Evening star., 1901-08-09
4 MORT MAIN LAW
Legislation Needed to Govern 1nsular
Church Property.
PROBLEMS IN TIE PHILIPPINES
Early History Of Laws to Restrict
Ecclesiastical Holdings.
THE POWER OF GOVERNMENT

Written for The Evening Star.
1t is said that in view of the troublesome
questions relative to the titles of tho
friars to extensive estates in the Philip
pines Chairman Cooper Of the House COM
mittee on insular affairs has been for
some time engaged in the preparation Of q
mortmaln law for our insular possessions.
The propriety Of such legislation is
thought by those dealing with the subject
to be apparent; but the difficulty which is
met at the Threshold Of the movement is
whether Congress is authorized to pass
such a law under any Of the powers grant
ed to 1t by the Constitution, and whether,
indeed, 1t is not forbidden to pass any law
on the subject, since mortmain laws relate
to religious bodies. For, as Blackstone
says, Purchases in mortmain having been
made chiefly by religious houses. in conse-
quence of which the land became perpetu-
ally inherent in one dead hand, this hath
occasioned the general appellation Of mort
main to such alterations, and the religious
houses themselves to be considered prin-
cipally In forming the statutes of mort
main" A few examples of such laws will
serve to illustrate this point. The thirty
sixth chapter of Magma Charta is COM
monty called the statute of mortmain. 1t
is in these words: 1T shall not be lawful
for any one to give his lands to any relig-
1ous house, and to take the same back to
hold Of the same house. Nor shall it be
lawful for any house Of religion to take
the land of any one, and to lease the same
to him from whom 1t was received. And If
any one from henceforth give any lands
to any religious house and thereupon be
convicted, the gift shall be utterly void"
Another famous mortmain law is the an
cient statute De ReNgiosis, which runs
thus: 1T is ordained that no person, relig-
ious or other, whatsoever he be, shall pre-
sumo to buy or sell, or under color Of gift
or lease, or any other title whatsoever, to
take of any person, or by any other means,
by craft, or engine to appropriate unto
himself any lands or tenements, whereby
such lands and tenements may in anywise
come into mortmain, on pain Of forfeiture
of the same"
The Law of Edward L.
1t appears that King Edward / was the
first Christian prince who passed statute
Of mortmain, and prevented by law the
clergy from making new acquisitions of
land. which by the ecclesiastical canons, they
were forever prohibited from alieating.
His object in passing it was chiefly to pre-
serve the military force of the kingdom.
Both Magma Charta and the Statute De
Religiosis had the common defense In view.
But the more recent statute Of mortmain,
known as George II, had in view not
only the common defense but also "the
alterations of land, tenements or heredita-
ments In mortmain are prohibited or re-
strained by Magma Charta and divers
other wholesome laws, as prejudicial to
and against the common utility" The In
tention was to prevent land coming by
any means into hands where they would be
unalienable. because the unrestricted inter-
change Of property Is of the very highest
Importance to the welfare Of commercial
nation. Again, 1t is important to erect
some permanent barrier against what the
act of George II declares to be public
mischief" which had "of late greatly in
creased by many large and improvident
alterations or dispositions made by Ian
gushing and dying persons or by others,
to uses called charitable, to take place
after their deaths. to the disherison Of their
lawful heirs"
In 1919 Mr.. Wheaton. who was then re-
porter for the Supreme Court Of the United
States, prepared valuable note to the case
of Hart's executors against Baptist Asso-
citation. in which he discussed the subject
of mortmain and charitable uses; and in
which. referring to the statute of George
II, he said: 1T deserves the consideration
Of every wise and enlightened American
legislator. whether provisions similar to
those of this celebrated statute are not
proper to be enacted in this country, with
view to prevent undue influence and i'm
position upon feeble minds in their last
moments, and to check that unhappy pro-
pensity which sometimes is found to exist
under bigoted enthusiasm and. the desire
to gain fame as religious devotee and
benefactor at the expense Of all the nat
uraf claims of blood and parental duty to
children" Whether he regarded Congress
as empowered to enact such law is not
intimated.
But in 1911 President Madison denied the
right of Congress to incorporate a relig-
ious society, and since the statutes Of
mortmain were leveled against religious
houses or corporations 1t Is evident that
he did not believe any power existed in
10, witt religions
at all. President Madison's view has re-
Gently been overruled by the Supreme
Court, but there still exists a question as
to the power of Congress to legislate COR
cerning religious establishments.
1t is considered to be clear, however, that
the Supreme Court has Jurisdiction over
all trusts and uses, and may control re-
ligious corporations as we'll as others. For
in the Mormon Church case 1t was held
that the general system Of common law
and equity, except as modified by legisla-
ton, prevails In the territories of the
United States, including therein the law Of
charitable uses and mortmain. And 1t is
predicted that our courts in dealing with
the subject will be guided by the princi
pie which prevailed in England prior to
the revolution and not by any principle Of
the civil law canon law or any other
principle concealed in dark and remote
antiquity.
The Philippine Situation.
The argument Of the two archbishops In
the case Of the University of st. Thomas
at Manila, before the Philippine commits
sion, was based mainly upon the canon law
and certain concordats between the pope
and the Spanish crown. According to the
report of the Philippine commissioners, "in
support of the claim that the foundation
of the College of San Jose was pious &C.
clesiastical work within the operation Of
the DEGREES Of the council of Trent refer
ences were made TO the definitions Of such
works by writer's on the canon law In de-
scribing the property devoted to them as a
class Of church patrimony.
The authors cited describe as church
patrimony all property destined to succor
the poor and needy. including In Its cate
CORY hospitals, asylums. colleges for the
education and training OF Christians, re-
ligious confraternities, and in general In
stitutions and foundations to works OF
charity and religion. and say that two
things are necessary and sufficient in or
der that the institutions and foundations
be ecclesiastical, and that their properties
pertain to the church; that Is to say, that
they are by full force Of right, pious &C.
clesiastical works: First. that they be
founded with the license and authority Of
the diocesan bishop. and second. that the
foundations of the said institutions have
been made through motives of charity or
religion. or what Is equivalent, that they
have been made with the idea Of promoting