shortage of moral discrimination, and such a disregard of the plain difference between justice and injustice, that his continuance in office would be highly detrimental to the good name of the courts, and to the due administration of justice. No useful purpose would be served by a lengthy discussion of the technical grounds upon which the Judge attempted to excuse or explain his action; but they may be briefly stated. He justifies the refusal to listen to the application of the bank for rehearing and to be heard in its own defense, upon the ground that it was not a party to the action and therefore had no standing in court. But if it was not a party to the action, execution could not lawfully issue against it. He further says that the bank might have come in as a party defendant, as agent or attorney for Hartman, under the power of attorney contained in the public instrument wherein Barnes, as agent of the bank, purchased the store "Siglo XIX" from Hartman and assumed the payment of his obligation to Jurado & Co. and that it failed to do so. He made no suggestion at the time of rejecting its application for hearing, that it might come into court in that way. But if it had come in as the agent of Hartman, its defense would, under the law of procedure applicable to executive actions, apparently have been limited to such defenses as Hartman could have made, and there is nothing to indicate that Hartman could have made a successful defense to the action against him, or that it could thus have litigated the question of its own liability, nor is it at all certain that Judge Majarreis would have ruled that the power of attorney held by the bank was sufficient to entitle it to appear at all, as the agent of Hartman. The Judge also claims that the bank might have become a party by intervention. But when the bank presented its petition for a rehearing, he made no suggestion of that kind, and justifies his silence only upon the ground that it was the business of the attorneys of the bank to know the proper method of procedure. Apparently the application of the bank was an intervention in every sense, except possibly in name, and it would be a monstrous perversion of justice to turn a party out of court and issue execution for $36,000.00 against him, without a trial, upon so shallow and technical a ground as that. It is doubtless true that, had the bank disclosed, in response to the embargo, that it had in its possession $36,000.00 belonging to Hartman, that fund would have been an available asset upon which execution against Hartman might properly have been levied. But the instant the court became authentically informed that the bank denied having such assets or funds belonging to Hartman, the power to proceed against it, in the executive action against Hartman, came to an end; and before the bank could have been compelled to make payment, separate action must have been instituted against it, wherein it would have had full opportunity to be heard in its own defense. Such is plainly the law, not only upon. general principles of natural justice, but also under the Code of Civil Procedure prevailing in the Philippines. The result, therefore, necessarily is, that the suspension of Judge Majarreis ordered by the Military Governor, on the 10th day of August, 1900, ought to be made permanent, and he should be removed from the office of Judge of the Court of First Instance of the district of Binondo; and it is so ordered. Manila, P. I., January 5, 1901. THE SAN José College CASE. [Extracts from Minutes of Proceedings, January 5, 1901.] BEFORE THE UNITED STATES PHILIPPINE COMMISSION. T. H. PARDO DE TAVERA, AND OTHERS, FOR THE RECTOR OF THE UNIVERSITY OF SAINT DECISION. In the instructions given by the President of the United States to the Secretary of War for the guidance of the United States Philippine Commission was the following direction: "It will be the duty of the Commission to make a thorough investigation into the titles of the large tracts of land held or claimed by individuals or by religious orders; into the justice of the claims and complaints made against such land holders by the people of the islands, or any part of the people, and to seek by wise and peaceable measures a just settlement of the controversies and redress of the wrongs which have caused strife and bloodshed in the past. In the performance of this duty the Commission is enjoined to see that no injustice is done; to have regard for substantial rights and equity, disregarding technicalities as far as substantial right permits, and to observe the following rules: That the provision of the Treaty of Paris, pledging the United States to the protection of all rights of property in the islands, and as well the principle of our own Government, which prohibits the taking of private property without due process of law, shall not be violated; that the welfare of the people of the islands, which should be a paramount consideration, shall be attained consistently with this rule of property right; that if it becomes necessary for the public interest of the people of the islands to dispose of claims to property, which the Commission finds to be not lawfully acquired and held, disposition shall be made thereof by due legal procedure, in which there shall be full opportunity for fair and impartial hearing and judgment; that if the same public interests require the extinguishment of property rights lawfully acquired and held, due compensation shall be made out of the public treasury therefor; that no form of religion and no minister of religion shall be forced upon any community or upon any citizen of the island; that upon the other hand no minister of religion shall be interferred with or molested in following his calling; and that the separation between State and Church shall be real, entire and absolute." Soon after the Commission reached Manila, it was consulted by General MacArthur, the Military Governor, as to the proper course for him to take on the petition of the Rector of the University of Saint Thomas, asking him to revoke an order made by his predecessor, General Otis, in 1899, which forbade the Rector of the University of Saint Thomas to continue to maintain a school of Medicine and Pharmacy in the buildings of the College of San José, and to use its name and income for that purpose. The order of General Otis had been made at the instance of the President and Directors of the Philippine Medical Association, who claimed that the foundation of the College of San José had been completely under the control and administration of the Spanish government as a public institution and passed by virtue of the Treaty of Paris to the United States government, and that though the Spanish government had permitted the College to be administered for it by the Dominican order, the United States government, in which there is a complete separation of Church and State, should maintain the administration of a school, with purposes so entirely secular as that of the teaching of medicine, free from sectarian and monastic influences. General Otis' order did not take away from the control of the Rector of the University the property of the College of San José, but merely forbade the opening of the College as a school of Medicine and Pharmacy. The property of the foundation, therefore, is still in the possession and under the control of the Rector of the University of Saint Thomas, except that he is prevented by the terms of the order from opening a College of Medicine and Pharmacy therein. The corporation of the College of San José owns two large haciendas. The issue here presented involves the question of the control of that property. Under the instructions of the President, the Commission deemed it its duty to investigate the issue involved and to bring it to a legal settlement. It so advised the Military Governor and suggested that he delay action upon the petition of the Rector of the University of Saint Thomas until the investigation could be had, and that meantime the College might be opened under the joint control of representatives to be appointed by each party. Joint control was unsatisfactory to both parties and the Military Governor, therefore, decided not to change the status quo under the order of General Otis, until the Commission should conclude its hearing and express to him its view of the proper action to be taken on the petition of the Rector of the University. The hearing of the case was begun in July and continued from time to time until October. Dr. T. H. Pardo de Tavera appeared as the party complainant, representing the Philippine Medical Association and those of the Philippine people interested in secularizing the control of the College of San José. The Most Reverend Fr. Bernardino Nozaleda de Villa, Archbishop of Manila, and the Most Reverend P. L. Chapelle, Archbishop of New Orleans and Apostolic Delegate, appeared in behalf of the Holy Apostolic Roman Catholic Church, and asked that it be substituted as a party to the issue instead of the Rector of the University of Saint Thomas, on the ground that the Rector only represented the Church in his control of the College. The Archbishops were permitted to appear in this representative capacity and to defend against the prayer of complainants. The pressing engagements of the Commission in other matters prevented a speedier hearing, and have delayed the announcement of its conclusions until now. The questions in the case are these: Did the Government of the United States, as claimed by the complainants, acquire by the Treaty of Paris the right and power to pro vide for the control and management of the foundation and properties of the College of San José, as an institution under the secular and civil control of Spain in the Philippine Islands, so that the United States should now by law give to the College a directory, non-sectarian in character, to maintain and conduct it as a school of medicine and pharmacy? Or-as claimed on behalf of the Catholic Church-have the foundation and properties of the College of San José, under the canonical law and the civil law of Spain, always been subject to the ultimate control of the Church for sectarian charitable purposes, a control exercised by the King of Spain only by virtue of a concordat between him and the Pope, as head of the Catholic Church? It is indispensable to a proper discussion of these questions that the history of the College of San José as shown by the evidence and documents before us should be stated. It was agreed between the parties that for the convenience of themselves and the Commission a statement of the facts, made by Lieut. Col. Crowder, Military Secretary, in a report concerning the status of the College, to the Military Governor, should be taken as accurate, but that it might be supplemented by additional documents and evidence to be produced by either party. Additional documents have been produced by the parties and we do not understand that the authenticity of any of the documents adduced on either side has been denied. With the record of the case thus fixed, we proceed now to state, as succinctly as may be, the history of the College of San José: On the 8th of June, 1585, the King of Spain, upon information that the Fathers of the Society of Jesus had done much good work in teaching in the Islands, and that their retention and increase was desirable, and that they should be assisted by the establishment of a college, commanded the Governor and the Bishop of the Islands to report to him how the College could be instituted and the necessities of the Jesuit Fathers provided for. In 1601, on the 25th day of August, the Provisor and Vicar General of the Archbishopric of Manila, upon the application of the Jesuit Father, Louis Gomez, granted permission to the petitioner and his order to found and establish the College of San José for the purpose of bringing up young people of the city of Manila and rearing them according to good manners and learning and of creating such ministers of the Holy Gospel as might be needed in the land and to perform masses in the College. Upon the same day, the Governor and Captain General of the Philippines, in the name of the King of Spain, granted a similar license to the same applicant. How far the Jesuit Fathers were successful in establishing a college for the purposes mentioned between 1601 and 1608 does not appear very clearly. Certain it is that a school was opened called San José, but there appears to have been no property foundation of any kind until after 1605. In the month of March, 1596, Rodriguez de Figueroa, then Governor of Mindanao, made the following will: "In the name of God. Amen. Know all whom this will may see, that I, Esteban Rodriguez de Figueroa, Governor and Captain General of Mindanao and of its District, now a resident of the village of Arevalo, legitimate son of Duarte Rodriguez de Figueroa and Da. Isabel Gonzales, my parents, formerly residents of the city of Jerez de la Frontera in the Kingdom of Castile, being in good bodily health and in my natural understanding and memory, such as pleased our Lord to give me, and believing, as I truly and firmly believe, in the Most Holy Trinity, Father, Son and Holy Ghost, three persons, and only one true God who lives and reigns, without beginning and without end. And taking as I do the Holy Virgin Mary as my Lady and Advocate in all my actions, and desiring to place my soul in course of salvation, and naturally fearing death, I execute, acknowledge by these presents, and order this my last and ultimate will, in the manner and form as follows: And so that God, our Lord, should not allow any of my said children to die before they become of age, competent to make a will, I, as their father and legal administrator, am competent to make a will for them in such case, and, by virtue of said power, I order and command that if the aforementioned happens, their mother, Ana de Oseguera, if surviving, inherit the estate of the deceased and of both, the third and the remainder of the fifth being devoted to what is hereinafter declared, and if said Da. Ana de Oseguera and my said children, or either of them, die without leaving heirs in the descending line, then, in such case, their estate and their legal paternal or maternal portion, together with the rents and profits therefrom, shall be devoted to the foundation of a College in the manner hereinafter stated, the same being done, if said Da. Ana de Oseguera survives, with the third and remaining fifth; in either one or the other event, a house must be constructed near the Society of Jesus of Manila, sufficient to serve as a College and Seminary for boys, where all those be admitted who should desire to enter the primary classes of said Seminary; I pray and request whoever may be the Provincial of said Society to furnish such boys with sufficient teachers for that purpose, the remaining part of said building, not used for that purpose, to be rented for the purpose of maintaining such children and boys; the said Father Provincial to be the Patron and Administrator of said College, and no one can enter therein without his permission and authority; to visit and to correct and arrange all of its things, to order said sale, buy the possession and the building, and to appoint. a collecting agent and other officials and ministers with the power and authority necessary to such ministry, without said College, nor any judge, nor any secular nor ecclesiastical administration of justice taking part therein, notwithstanding any pretensions that may be advanced. And if any rent remains after payment of maintenance for said boys and of clothing for those who are poor, the said Patron may dispose of it at his will for the benefit of said College and of the Society or of any other pious work, as he may deem best, without at any time asking or taking any account therefor from him, for any cause or reason. I revoke, annul and declare as of no value and effect, any will, order, or codicil which I may heretofore have made, so that they be of no value except this one which I desire to be valid as my last and ultimate will, in the course and form which is proper under the law. In testimony of which I have executed it and signed it with my name at the village of Arevalo on the sixteenth day of the month of March, 1596." In 1605, after the death of Governor Figueroa, the event happened which fulfilled the condition of the gift of the testator to found a college. Part of the funds or property which thus became available were in the city of Mexico, and in order to obtain them it became necessary to apply to the King of Spain to permit the transmission of the annual income from Mexico to the Philippine Islands. An application was accordingly made by the head of the Society of Jesus in which the facts were set forth substantially as before stated, and the necessary permission was requested. By decree of September 13, 1608, this permission was granted as necessary to the founding of a college and |