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
applied besides, 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 the admission 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, of Recopilación 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 the Order 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, the government 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, [169] appeared 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 of contencioso-administrativo [170] or 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 of contencioso-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 of a 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 the contencioso-administrativo
demand 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 of contencioso-administrativo appeal 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 common law, but in order to free the
road of the difficulties of this suit it would be advisable to try
previously the contencioso-administrativo appeal, 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 Rios
Doctor German Gamazo
L. A. Maura