Evening star., 1901-08-09

the poor ana the education OF poor children
to1easr 1a .as same; an authett Which, being a.
be the result Of pious charity. would be a
precedent for giving to religious societies,
- sucn, = iegaa agency In carrying Into
eIsct Ie conpress prS.c hsS ana siyh duty
such institutions It would clearly have the
right to appropriated or confscate their
property ana to abolish them entirely, at
discretion. whoever has-the power to
It Is evident thaU President Madison
meant by the language ab3Fe quoted from
him that such institutions as the arch
bishops describe could NOT be established
necessary and proper Tpr carrying into exc
stitution.
The origin Of such instAutions is pecu-
Rome. It seems that in the beginning GER
tain special detties monopolized the privi-
iege OF being the objects of testamentary
disposition: post PIT. TO the temple or monastery
other chattels might be lawfully bequeath-
eo. Ihese sacred communities were rem
oered by the civil law incapable Of acquir-
ing TO any considerable degree the owner
ed with the same design as the English
statutes OF mortmain 1t was early provided
that no corporate body should take or hold
real estate by virtue of any gift, grant. or
oeVase. m Wit, without either a special privilege
or particular d1spensation from the senate
or emperor, VINO was seldom disposed to
grant theme. The personality Of the
church, and it's capacity to be heir or
iegatee, Is recognized In the Justinian code.
Al hrst 1t was only one among the monopo-
lies known as pious corporations Before
Constanttne's time it was on the same
footing as the College Of the Jews.
Early Practices.
Burns, In his work on ecclesiastical law,
says: 'The constitutions of Justinian en-
acted that the church should dispense all
property bequeathed generally to the poor
or to prisoners, and that charitable be-
quests should always be under the man
agement of the bishops and archbishops.
FIFTY years after the establishment OF the
church by Constantine as licensed cor
poration there was revival OF the mort
main law, restraining among other things,
the prodigality Of bequests by women to
the same law was re-enacted. Among the
monarchs who have been most hostile to
property left In ecclesiastical mortmain
may be mentioned Edward !: Edward II
in Saxony and St. Louis in France Among
the reasons found in the preambies Of
mortma1n statutes and in judicial inter-
pretations OF them are the following: For
the better defense of the realm by keeping
feudal subjects or military resources out
of the possession Of professed monks. who
claim exemption from taxation and mill
tary duty; - for the general utility, by
preserving the free circulation of property
and promoting commerce.: by preventing
land from falling by any means into hands
where they would be unalienable; by en-
couraging donations and legacies to munich
pal institutions; by checking mendicancy
and celibacy and by weakening foreign In
fluence; for preventing improvident
dispositions, made by languishing and dy-
ing persons or by others. to the disherison
Of their lawful heirs I"
An Important Duty.
The House committee on insular affairs
has no more important work before 1t
than the framing of suitable mortmain
law for the Philippines. The Spanish mort
main law Of 1920 was the most rigid, per-
haps, ever enacted in any country. But 1t
would be wholly inapplicable, 1t is thought,
under our form of government; nor could
the provision of the Iconcordat of 1851, be-
tween the pope and the King of Spain, be
recognized as the lazy under our Constitu-
the place Of the Spanish government
party to concordat.! And besides, 1t was
agreed by that concordat that the church
should have the right Of acquisition by any
torship ''in all that it possesses In the
present or should acquire in the future
should be respected: iand that no suppress
sion or fusion should take place without
the intervention Oh tue dutHOTlly VI the
holy see." Equally, inapplicable to the
present situation is considered the covenant
of 1860, because by # the Spanish govern
ment recognized anew, In a formal man.
ner, the full and free right of the church
to acquire, hold and enjoy the usufruct in
ownership, without limitation or reserve.
of all kinds Of property or values"
On the whole, the affair is complicated
and delicate. If Congress has the right to
act at all in this matter, 1t has the right to
do whatever 1t pleases. If 1t has not the
right to act. the Supreme Court has; and II
that court should be governed by the opin-
ion of Chief Justice Marshall In the Bap-
tist Church case, and the reasoning Of the
court in the Mormon Church case. 1t is
expected to pursue the principles laid down
in Magma Charta and the other great re-
medal statutes by which the English peo-
pie endeavored to protect the state against
ecclesiastical encroachment.