a

pute had reference to the property left by | him to proceed as if he had been pera certain Padre Agostino, a native of fectly capable of acting as a lay person, Malta, who died recently at Tunis; and and had been, as the lawyers say, sui the litigants were, first, the pope, as head juris throughout. He died; and his next and representative of the Propagandâ of kin, very naturally ignoring all quesFide; secondly, the Capuchin Convent of tions relating to his ecclesiastical status, Malta, to which the deceased monk be- claimed his property as they would have longed; thirdly, two of his relations; and done had he been an ordinary lay person. fourthly, the queen of England, who was They have succeeded, moreover, in estabnot, indeed, represented by counsel, but lishing their right, but not without whose claim was incidentally mentioned grand fight on the part of the pope and the by the consul-general as being almost, if convent. not quite, as strong as that of any of the other parties. So respectable an array of suitors would hardly have been gathered together had not the trial involved some important and novel issues; and, indeed, the circumstances under which Father Agostino died were such as might puzzle the most ingenious judge who ever presided over a consular court.

The first question which presented itself for the consideration of the British consul was, of course, that of domicile; and there was not much difficulty in determining that a man who had been a Maltese subject of her Majesty, and had acted throughout under a British appointment, retained his domicile of origin, and became, as regarded his personal propHe had joined the Capuchin Convent in erty, in no sense amenable to the laws of Malta twenty-seven years ago, and taken | Tunis, Turkey, or France. The compethe usual vows, including that of perpet-tence of the British tribunal being thus ual poverty; the effects of which were, as established, the next thing was to dispose it was argued, twofold — first, that he of an objection to the effect that neither could not acquire or hold or transmit the pope nor the convent could sue in a property; and, secondly, that he became British court of justice. The consul-gencivilly dead and incapable for the future | of entering into any binding contracts on his own behalf. To this was added another assumption made by one of the counsel; that at the time of entering the convent he became bound by a rule prevailing in analogous cases, that whatever he might apparently acquire would be acquired not for himself but for the religious corporation. It will be seen that the sequel of the padre's history made it somewhat difficult to apply any one of these maxims. Shortly after he had become a Capuchin monk, the British government in Malta, recognizing his position, despatched him to Tunis to look after the spiritual welfare of the English in that principality. He went accordingly; but instead of confining himself to this essential part of his duties he rendered a variety of other and more practical services to the colony, and, what with lending out money at interest, acting as legal and literary adviser, making himself generally useful to others, and speculating on his own account, amassed a very considerable fortune, which he not only never handed over to the convent, but enjoyed in perfect security and made the most of till the day of his death. Whatever might be the claim of the corporation, or of the Propagandâ Fide (under whose orders he acted, to some extent at least, at Tunis), they made no mention of it during the lifetime of the friar, but allowed

eral, though complaining that the proclamation settling the constitution of Malta had not been produced, decided against the objection, on the ground that the Roman Catholic religion and the religious bodies professing it have a recognized and legal existence in the island. A third and much more formidable argument was that which has been already mentioned namely, that this monk, having in point of fact, though in violation of his vows, acquired large sums of money, did so as the agent of the society, and was bound sooner or later, either during his life or at his death, to hand it over to the common stock. Of this contention Mr. Fawcett disposed by holding, first, that no contract had been proved whereby he engaged to do any such thing; and, secondly, that the society, being composed of a number of men individually sworn to poverty, was itself also bound by a similar obligation, and could neither acquire nor hold. It is here, perhaps, that the argument which prevailed with the judge is weakest. For it appears that in most communities of the sort the contract referred to is understood to exist, and the property of individual members is thrown into a common stock; while, as regards the second part of the conclusion, an inference from the particular to the general does not very logically hold good. It is, indeed, almost obvious that the corpora tion does and must hold some sort of

property, such as a home to live in, cloth- | by consent of the law a Capuchin, and ing, furniture, 2nd probably books or had renounced all worldly possessions, archives of some kind. The monks must past, present, and future, what was his live; and, though they may be sworn not to enrich themselves personally, it would be hard if the law allowed any thief to rob them with impunity of the loaf or lentils destined for their daily meal. The monk despoiled of that humble possession might not be himself entitled to sue, but the convent, in the collective right of him and his fellows, could hardly be denied the protection of British law.

Granting, however, that the corporation or association of Capuchin monks could not hold the property, or support an action for it, we are then confronted with another claimant, the Propagandâ and the pope. These parties—or this party, for their interest appears to be identical contend that the monk has acquired, but clearly not for himself. He cannot hold, nor can his convent; nor can he transmit to his next of kin, who have ceased to have any relationship with him, inasmuch as he is civilly defunct. He acquires, therefore, for that body of which he is still a member, and which is not prohibited by a disciplinary rule from holding | temporal possessions. His property, in fine, is the property of the Church, and may be claimed by the head and represen. tative of the Church. Mr. Fawcett in his judgment does not perhaps give this contention quite all the weight it merits. He regards the pope as claiming through and by way of the convent; and thus in rejecting the demand of the latter assumes to have disposed of all those who trace their title through it. The pope may, without any violation of common sense or established law, deny both the premiss and the conclusion. He may assert that the convent's disability is a special disability not paralyzing it or "attainting" it as a channel of descent; and he may, moreover, claim without any reference to the convent at all, merely as the direct superior and as it were the guardian of this too avaricious member of his great Catholic flock. Whether the English law as established in Malta can recognize the Papal Church and its convents, and yet refuse to recognize such claims, if they are good in other Catholic countries, is a point not discussed in the judgment, and, perhaps considering the history of Papal provisions in England - it is still open to some little doubt.

The question of civil death becomes important in this curious case, when we look at the claim capable of being urged by the British crown. If the monk was

de facto possession of them but a mere sham and fiction in the eye of the law? What else were the goods in his ostensible ownership but bona vacantia, lapsed to the State? If for all legal and civil purposes he died when he entered the convent, and all his worldly possessions were then distributed, how can he now, in the contemplation of the law, die again, leaving heirs, executors, administrators, or next of kin? His blood relations now come forward to make out their connection with a man whom they had looked upon as cut off from them and the rest of the world, and for whose contracts, had he died insolvent, they were very unlikely to consider themselves bound. They rely to a great extent upon the alleged fact that the Capuchins cannot hold. But if their claim was bad at the first, the weakness of the other parties would not impart goodness to it, but would only let in the counsel for the crown. It is, indeed, a pity that the crown was not a party to the suit, and that notice of appeal to the Privy Council has not been given, if only for the purpose of ascertaining the principle to be applied in such cases. It is not at any time unlikely that some similar questions may arise in one of our colonies. But it will probably be long before a case presents itself so complicated in its details, and so fertile in perplexing problems. Padre Agostino has earned a place in the law reports; for there was, perhaps, never a man who did so many things which no one could suppose that he would, should, might, or could have done.

From The Portsmouth (Eng.) Monitor.
A MODERN SERMON.

ILLUSTRATING THE METHOD UPON WHICH
SOME PARSONS CONSTRUCT THEIR

DISCOURSES,

BRETHREN, the words of my text are: Old Mother Hubbard, she went to the cupboard,

To get her poor dog a bone;

But

when she got there the cupboard was bare,

And so the poor dog had none.

These beautiful words, dear friends, carry with them a solemn lesson. I propose this evening to analyze their meaning, and to attempt to apply it, lofty as it may be, to our every-day life.

Old Mother Hubbard, she went to the cup-ice from Gunter's, the case would have board,

But when she got there the cupboard was for us to glean from this beautiful story

And so the poor dog had none.

"When she got there!" You see, dear brethren, what perseverance is. You see the beauty of persistence in doing right. She got there. There were no turnings and twistings, no slippings and slidings, no leaning to the right or falterings to the left. With glorious simplicity we are told she got there.

And how was her noble effort rewarded?

"The cupboard was bare!" It was bare! There were to be found neither oranges nor cheesecakes, nor penny buns, nor gingerbread, nor crackers, nor nuts, nor lucifer matches. The cupboard was bare! There was but one, only one solitary cupboard in the whole of that cottage, and that one, the sole hope of the widow and the glorious loadstar of the poor dog, was bare! Had there been a leg of mutton, a loin of lamb, a fillet of veal, even an

TERMS OF SUBSCRIPTION.

For EIGHT DOLLARS, remitted directly to the Publishers, the LIVING AGE will be punctually forwarded for a year, free of postage.

An extra copy of THE LIVING AGE is sent gratis to any one getting up a club of Five New Subscribers. Remittances should be made by bank draft or check, or by post-office money-order, if possible. If neither of these can be procured, the money should be sent in a registered letter. All postmasters are obliged to register letters when requested to do so. Drafts, checks and money-orders should be made payable to the order of LITTELL & Co.

Single Numbers of THE LIVING AGE, 18 cents.