ITALIAN CONFISCATION LAWS.
REVIEWED FROM AN AMERICAN STAND-POINT.
BY A LAWYER.
"No state shall pass any ex post facto law, or law impairing the obligation of contracts."[2]
This is indeed a moral law, and has been recognized as such by all civilized nations.
Justice Curtis, in his Life of Webster (vol. i., chap. 7, p. 165) thus notices the decision in the Supreme Court which first gave the scope and meaning of this clause in regard to charters of private corporations:
"The framers of the Constitution of the United States, moved chiefly by the mischiefs created by the preceding legislation of the states, which had made serious encroachments on the rights of property, inserted a clause in that instrument which declared that 'no state shall pass any ex post facto law, or law impairing the obligation of contracts.' The first branch of this clause had always been understood to relate to criminal legislation, the second to legislation affecting civil rights. But before the case of Dartmouth College v. Woodward occurred, there had been no judicial decisions respecting the meaning and scope of the restraint in regard to contracts, excepting that it had more than once been determined by the Supreme Court of the United States that a grant of lands made by a state is a contract within the protection of this provision, and is, therefore, irrevocable. The decisions, however, could go but little way toward the solution of the questions involved in the case of the college. They did, indeed, establish the principle that contracts of the state itself are beyond the reach of subsequent legislation equally with contracts between individuals, and that there are grants of a state that are contracts. But this college stood upon a charter granted by the crown of England before the American Revolution. Was the state of New Hampshire—a sovereign in all respects after the Revolution, and remaining one after the federal constitution, excepting in those respects in which it had subjected its sovereignty to the restraints of that instrument—bound by the contracts of the English crown? Is the grant of a charter of incorporation a contract between the sovereign power and those on whom the charter is bestowed? If an act of incorporation is a contract, is it so in any case but that of a private corporation? Was this college, which was an institution of learning, established for the promotion of education, a private corporation, or was it one of those instruments of government which are at all times under the control and subject to the direction of the legislative power? All these questions were involved in the inquiry, whether the legislative power of the state had been so restrained by the constitution of the United States that it could not alter the charter of this institution, against the will of the trustees, without impairing the obligation of a contract. If this inquiry were to receive an affirmative answer, the constitutional jurisprudence of the United States would embrace a principle of the utmost importance to every similar institution of learning, and to every incorporation then existing, or thereafter to exist, not belonging to the machinery of government as a political instrument....
"On the conclusion of the argument the Chief-Justice (Marshall) intimated that a decision was not to be expected until the next term. It was made in February, 1819, fully confirming the grounds on which Mr. Webster had placed the cause. From this decision, the principle in our constitutional jurisprudence which regards a charter of a private corporation as a contract, and places it under the protection of the Constitution of the United States, takes its date."
We add a passage from Mr. Webster's speech in this case, as quoted by the same author from a letter of Prof. Goodrich, of Yale College, to Rufus Choate:
"This, sir, is my case. It is the case not merely of that humble institution; it is the case of every college in our land. It is more. It is the case of every eleemosynary institution throughout our country—of all those great charities founded by the piety of our ancestors to alleviate human misery and scatter blessings along the pathway of life. It is more! It is, in some sense, the case of every man among us who has property of which he may be stripped, for the question is simply this: Shall our state legislatures be allowed to take that which is not their own, to turn it from its original use, and apply it to such ends or purposes as they in their discretion shall see fit?"
The charitable and religious institutions of Italy and the States of the Church were founded under guarantees as strong at least as those which assured the perpetuity of Dartmouth College, and were entitled to as much immunity from confiscation and intrusion for all coming time.
When a law is in its nature a contract, and absolute rights have vested under that contract, a repeal of the law cannot divest those rights, nor annihilate or impair a title acquired under the law. A grant is a contract according to the meaning given to the word by jurists. A grant is a contract executed, and a party is always estopped by his own grant. A party cannot pronounce his own act or deed invalid, whatever cause may be assigned for its invalidity, and though that party be the legislature of a state. A grant amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A grant from a state should be as much protected as a grant from one individual to another; therefore, a state is as much inhibited from impairing its own contracts, or a contract to which it is a party, as it is from impairing the obligation of contracts between two individuals. A grant once made by the ruling or competent power, creates an indefeasible and irrevocable title. There is no authority or principle which could support the doctrine that such a grant was revocable in its own nature, and held only durante bene placito. For no ruling power, be it kingly, legislative, or otherwise, can repeal a law or grant creating a corporate body, or confirming to them property already acquired under the faith of previous laws or edicts, and by such repeal vest the property in others without the consent or default of the corporators. Such a procedure would be repugnant to the principles of natural justice. A society or order of religious people holding property in common or in solido, may be considered in the character of a private eleemosynary institution endowed with a capacity to take property for objects unconnected with government: it receives gifts or devises, and other private donations bestowed by individuals on the faith of its perpetuity and usefulness—such a corporation not being invested with any political power whatever, or partaking in any degree in the administration of civil government. It is merely an institution or private corporation for general charity. It is established under a charter, which was a contract, to which the donors, the trustees of the corporation, and the governing power were the original parties, and it was granted for a valuable consideration—for the security and disposition of the property necessary for the existence of the community, order, or society.
The legal interest, in every such literary and charitable institution, is in trustees, and to be asserted by them, which they claim or defend on behalf of the society or community for the object of religion, charity, or education, for which they were originally created, and the private donations made. Contracts of this kind, creating such charitable or educational institutions, should be at all times protected by the state, and their rights maintained by the courts administered by a pure and just judiciary. Conquests or revolutions cannot change the rights acquired under such contracts, and no state should by any act transfer the rights of property theretofore acquired, nor transfer from the trustees appointed according to the will of the founders or donors. The will of the state should not be substituted for the will of the donors, or convert an institution, moulded according to the will of its founders, and placed under the control of people of their own selection, into government property. Such action is of course subversive of the original compact on the faith of which the donors invested their gifts, donations, or devises, and is, therefore, repugnant to every idea of honesty and good morals, for enforcing which governments are instituted.
A grant to a private trustee, for the benefit of a particular cestui que trust, or for any special, private, or public charity, cannot be the less a contract because the trustee takes nothing for his own benefit. Nor does a private donation vested in a trustee for objects of a general nature thereby become a public trust, which a government may at its pleasure take from the trustee. A government cannot even revoke a grant of its own funds, when given to a corporation or private person for special uses. It has no other remaining authority but what is judicial to enforce the proper administration of the trust. Nor is such a grant less a contract though no beneficial interest accrues to the possessor. All incorporeal hereditaments, as immunities, dignities, offices, and franchises, are rights deemed valuable in law, and whenever they are the subject of contract or grant they should be held as legal estates. They are held as powers coupled with interests, and consequently are vested rights, and of which the possessors should not be divested by any legislative body without their consent.
Chief-Justice Marshall (in U. S. v. Percheman, 7 Peters 86) says: It is unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country; and that the modern usage of nations, which has become law, would be violated; that sense of justice and right which is acknowledged and felt by the whole civilized world, would be outraged if private property should be generally confiscated and private rights annulled.
Justice Sprague (Amy Warwick, 2 Sprague 150) says: Confiscations of property, not for any use that has been made of it, which go not against an offending thing, but are inflicted for the personal delinquency of the owner, are punitive, and punishment should be inflicted only upon due conviction of personal guilt.
The communities whose rights are now invaded and whose property is confiscated, ought to be protected under the law of nations. For, by this law is understood that code of public instruction which defines the rights and prescribes the duties of nations in their intercourse with each other. The faithful observance of this law is essential to national character and the happiness of mankind. According to Montesquieu, it is founded on the principle that different nations ought to do each other as much good in peace, and as little harm in war, as possible. The most useful and practical part of the law of nations is instituted or positive law, founded on usage, consent, and agreement. It is impossible to separate this law from natural jurisprudence, or to consider that it does not derive much of its force and dignity from the same principle of right reason, the same views of the nature and constitution of man, and the same sanction of divine revelation, as those from which the science of morality is deduced. There is a natural and a positive law of nations. By the former, every state in its relations with other states is bound to conduct itself with justice, good faith, and benevolence; and this application of the law of nature has been called by Vattel the necessary law of nations, because nations are bound by the law of nature to observe it; and it is termed by others the internal law of nations, because it is obligatory upon them in point of conscience.
That eminent jurist, Chancellor Kent, says that the science of public law should not be separated from that of ethics, nor encourage the dangerous suggestion that governments are not strictly bound by the obligations of truth, justice, and humanity in relation to other powers, as they are in the management of their own local concerns. States or bodies politic are to be considered as moral persons, having a public will, capable and free to do right and wrong, inasmuch as they are collections of individuals, each of whom carries with him into the service of the community the same binding law of morality and religion which ought to control his conduct in private life.
The law of nations consists of general principles of right and justice, equally suitable to the government of individuals in a state of natural equality and to the relations and conduct of nations; the conduct of nations should be governed by principles fairly to be deduced from the rights and duties of nations and the nature of moral obligation; and we have the authority of lawyers of antiquity, and of some of the first masters in the modern school of public law, for placing the moral obligations of nations and of individuals on similar grounds, and for considering individual and national morality as parts of one and the same science.
The law of nations, as far as it is founded upon the principles of natural law, is equally binding in every age, and upon all mankind.
The law of nature, by the obligations of which individuals and states are bound, is identical with the will of God, and that will is ascertained by consulting divine revelation, where that is declaratory, or by the application of human reason where revelation is silent. Christianity is an authoritative publication of natural religion, and it is from the sanction which revelation gives to natural law that we must expect respect to be paid to justice between nations. Christianity reveals to us a general system of morality, but the application to the details of practice is often left to be discovered by human reason.
Justice is of perpetual obligation, and is essential to the well-being of every society. The great commonwealth of nations stands in need of law, and observance of faith, and the practice of justice.
If the question was one to be decided by the civil courts according to the American rules concerning rights to property held by ecclesiastical bodies, the points involved might be presented as follows:
1. Where the property which is the subject of controversy is, by the express terms of the deed or will of the donor or other instrument under which it is held, devoted to the teaching, support, or spread of a specific form of religious doctrine and belief.
2. Where the property is held by a religious congregation, which by the nature of its organization is strictly independent of other ecclesiastical associations, and, so far as church government is concerned, owes no fealty or obligation to any higher authority.
3. The third is where the religious congregation or ecclesiastical body holding the property is but a subordinate member of some general church organization in which there are superior ecclesiastical tribunals with a general and ultimate power of control, more or less complete, in some supreme judicatory over the whole membership of that general organization.
Respecting the first of these classes, it does not admit of a rational doubt that an individual or an association of individuals may dedicate property by way of trust to the purpose of sustaining, supporting, and propagating definite religious doctrines or principles, provided that in doing so they violate no law of morality, and give to the instrument by which their purpose is evidenced the formalities which the law requires.
And it is then the duty of a court of law, in a case properly brought before it, to see that the property so dedicated is not diverted from the trust which is thus attached to its use. So long as there are persons qualified within the meaning of the original dedication, and who are also willing to teach the doctrines or principles prescribed in the act of dedication, and so long as there is any one so interested in the execution of the trust as to have a standing in court, it must be that they can prevent the diversion of the property or fund to other and different uses.
This is the general doctrine of courts of equity as to charities, and it is also applicable to ecclesiastical matters.
In such case, where the trust is confided to a religious congregation or church government, it is not in the power of the majority of that congregation, however preponderant by reason of a change of views on religion, to carry the property so confided to them to the support of new and conflicting doctrine.
A pious man building and dedicating a house of worship to the sole and exclusive use of those who believe in the doctrines of the Holy Roman Catholic Church, and placing it under the control of those who at the time held the same belief, has a right to expect that the law will prevent that property from being used for any other purpose whatsoever. The law should throw its protection around the trust, and it is the duty of courts of law to enforce a trust clearly defined, and to inquire whether the party accused of violating the trust is using the property so dedicated as to defeat the declared objects of the trust. In such cases, the right to the use of the property must be determined by the ordinary principles which govern voluntary associations.
The same rule prevails as to the class of cases coming within the view of the third proposition, as to property acquired in any of the usual modes for the general use of a religious congregation which is itself part of a larger and general organization, with which it is connected by religious views and ecclesiastical government, and which appeals to the courts to determine the right to the use of the property so acquired. That is, where property has been purchased for the use of the congregation, and so long as any such body can be ascertained to be of that congregation, and is under its control and bound by its orders and judgments, or its regular and legitimate successor, it is entitled to the use of the property.
In this class of cases, the rule of action which governs the civil courts of the United States, as enunciated by the highest legal tribunal, the Supreme Court, is founded upon a broad and sound view of the relations of church and state, and is, that wherever questions of faith or of discipline, or ecclesiastical rule, custom, or law, have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them in their application to the case before them.[3]
In delivering the opinion of the court in that case, the learned Mr. Justice Miller said:
"In this country the full and free right to entertain any religious belief, to practise any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law is not committed to the support of any dogma, the establishment of any sect. The right to organize voluntary religious associations, to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent, and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject to only such appeals as the organism itself provides for.
"Nor do we see that justice would be likely to be promoted by submitting those decisions to review in the ordinary judicial tribunals.
"The Catholic Church has constitutional and ecclesiastical laws of its own that task the ablest minds to become familiar with. It cannot be expected that judges of the civil courts can be as competent in the ecclesiastical law as the ablest men in the church. It would therefore be an appeal from the more learned tribunal in the law, which should decide the case, to one which is less so.
"These views are supported by the preponderant weight of authority in this country."
And according to the American rule, where the subject-matter of dispute, inquiry, or decision is strictly and purely ecclesiastical in its character, it is a matter over which the civil courts should not exercise any jurisdiction—a matter which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them, the civil court has not and should not have any jurisdiction. If the civil courts were at liberty to inquire into the whole subject of doctrinal theology, usages, and customs, the written laws and fundamental principles would have to be examined into with minuteness and care, for they would be the criteria by which the validity of the ecclesiastical decree would be determined in the civil court. And that would deprive the authorities of the church of their proper right and power to construe their own church laws, and would open the way to the evil of transferring to the civil courts, where the rights to property were concerned, the decision of all ecclesiastical questions.[4]
Of all the cases in which this doctrine is applied, no better representative can be found than that of Shannon v. Frost,[5] where the principle is ably supported by the learned Chief-Justice of the Court of Appeals of Kentucky, wherein he says:
"This court, having no ecclesiastical jurisdiction, cannot revise or question ordinary acts of church discipline. Our only judicial power in the case arises from the conflicting claims of the parties in the church property, and the use of it. We cannot decide who ought to be members of the church, nor whether the excommunicated have been justly or unjustly, regularly or irregularly, cut off from the body of the church."
The same principle was laid down in the subsequent case of Gibson v. Armstrong,[6] and of Watson v. Avery.[7]
One of the most careful and well-considered judgments on the subject is that of the Court of Appeals of South Carolina, delivered by Chancellor Johnson in the case of Harmon v. Dreher.[8] That case turned upon certain rights in the use of church property claimed by the minister, notwithstanding his expulsion from the synod as one of its members:
"He stands," says the chancellor, "convicted of the offences alleged against him by the sentence of the spiritual body of which he was a voluntary member, and whose proceedings he had bound himself to abide. It belongs not to the civil power to enter into or review the proceedings of a spiritual court. The structure of our government has for the preservation of religious liberty rescued the temporal institutions from religious interference; on the other hand, it has secured religious liberty from the invasion of the civil authority. The judgments, therefore, of religious associations, bearing on their own members, are not examinable here; and I am not to enquire whether the doctrines attributed to Mr. Dreher were held by him, or whether, if held, were anti-Lutheran, or whether his conduct was or was not in accordance with the duty he owed to the synod or to his denomination.... When a civil right depends upon an ecclesiastical matter, it is the civil court and not the ecclesiastical which is to decide. But the civil tribunal tries the civil right, and no more, taking the ecclesiastical decisions out of which the civil right arises as it finds them."
This principle is reaffirmed by the same court in the John's Island Church case.[9] And in Den v. Bolton[10] the Supreme Court of New Jersey asserts the same principle.
The Supreme Court of Illinois, in the case of Ferraria v. Vascouelles, refers to the case of Shannon v. Frost with approval, and adopts the language of the court, that the judicial eye cannot penetrate the veil of the church for the forbidden purpose of vindicating the alleged wrongs of excised members; when they became members, they did so upon the condition of continuing or not as they and their churches might determine, and they thereby submit to the ecclesiastical power, and cannot now invoke the supervisory power of the civil tribunals.
And in the case of Chase v. Cheney, recently decided in the same (Illinois) court, Judge Lawrence says: "The opinion implies that in the administration of ecclesiastical discipline, and where no other right of property is involved, their loss of the clerical office or salary incident to such discipline, a spiritual court is the exclusive judge of its own jurisdiction, and that its decision of that question is binding on the secular courts."
In the case of Watson v. Ferris,[11] which was a case growing out of the schism in the Presbyterian Church in Missouri, the court held that whether a case was regularly or irregularly before the assembly, was a question which the assembly had the right to determine for itself, and no civil court could reverse, modify, or impair its action in a matter of merely ecclesiastical concern.
The opinion of the Supreme Court of Pennsylvania, expressed in the case of the German Reformed Church v. Seibert,[12] sets forth that the decisions of ecclesiastical courts, like every other judicial tribunal, are final, as they are the best judges of what constitutes an offence against the word of God and the discipline of the church. Any other than those courts must be incompetent judges of matters of faith, discipline, and doctrine; and civil courts, if they should be so unwise as to attempt to supervise their judgments on matters which come within their jurisdiction, would only involve themselves in a sea of uncertainty and doubt, which would do anything but improve religion and good morals.
In the subsequent case of McGinnis v. Watson,[13] this principle is again applied and supported by a more elaborate argument.
Lord Chancellor Eldon, upon delivering the opinion of the House of Lords in the celebrated test-case of Craigdallie v. Aikman, reported in 2 Bligh, 529 (1 Dow, 1), said: That they (the law lords) had adopted this principle as their rule and guide for cases of dispute respecting the right to property conveyed for the use of religious worship—that it is a trust which is to be enforced for the purpose of maintaining that religious worship for which the property was devoted, and in the event of schism (the original deed having made no provision for such cases) its uses are to be enforced, not on behalf of a majority of the congregation, nor yet exclusively in behalf of the party adhering to the general body, but in favor of that part of the society adhering to and maintaining the original principles upon which it was founded: the exclusive standard or guide by which conflicting claims are to be decided is adherence to the church itself.
Regarding, therefore, church property, or the property of religious societies, communities, or orders, in the same manner as the private property of any other corporation or individual, it may with safety be assumed as a settled and fundamental law that ought to be recognized by every Christian and civilized state, that it is bound to make just indemnity and compensation to the citizen or subject, society, or corporation, or community, for all property taken under the pressure of state necessity for the public good, convenience, or safety. The eminent domain of the state should be so exercised as to work no wrong, to inflict no private injury, without giving to the party aggrieved ample redress. This doctrine was not engrafted on the public law to give license to despotic and arbitrary sovereigns. It has its foundation in the organization of society, and is essential to the maintenance of public virtue in every government, whether a republic, a monarchy, or a despotism. It is of the very essence of sovereignty, for without it a state cannot perform its first and highest duties—those required by justice and righteousness. Whenever, therefore, from necessity a state appropriates to public use the private property of an individual or of a corporation, lay or religious, it is obliged by a law as imperative as that by which it makes the appropriation, to give to the party aggrieved redress commensurate with the injury sustained. Upon any other principle the social compact would work mischief and wrong. The state might impoverish the citizen it was established to protect, and trample on those rights of property, security for which was one of the great objects of its creation.
All the elementary writers of authority sustain these views of the duty and obligations of states.
Justice requires, says Vattel, that the community or individual be indemnified at the public charge.
The taking, says Grotius, must be for some public advantage; as, for instance, in time of war, the erection of a rampart or fortification, or where his standing corn or storehouses are destroyed to prevent their being of use to the enemy, in which case the person injured should receive a just compensation for the loss he suffers out of the common stock. The state is obliged to repair the damage suffered by any citizen out of the public funds. The conversion cannot take place either to gratify any whim, caprice, or fashion; it must be an actual public necessity. For, do we not read of an instance where some king, perhaps of Prussia, was erecting a magnificent palace at his capital, and, in order to carry out the design of the architect, it became necessary to remove a small unsightly tenement, the property of a poor man, who, though so poor, would not sell his place or consent that it should be removed, and there it remained for years, an eyesore perhaps to many, and yet the king, as the chief depositary of justice, would not permit it to be disturbed, although urged by his flatterers and courtiers to do so, until in lapse of years the owner died, and his successors consented to sell. The historian recalls the justice of the king, that all honest and honorable rulers and men might follow such a noble example of honor and justice. But can any one reasonably praise such an act, and approve of the confiscation of the houses of religious and charitable associations in Italy, and the very suppression and wiping out of the corporation or society itself, without trial, or charge of offence or crime other than the offence of doing good to the human race without pay, fee, or reward here, but looking only to heaven for recompense.
If the Italian government or parliament may to-day confiscate or escheat the property of Catholic communities, and thus commit a breach of the pact made by former rulers, emperors, or governments with the founders of such communities, disregarding all inherent rights of succession and perpetuity, may it not to-morrow also commit a breach of its own compacts or implied guarantees, and confiscate or escheat all the property of churches, school-houses, colleges, of other denominations who have lately or are now building them within Italian jurisdiction? For what obstacle is to prevent it doing so? Having outraged and set aside as nought the moral or human law, styled law of nations, in this respect, may it not do so again in any other, from either whim or caprice? Unless there is some power left in public opinion to restrain it, this is a dilemma from which all the arguments of theoretical political economists or logicians cannot relieve them.
Therefore, is it not a question now well worthy the consideration of all honest-thinking men, whether or not they should aid public opinion in sending forth a note of warning against this doctrine of confiscation—for else, perhaps, the disease may make a wider sweep over the earth, and parliaments or congresses be elected for the purpose of confiscating or escheating other property besides church property or the property of religious or charitable houses or communities?
Judging from the tenor and tone of American decisions—upon the question involved—pronounced by some of our ablest and purest men, this "confiscation," or, more expressively, this "spoliation" of the property of the church and of religious orders, by Victor Emanuel, under color of parliamentary enactments, and tested also by recognized rules of international law, to say nothing of that higher law which commands us to "do unto others, etc.," such "confiscation" is utterly indefensible upon any doctrine other than that set forth in the nefarious maxim, "To the victors belong the spoils," and any acquiescence on the part of the Christian nations, Catholic or non-Catholic, is simply disgraceful, and an act of homage to the prince of this world which is in itself an act of dishonor towards God.
And as any title so acquired can only be maintained so long as the usurper has the material power to occupy and defend, it is certain that with the destruction of that power the true and rightful owners may revive and assert their rights of ownership and possession, as the lawful successors of the original grantors and founders, regardless of any claims or incumbrances whatsoever made or suffered by intervening holders or intruders.
FOOTNOTES:
[1] Entered according to Act of Congress, in the year 1873, by Rev. I. T. Hecker, in the Office of the Librarian of Congress, at Washington, D. C.
[2] Constitution of the United States.
[3] Watson v. Jones, 13 Wallacee 729.
[4] See Cardcross case, McMillan v. General Assembly of the Presbyterian Church, 22 D. (Scotch Ct. of Sess.) 270, decided 23d December, 1859. Attorney-General v. Pearson, 3 Merivalee 353; Miller v. Goble, 2 Denioo 492.
[5] 3 B. Monroee 253.
[6] 7 B. Monroee 481.
[7] 2 Bushh 332.
[8] 2 Speers' Equity 87.
[9] 2 Richardson's Equity 215.
[10] 7 Halsteadd 206.
[11] 45 Missourii 183.
[12] 3 Barrr 291.
[13] 41 Pennsylvania Statee 21.