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

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

The Philippine Islands, 1493-1898, Volume 45, 1736 Explorations by early navigators, descriptions of the islands and their peoples, their history and records of the Catholic missions, as related in contemporaneous books and manuscripts, showing the political, economic, commercial and religious conditions of those islands from their earliest relations with European nations to the close of the nineteenth century · 第 117 / 118 题