Note 45 — THE COLLEGE OF SAN JOSÉ

The matter was therefore argued before the Commission, pro and con, from time to time between July and October, 1900, and the conclusions announced January 5, 1901. The ecclesiastical authorities took the position that the college is “truly an obra pia, that its trusteeship has always been vested in the Church, as represented by its legal agents either through the Society of Jesus, the kings of Spain as ecclesiastical patron, the clergy of the cathedral, or the university of Santo Tomás, under the direction of the archbishop.” The ecclesiastical argument is that the college “is essentially a religious foundation and therefore the United States have not the right to claim it as public property nor to intervene in its management, since they cannot succeed to the Spanish ecclesiastical patronage, they having proclaimed the separation of Church and State.” It is impossible also for the state to secularize the institution, an act which would be paramount to confiscation.45 Archbishop Nozaleda argues also that the college “is an ecclesiastical obra pia, founded by Esteban Rodriguez de Figueroa, with all the canonical and civil formalities demanded by the legislation in force at that time for such foundation.”46 Again, he says: “The college of San José is an ecclesiastical obra pia, and as such belongs to the patrimony of the Church.” An ecclesiastical obra pia he defines as “any foundation made through motives of religious piety, or with the purpose of exercising Christian charity, with the approbation and authorization of the bishop.”47 Against this Dr. T. H. Pardo de Tavera and others argued before the Philippine Commission that the college of San José was primarily of royal foundation;48 Felipe G. Calderon, a Filipino advocate, and the chief adversary of the ecclesiastics, in his pamphlets, also argued that the college of San José is official in its origin:49 their conclusions being that the civil government has power to intervene in the management of the college.50 The commission, being careful not to intimate any opinion that “should be used by either side in the case to be argued and decided as authority in that tribunal [i.e., the Philippine Supreme Court],” expressed “no other definitive opinion than that the petitioners [i.e., Pardo de Tavera, et al.] have presented a case of sufficient dignity and seriousness to warrant its full consideration by a court of justice.” In the words of the commissioners: “In order to decide the merits of this case, we should probably have to consider and settle a nice question of canonical law, and investigate and discuss the historical and legal relations of the crown of Spain to the head of the Catholic Church. Neither of these questions do we feel competent now to decide with the materials which are before us and with the time at our disposal nor do we need to do so. We are not a court. We are only a legislative body. It is our expressly delegated function in just such cases as this to provide a means for the peaceful and just decision of the issues arising. Had we been able to decide clearly and emphatically that the petitioners had no rights here and that their claims were so flimsy as not to merit the assistance of the legislature in bringing them to adjudication in a court of justice, we might have properly dismissed the petition and taken no action thereon; but we are of opinion, all of us, that the contentions of the petitioners present serious and difficult questions of law, sufficiently doubtful to require that they should be decided by a learned and impartial court of competent jurisdiction, and that it is our duty to make legislative provision for testing the question. If it be true that the United States is either itself the trustee to administer these funds, or occupies the relation of parens patriæ to them, it becomes its duty to provide for their administration by a proper directory, whose first function will be to assert, in the name and authority of the United States, their right to administer the funds of the college against the adverse claims of the person now in charge, who claims to hold under and by virtue of the control over the funds by the Catholic Church; and this legislative action we now propose to take, not thereby intimating an opinion upon the merits of the case, but merely by this means setting in motion the proper machinery for the ultimate decision by a competent tribunal.” The Commission set aside $5,000 in United States money for the payment of the expenses of getting evidence, preparing the record, printing the briefs, and as fees for professional services; and that the case was to be heard before the Philippine Supreme Court, the United States being practically a party in the litigation. Further provision was made in case appeals from that court were to be made to the Supreme Court of the United States, for Congress to so provide in this case. As to the injunctive order of General Otis against the opening of the college, by the rector of the university, it was recommended to the military governor that it be rescinded. The persons appointed to conduct the litigation and to take charge of the college and its estates, should the decision and a decree of the court be in their favor, were as follows: Dr. T. H. Pardo de Tavera; Dr. Charles R. Greenleaf, Leon M. Guerrero, Dr. Manuel Gomez Martinez, and Dr. Frank S. Bourns. The concluding remarks of the Commission are the following: “There has been much popular and political interest in the controversy in which we have now stated our conclusions. The questions considered, however, have not had any political color at all. They have been purely questions of law and proper legal procedure, and so will they be in the court to which they are now sent. The decision of the right to control San José college cannot legitimately be affected by the political feeling which one may have for or against the friars. It is unfortunate that the public should clothe the settlement of an issue purely legal with political significance when it ought not to have and does not have one. But, however this may be, those charged with settling it can pursue only one path, and that is the path of legal right as they see it.”51 Congress provided for appeal to the Supreme Court of the United States on July 1, 1902, under the general terms of Section 10 of the so-called “Philippine Government Act.” A decision in the case had not been handed down in Manila up to the close of September, 1906.52