as showing that these funds, thus placed in the hands of the monastic orders, do not properly become the property of the orders at large, so that, in case of suppression of the monasteries, the funds should not be withdrawn by the generals of these orders for use either at Rome, or in other parts of the world, but should be used for other public uses in the Philippine Islands themselves. The opinion goes on to state as follows: "By the Spanish law, whatever was given to the service of God became incapable of private ownership, being held by the clergy as guardians or trustees; and any part not required for their own support was devoted to works of piety, such as feeding and clothing the poor, supporting orphans, marrying poor virgins, redeeming captives and the like." From this it plainly.appears that, even by Spanish law, in case the orders are forbidlden to introduce new novices, as was suggested by the committee of cardillals to Pope Paul III, all the funds which would thus be no longer necessary for the support of the monks, would become available for such public purposes as the Government should see fit to apply them to, and this law also, by incorporation in this decision, has become binding on our courts. Moreover, it certainly lies within the province of the civil power to prevent the perpetuation of orders of mendicants of any kind in the same manner in which it is at liberty to suppress mendicants of any character. It seems, therefore, as if the sole question of real difficulty in this matter lay in the property obtained by the orders through undue influence. By the Spanish laxw just quoted it is plain that the intent was to enalle the clergy to maintain their hold on their gains, no matter how ill-gotten, but it is also evident that our courts I78 Yale Review. [Aug. would distinguish in a very different manner from the Spanish courts, with reference to what had actually become the property of the Roman Catholic orders, and what was merely unjustly in their possession. In this decision, with reference to the property of the Mormon Church, the court made separate rulings on the personal property and on the real estate. It made no question that the personal property, being indistinguishable from other personal property, should be forfeit to the United States, but with reference to real estate it made an important distinction, considering the lands forfeit, but that they became forfeit to the United States because the United States was the original grantor. It seems then as if a way were open for individual Filipinos from whose ancestors, direct or collateral, gifts of lands had been extorted by undue influence, to recover these by action in the courts. Moreover, it seems very improbable that there would be any complaint by outside parties in case the United States should extend great facilities to all claiming as representatives of those having made gifts to the monastic orders under duress. temnporal or spiritual. Probably nothing would go further toward immediate pacification of the entire Filipino people than the idea that by immediate submission they would stand a chance of recovering rights from1 which they feel themselves defrauded, rights which would be forfeited, if not presented before our courts prior to a given date. N. T. BACON. Peacedalc, R. I. 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