Chapter V: Shadows and Lilies (2)

"You are quite right," Mr. Schöninger answered. "And that is precisely what people are learning to do. It is also what many, who wish truth to be believed on their own testimony, object to their doing. I repeat"--he glanced with anxiety into her clouded face--"I earnestly assure you that I have not uttered a word which conflicts with your creed, though it is not mine. If I were to-day to become a Catholic, I should only reiterate what I have said on this subject."

The cloud passed from her face, but still she did not speak. She was not gifted in argument, and this subject was complex, and, moreover, a bone of contention.

"It has occurred to me," he said presently, "that the people in Crichton, though they appear to be very liberal, may still have a prejudice against me as a Jew. That would be of no consequence to me in the case of most of them; but there are a few whom I should be sorry to know had such a feeling. The Jews are much misunderstood and slandered, though people have an opportunity of learning their true character if they would. The majority seem to look on every Jew as a probable or possible usurer and dealer in old clothes, and a person capable of joining a rabble at any moment, and pursuing an innocent man to death. I do not, of course, fancy for an instant that you have any sympathy with such people; but I think it possible that you may misunderstand my attitude toward your church. I have not the slightest feeling of enmity against it as long as it does not do violence to me or mine, and while its members are true to the doctrines of peace and charity which they profess. As an artist I admire it. Its theology is the only one which still retains binding and implacable obligations of form, consequently, the only one that can inspire high art. I do not count the old Jews, who are rapidly melting away. I am of the reformed Jews."

"You no longer expect the coming of the Redeemer, nor the return to Jerusalem, nor the triumph of your people?" she asked, looking at him in astonishment.

"We no longer believe in them," he replied.

"What, then, is left you?" she exclaimed.

He smiled slightly. "I expect and long for the redemption of mankind by the spirit of God, and I believe that truth and charity will prevail, though they may not descend from heaven to become incarnate in one form. The Jerusalem my people will return to is the spiritual city of the children of God. Is it not nobler than the pretty myths which have been wasting our energies and dividing the brotherhood of men into petty clans, all hating each other even while they professed that love was their prime virtue?"

"But sacrifice," she said, "what did you mean by that?"

"We had truth and error mingled. The sacrifice was merely a remnant of heathen customs. Peoples who knew nothing of Judaism nor of Christianity had their offerings and sacrifices. The Jews were the chosen people, finer and more spiritual than any other; and to the souls of the chosen among them the Creator revealed his truths. They renounced all heathenish doctrines, and into the few ceremonies and customs they retained they infused a spiritual significance. As the race deteriorated, this spiritual meaning was misinterpreted, and became more and more literal and gross. The people fell into sin, and for this the Creator punished them by taking away their power and pre-eminence, and by scattering them over the face of the earth."

Honora listened intently; and when he had finished, she uttered but one word. Clasping her hands and lifting her eyes, her heart seemed to burst upward like a fountain, tossing that one word into air, "Emmanuel!"

Not the primeval Creator alone, distant and awful, but God with us! Into this vast and terrible void which had been spread out before her, she invoked with passion the incarnate, the lowly, the pitiful, the suffering God.

"We hold that sacrifice is a practice of divine institution retained from our first parents, not an originally heathen custom," she added after a moment, regaining her composure. "You are, however, obliged to give up your belief in it, or be inconsistent. I can see now that if you hold to the sacrifice, you must hold to the Redeemer; if to the Redeemer, then you must believe in Christ, since the time is gone by for expectation; and if you accept the Christ, you must be a Roman Catholic."

"Precisely!" said the Jew. He had felt a momentary electric shock at the passion of her first exclamation, and had seen with emotion the flush and fire in her countenance. Now he smiled at her concise statement of the case.

Miss Pembroke rose, for the last of the procession was passing. The children were called back to their seats in the same order in which they had left them, and a few simple exercises were gone through with at the request of their visitor. All was well calculated to unfold and inform their young minds, but nothing was for show.

Mr. Schöninger blushed for the mistake he had made in fancying that any occupation on earth could be more refined and noble than Miss Pembroke's, when it was conducted in Miss Pembroke's manner. It seemed an occupation for angels. She possessed, evidently, in a preeminent degree, the power to understand and interest children, and she used that power to perfect ends. There was none of that personal familiarity which he had dreaded to see, that promiscuous fondness and caressing by which some women fancy they please children, when, in fact, the finer sort of children are oftener than not displeased with it. A kind touch of her fingers was to them an immense favor, and a kiss would have been remembered for ever. But while they treated her with profound respect, they approached her with perfect confidence and delight. They gathered about her, and gazed into her sympathetic face, bright and transparent with love from a bountiful woman's heart. They looked at her as a sky full of little stars may look into a smooth lake, and each saw its own reflection there, and was happy. In her soul all innocent infantile thoughts and fancies were condensed, as cloud and spray are condensed into water, and not only could she remember the process, but she could reverse it at will, could evaporate a thought or truth too strong for childish intellects, and give it in the form of rosy clouds to wide, grasping, childish imaginations.

Only one exercise failed at first. The children were shy of singing before the stranger. All their voices faltered into silence but one, a rather fair voice of a little boy who was perfectly self-confident, and who evidently expected applause.

Mr. Schöninger took no notice of the child. Its vanity and boldness displeased him. "A shallow thing!" he thought; and said, "I see that I must hire you to sing for me. You like fairy-stories, surely. Well, sing me but one song, and I will tell you the story."

His voice and smile reassured them. Moreover, a gentleman, no matter how splendid he might be, who could tell fairy-stories, could not be very dreadful. They exchanged smiles and glances, took courage, fixed their eyes on their teacher, and sang a pretty hymn in good time and tune, and with good expression.

In their first essay the musician had caught a faltering little silvery note, which had failed as soon as heard. In the second it came out round and clear, a voice of surprising beauty. He marked the singer, and called him forward as soon as the hymn was over. The boy came awkwardly and blushing. He was the ugliest and most dingy pupil there. Only a pair of melancholy, dark, and lustrous eyes, habitually downcast, and a set of perfect teeth, redeemed the face from being disagreeable. Through those eyes looked a winged soul that did not recognize itself, still less expect recognition from others, but felt only the vague weight and sadness of an uncongenial life. He gave the impression of a beautiful bird whose every plume is so laden with mire it cannot fly.

"You have a good voice, and should learn how to sing," Mr. Schöninger said to him kindly. "I will teach you, if Miss Pembroke approves, and will make the arrangements. Of course it will cost you nothing."

"He needs encouragement," the musician remarked when the boy had returned to his seat; "and he needs to have his position defined before the others. Do you not perceive that they despise him? He has the voice of an angel, and he looks remarkable. And now for my story."

The children's eyes sparkled with anticipation, and the teacher leaned smilingly to listen. Let us listen also, and become better acquainted with Mr. Schöninger.

"Once upon a time, there was a great wrangle in a certain street," the story-teller began. "Five little boys and girls were quarreling, and two dogs were barking. The neighbors put their heads out their windows, and the policeman stopped. Mrs. Blake put her two forefingers in her two ears, for the noise was near her step, and the five boys and girls were all telling her together what the matter was, and whose fault it was. Then the mothers called their children home, and two went into Mrs. Blake's, for they were hers. This was the story she drew from them: Anne Blake had said a cross word to one of the others, that other had made a face at the next, the third had slapped the fourth, and it went round the circle. So it seemed that Anne started the whole by speaking a cross word.

"'Since you are sorry, I will talk no more to you about it,' her mother said. 'But I wish you to go up to your chamber and sit alone a little while, and think over a Chinese proverb which is written on this slip of paper. You are ten years old, and must begin to think.'

"Anne went slowly up-stairs to her chamber, shut the door after her, and sat down in a little cushioned chair by the window to read her proverb. Its being Chinese did not prevent it from being good. This is what she read: 'A word once spoken, a coach and six cannot bring it back again.'

"The day was warm, and the curtain at the window swung with a lulling motion, giving glimpses of blue sky with white clouds sailing over, and, below, of the top of a grape-vine full of leaves and small green grapes.

"Anne gazed at the sky till it made her feel sleepy--gazing at bright things does make one sleepy--then she gazed at the grape-vine. Presently, she saw something in this vine that looked like a tiny ladder, hidden among the leaves. It looked so much like a ladder that she leaned forward and pulled the curtain aside, to see more plainly. Sure enough! It was the loveliest ladder, or stairway, winding down and down. Its steps were dark, like vine branches, and there was a railing at each side of twigs and tendrils, and it wound down and down, in sight and out of sight. And, more wonderful still, it was no longer a yard, with the city about, she saw, but a great vine covering all the window, and glimpses of a moonlighted forest down below.

"'I must go down,' says Anne; and so down she went on the beautiful stairs.

"Lights and shades fluttered over her, and the leaves clapped together, and little tendrils caught at her dress in play. And by-and-by she stepped on to the brightest greensward that could be, full of blue and white violets. The trees arched over her, the air was sweet, and there was a smooth pond near by. The water was so very smooth that she would never have known it was water if the banks had not turned the wrong way in it, and the trees grown down instead of up. A little white boat, too, had another little white boat under it, the two keel to keel. Swans ran down the shore as she looked, and splashed into the water, dipping their heads under, and making the whole surface so full of motion that the upside-down trees and banks and boat disappeared. Words cannot describe how beautiful the place was. There was every kind of flower, and hosts of birds, and the moonlight was so bright that all could be distinctly seen. There were also a great many splendid moths that looked like flowers flying about, and flapping their petals.

"But the most beautiful part was that everything seemed to breathe of peace and love. The birds sang and cooed to each other, the blossoms leaned cheek to cheek, the water laughed at the stones it ran over, and the wet stones smiled back, the gray old rocks held tenderly the flowers and mosses that grew in their hollows, and the mosses and flowers held on to the rocks with their tiny roots, like little children clinging to old people who are fond of them.

"'How beautiful it is to see them so loving,' Anne said. 'They are a sort of people, too; for they look alive. I wish other folks would be as good. I'm sure I try; but then somebody always comes along and says something ugly; and then, of course, I can't help being ugly back again.'

"'Oh! yes, you can,' said a sweet voice close by.

"Anne looked and saw a charming little lady standing beside her. She was so beautiful that words cannot describe her, and she carried a pink petunia for a parasol to preserve her complexion. For she was exquisitely fair, and the moonlight was really very bright.

"'Oh! yes, you can,' she repeated when Anne looked at her. 'You can give a pleasant answer, and then people will stop being ugly.'

"'I could do it if everybody else would,' Anne said. 'The beginning is the trouble. How nice it would be if there were a king over all the world, and he would say, Now, after I have counted three, all of you stop being cross, and begin to love each other, and keep on loving a whole hour. If you don't, I'll cut your heads off!'

"'That would not be love; it would be a make-believe to save their heads,' the little lady answered. 'But there is such a king, and he has commanded us to love each other, and....'

"Here she was interrupted by a loud flapping of wings and a terrible croaking, and a great black bird, something like a bat, flew by; and wherever it struck its wings other bats flew out, and the air grew dark with them, and all the beautiful forest was changed. The stones tried to stop the brook, and the brook tried to upset the stones; the leaves struck each other, the swans and little birds began to pull each other's feathers out. All was discord.

"And then there was a rolling of wheels, and a trampling of hoofs, and a great yellow coach appeared drawn by six horses covered with foam. The coachman looked as if he were driving for his life, and there was a head thrust from each window of the coach, telling him to drive faster. All the heads wore caps like dish-covers, and had long braids of hair hanging down their necks, though they were men; and their eyes slanted down toward their noses, instead of going straight across their faces.

"'We are trying to catch a wicked word that is ruining all the place,' they said, 'but we cannot. A wicked word has wings.'

"'So has a kind word wings,' said the little lady. 'Send a kind word after the cross one, and perhaps it may bring it back.'

"'You are right, madam,' said one of the Chinamen; and he nodded his head till the long braid at the back of it wagged to and fro. And he kept on nodding so queerly that Anne felt obliged to nod too, and so he nodded, and she nodded, till he nodded his head off. And then she nodded her head off--no, not quite off; but she nodded so that she waked herself up. For she had been dreaming.

"Then she jumped up and ran down-stairs and out doors as fast as her feet would carry her. And in ten minutes she was back again, all out of breath, and full of excitement. 'Mother,' she said, 'a coach and six can't do it, but a kind word can. I told Jane I was sorry, and she told--and we all told each other that we were sorry, and then we were glad.' The words were rather mixed up, but the meaning was all right."

"I am truly grateful to you for allowing me to come this afternoon," Mr. Schöninger said on taking leave. "My visit has been to me like a drop of cold water to one in a fever, or like the sound of David's harp to Saul. I am refreshed."

He looked both sad and pleased. "I was about to thank you for coming," Honora answered. "You have given me and the children much pleasure."

And so, with a friendly salutation, they separated.

She mused a moment. "If he could believe in the sacrifice, all would follow," she thought.

Then she called the children to their prayers, but first said a word to them.

"There is something, my dear children, that I want very much," she said. "Oh! I long for it. I shall be unhappy if I do not have it. And I want all of you to ask the Infant Jesus to give it to me for his dear mother's sake. Ask with all your hearts. I will tell him what I wish for."

Her wish was that Mr. Schöninger might believe that sacrifice was a divine revelation, not a heathenish custom.

"That is all he needs from me," she thought. "I trust him. If he has that to begin with, he will himself ask God for the rest."

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 Wallace 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 Merivale 353_; Miller _v._ Goble, _2 Denio 492_.

[5] _3 B. Monroe 253_.

[6] _7 B. Monroe 481_.

[7] _2 Bush 332_.

[8] 2 Speers' _Equity_ 87.

[9] 2 Richardson's _Equity_ 215.

[10] _7 Halstead 206_.

[11] _45 Missouri 183_.

[12] _3 Barr 291_.

[13] _41 Pennsylvania State 21_.

HOW GEORGE HOWARD WAS CURED.