The Philosophy of Law: Supplementary Explanations, VIII: The Right of the State in relation to Perpetual Foundations for the Benefit of the Subjects
Supplementary Explanations, VIII: The Right of the State in relation to Perpetual Foundations for the Benefit of the Subjects
The Right of the State in relation to Perpetual Foundations for the Benefit of the Subjects.
A FOUNDATION (Sanctio tcstainentaria leneficii pcrpetui) is a voluntary beneficent institution, confirmed by the State and applied for the benefit of certain of its members, so that it is established for all the period of their existence. It is called perpetual when the ordinance establishing it is connected with the Constitution of the State; for the State must be regarded as instituted for all time. The beneficence of such a foundation applies tiither to the people generally, or to a class as a part of the people united by certain particular principles, or to a certain family and their descendants for ever. Hospitals present an example of the first kind of foundations; Churches of the second; the Orders in the State (spiritual and secular) of the third; Primogeniture and Entail of the fourth.
Of these corporate institutions and their Rights of sue-cession, it is said that they cannot be abolished; because the Right has been made the property of the appointed heirs in virtue of a legacy, and to abrogate such a constitution (corpus mysticum) would amount to taking from some one what was his.
A. Hospitals.
Such benevolent institutions as Hospitals and other Foundations for the poor, for invalids, and for the sick, when they have been founded by the property of the State, are certainly to be regarded as indissoluble. But if the spirit, rather than the mere letter, of the will of a private Testator is to form the ground of determination, it may be that circumstances will arise in the course of time such as would make the abolition of such foundations advisable, at least in respect of their form. Thus it has been found that the poor and the sick may be better and more cheaply provided for by giving them the assistance of a certain sum of money proportionate to the wants of the time, and allowing them to board with relatives or friends, than by maintaining them in magnificent and costly institutions like Greenwich Hospital, or other similar institutions which are main tained at great expense and yet impose much restriction on personal liberty. Lunatic asylums, however, must be regarded as exceptions. In abolishing any such institutions in favour of other arrangements, the State cannot be said to be taking from the people the enjoy ment of a benefit to which they have a right as their own; rather does it promote their interest by choosing wiser means for the maintenance of their rights and the advancement of their well-bein”.
B. Churches.
A spiritual order, like that of the Koman Catholic Church, which does not propagate itself in direct descend ants, may, under the favour of the State, possess lands with subjects attached to them, and may constitute a spiritual corporation called the Church. To this corpora tion the laity may, for the salvation of their souls, bequeath or give lands which are to be the property of the Church. The Pioman Clergy have thus in fact acquired possessions which have been legally transmitted from one age to another, and which have been formally confirmed by I’apal Bulls. Now, can it be admitted that this relation of the clergy to the laity may be annulled by the supreme power of the secular State; and would not this amount to taking violently from them what was their own, as has been attempted, for example, by the unbelievers of the French Republic?
The question really to be determined here is whether the Church can belong to the State or the State to the Church, in the relation of property; for two supreme powers cannot be subordinated to one another without contradiction. It is clear that only the former constitution (politico - hierarchical, according to which the property of the Church belongs to the State, can have proper existence; for every Civil Constitution is of this viorld, because it is an earthly human power that can be incorporated with all its consequences and effects inexperience. On the other hand, the believers whose Kingdom is in Heaven as the otJter world, in so far as a hierarchico-political constitution relating to this world is conceded to them, must submit themselves to the sufferings of the time, under the supreme power of the men who act in the world. Hence the former Constitution is only, in place.
religion, as manifested in the form of belief in the dogmas of the Church and the power of the Priests who form the aristocracy of such a constitution, even when it is monarchical and papal, ought not to be forced upon the people, nor taken from them by any political power. Neither should the citizen—as is at present the case in Great Britain with the Irish Nation—be excluded from the political services of the State, and the advantages thence arising, on account of a religion that may be different from that of the Court.
Now, it may be that certain devout and believing souls, in order to become participators of the grace which the Church promises to procure for believers even after their death, establish an institution for all time, in accordance with which, after their death, certain lands of theirs shall become the property of the Church. Further, the State may make itself to a certain extent, or entirely, the vassal of the Church, in order to obtain by the prayers, indulgences, and expiations administered by the clergy as the servants of the Church, participation in the boon promised in the other world. Lut such a Foundation, although presumably made for all time, is not really established as a perpetuity; for the State may throw off any burden thus imposed upon it by the Church at will. For the Church itself is an institution established on faith, and if this faith be an illusion engendered by mere opinion, and if it disappear with the enlightenment of the people, the terrible power of the Clergy founded upon it also falls. The State will then, with full right, seize upon the presumed property of the Church, consisting of the land bestowed upon it by legacies. However, the feudatories of the hitherto existing institution, iuay of their own right demand to be indemnified for their life interests.
In like manner, Foundations established for all time, in behoof of the poor as well as educational Institutions even supposing them to have a certain definite character impressed by the idea of their founder, cannot be held as founded for all time, so as to be a burden upon the land. The State must have the liberty to reconstitute them, in accordance with the wants of the time. No one may be surprised that it proves always more and more difficult to carry out such ideas, as for instance a provision that poor foundationers must make up for the inadequacy of the funds of their benevolent institution by singing as mendicants; for it is only natural that one who has founded a beneficent institution should feel a certain desire of glory in connection with it, and that he should be unwilling to have another altering his ideas, when he may have intended to immortalize himself by it. But this does not change the conditions of the thing itself, nor the right, and even the duty of the State, to modify any foundation when it becomes inconsistent with its own preservation and progress; and hence no such institution can be regarded as unalterably founded for all time.
C. The Orders in the State.
The nobility of a country which is not under an. aristocratic but a monarchical Constitution, may well form an institution that is not only allowable for a certain time, but even necessary from circumstances, Hut it cannot be maintained that such a class may b« established for all time, and that the Head of the State should not have the right entirely to abolish the privileges of such a class; nor, if this be done, can it be held that thereby what belonged to the Nobility as Subjects, by way of a hereditary possession, has been taken from. them. The Nobility, in fact, constitute a temporary corporation or guild, authorized by the State; and it must adapt itself to the circumstances of the time, nor may it do violence to the universal right of man, how ever long that may have been suspended. For the rank of the nobleman in the State is not only dependent upon the Constitution itself, but is only an accident, with a merely contingent inherence in the Constitution. A nobleman can be regarded as having a place only in the Civil Constitution, but not as having his position grounded on the state of Nature. Hence, if the State alters its constitution, no one who thereby loses his title and rank would be justified in saying that what was his own had been taken from him; because he could only call it his own under the condition of the continued duration of the previous form of the State. But the State has the right to alter its form, and even to change it into a pure Republic. The Orders in the State, and the privilege of wearing certain insignia distinctive of them, do not therefore establish any right of perpetual possession.
D. Primogeniture and Entail.
By the Foundation of Primogeniture and Entail is meant that arrangement by which a proprietor institutes a succession of inheritance, so that the next proprietor in the series shall always be the eldest born heir of the family, after the analogy of a hereditary monarchy in the State. But such a Foundation must be regarded as always capable of being annulled with the consent of all the Agnates; and it may not be held to be instituted as for all time, like a hereditary Right attaching to the Soil. Nor, consequently, can it be said that the abrogation of it is a violation of the Foundation and Will of the first ancestral Founder. On the contrary, the State lias here a Right and even a duty, in connection with gradually emerging necessity for its own Reform, if it has been once extinguished, not to allow the resuscitation of such a federative system of its subjects, as if they were viceroys or sub-kings, after the analogy of the ancient Satraps and Heads of Dynasties.