Property Ecclesiastical

Abstract Right of Ownership

That the Church has the right to acquire and possess temporal goods is a proposition which may now probably be considered an established principle. But though almost self-evident and universally acted upon in practice, this truth has met with many contradictors. Scandalized by frequent examples of greed, or misled by an impossible ideal of a clergy entirely spiritualized and raised above human needs, Arnold of Brescia, the Waldenses, then somewhat later Marsilius of Padua, and finally the Wycliffites, formulated various extreme views regarding the lack of temporal resources which befitted ministers of the Gospel. Under John XXII the doctrine of Marsilius and his forerunners had provoked the two Decrees "Cum inter nonnulles" (13 Nov., 1323) and "Licet juxta doctrinam" (23 Oct., 1323) by which it was affirmed that our Lord and His Apostles held true ownership in the temporal things which they possessed, and that the goods of the Church were not rightfully at the disposition of the emperor (see Denzinger-Bannwart, nn. 494-5). Somewhat less than a century later the errors of Wycliff and Hus were condemned at the Council of Constance (Denzinger-Bannwart, nn. 586, 598, 612, 686-6, etc.) and it was equivalently defined that ecclesiastical persons might without sin hold temporal possessions, that the civil authorities had no right to appropriate ecclesiastical property, and that if they did so they might be punished as guilty of sacrilege. In later times these positions have been still more explicitly reaffirmed and in particular by Pius IX, who in the Encyclical "Quanta cura" (1864) condemned the opinion that the claims advanced by the civil Government to the ownership of all Church property could be reconciled with the principles of sound theology and the canon law (Denzinger-Bannwart, n. 1697, and the appended Syllabus, props. 26 and 27).

But apart from these and other similar pronouncements the right of the Church to the complete control of such temporal possessions as have been bestowed upon her is grounded both on reason and tradition. In the first place the Church as an organized and visible society, performing public duties whether of worship or administration, requires material resources for the orderly discharge of these duties. Neither could this end be sufficiently attained if the resources were entirely precarious or if the Church were hampered in her use of them by the constant interference of the civil authority. In the second place Old Testament analogy (see, e.g., Num., xviii, 8-25), the practice of the Apostles (John, xii, 6; Acts, iv, 24-5) with certain explicit utterances of St. Paul, for example, the argument in I Cor., ix, 3 sq., and finally the interpretation of the doctors and pastors of the Church at all periods, recognize nodependence upon the State, but show plainly that the principle of absolute ownership and free administration of ecclesiastical property has always been maintained. It may be further noted that in some of the sternest of her disciplinary enactments the Church has proved that she takes for granted her dominion over the goods bestowed upon her by the charity of the faithful. The twelfth canon of the Œcumencal Council of Lyons (1274) pronounces excommunication ipso facto against those lay persons who seize and detain the temporal possessions of the Church (see Friedberg, "Corpus Juris", II, 953 and 1059) and the Council of Trent followed suit in its Sess. XXII (De ref. C. xi) by launching excommunications latæ sententia against those who usurped many different kinds of ecclesiastical property.

Subject of Rights of Property

But while the abstract right of the Church and her representatives to hold property is clear enough, there has been in past ages much vagueness and diversity of view as to the precise subject in whom this right was vested. The idea of a corporate body, as that of an organized group of men (universitas) which has rights and duties other than the rights and duties of all or any of its members, existed, no doubt, at least obscurely in the early centuries of the Roman Empire. Before the time of Justinian it was pretty clearly apprehended that the members of such a group formed legally but a single unit and might be regarded as a "fictitious person", though this conception of the persona ficta, dear to the medieval legists and perpetuated by men like Savigny, is not perhaps quite so much in vogue among modern students of Roman law (cf. Gierke, "Das deutsche Genossenschaftsrecht", III, 129-36). It was at any rate recognized that this "fictitious person", or "group-person", was not subject to death like the individuals of which it was composed, and on the other hand that it could not be called into existence by private agreement. It required a senatus consultum or something of the sort to be legally constituted.

These well-understood principles, we might suppose, could easily have been invoked to regulate the ownership of property in the case of the Christian communities established in the Roman Empire, but the question in point of fact was complicated by a survival of the ideas which attached to what were called res sacræ in the old days of paganism. This title of "sacred things" was given to all property or utensils consecrated to the gods, though it was required that there should be some authoritative recognition of such consecration. As res sacræ these things were regarded as in a sense withdrawn from the exercise of ordinary ownership, and formed a category apart. The truth seems to be that the gods themselves in pagan times were often conceived of as the owners. This is suggested by the fact that while it was ruled that the gods, i.e., their temples, could not inherit at law, still certain deities were explicitly exempted from this inhibition and were allowed to inherit as any private individual inherited. Such deities were, for example, Jupiter Tarpeius at Rome, Apollo Didymæus of Miletus, Diana of the Ephesians, and others (Ulpian, "Frag.", 22, 6). In similar wise when Christianity became the established faith of the empire, "Jesus Christ" was often appointed heir, and Justinian construed such an appointment as a gift to the Church of the place of the testator's domicile (Codex 1, 2, 25). The same principles were followed when an archangel or a martyr was appointed heir, and this, Justinian tells us, was sometimes done by educated people. The gift was understood to be made to some shrine or church bearing that dedication which the circumstances indicated, and, failing such indication, to the church of the testator's domicile (Cod. 1, 2, 25). The civil power in any case seems to have assumed a certain protective control over res sacræ probably with the view of safeguarding their inviolability. "Sacred things", we read, "are things that have been duly, that is by the priests (pontifices), consecrated to God-sacred buildings, for instance, and gifts duly dedicated to the service of God. And these we by our constitution have forbidden to be alienated or burdened (obligari) except only in order to ransom captives. But if a man by his own authority establish a would-be sacred thing for himself, it is not sacred, but profane. A place, however, in which sacred buildings have been erected, even if the buildings be pulled down, remains still sacred, as Papinian too wrote" (Institutes, II, i, 8). As regards alienation, however, we may compare Cod. 1, 2, 21, which allowed the sale of church property to sustain the lives of men during a famine, and "Novel.", cxx, 10, permitting the sale, in case of debt, of a church's superfluous vessels but not of its immovables or things really necessary.

These and similar provisions have been invoked to support very divergent theories as to the ownership of church property under the empire. The real fact seems to be that among the jurists of the early centuries no clear conception as to the precise subject of these rights was ever adopted. In later times many canonists, like Phillips and Lammer, have maintained that the paroperty was vested in the Church (ecclesia catholica) as a whole. Others like Seitz and Thomassinus favour a supernatural ownership by which God Himself was regarded as the true proprietor. To others again, and notably to Savigny, the theory has commended itself that the Church held property as a community, while many still more modern authorities, with Friedberg, Sägmüller, and Meurer, defend the view that each separate local church was regarded as an institution with proprietary rights and was identified, at least popularly, with its patron saint. According to this conception the saints were the successors of the pagan gods, and whereas previously Jupiter Tarpeius, or Diana of the Ephesians, had owned land and revenues and sacred vessels, so now under the Christian dispensation St. Michael or St. Mary or St. Peter were regarded as the proprietors of all that belonged to the churches that were respectively dedicated to them.

No doubt this view obtains some apparent support from the fact that almost everywhere, and notably in England, at the dawn of the Middle Ages we find testators bequeathing property to saints. In the oldest Kentish charter of which the text is preserved the newly-converted Ethelbert says: "To thee St. Andrew, and to thy church at Rochester where Justus the bishop presides, do I give a portion of my land." Even as late as the Domesday inquisition the saint is often depicted as the landowner. "St. Paul holds land, St. Constantine holds land, the Count of Mortain holds lands of St. Petroc-the church of Worcester, an episcopal church, has lands, and St. Mary of Worcester holds them" (Pollock and Maitland, "Hist. of English Law", I, 501). But the most recent authorities, and amongst others Professor Maitland himself in his second edition, are inclined to regard such phrases as mere popular locutions, a personification which must not be pressed as if it involved any serious theory as to the ownership of ecclesiastical goods. The truth seems to be, as Knecht has shown (System des Justinianischen Kirchenvermögensrechts, pp. 5 sq.), that the Christian Church was a unique institution which it was impossible for the traditional conceptions of Roman law to assimilate successfully. The Church had in the end to build up its own system of jurisprudence. In the meantime the rights of ecclesiastical property were protected efficiently enough in practice and the questions of legal theory did not occur, or at any rate did not press for a solution.

From the time of the Edict of Milan, issued by Constantine and Licinius in 313, we hear of the restoration of the property of Christians "known to belong to their community, that is to say their churches, and not to the individuals" ("ad jus corporis eorum, id est ecclesiarum, non hominum singulorum pertinentia"-Lactantius, "De morte pers.", xlviii), while a few years later by the Edict of 321 the right of bequeathing property by will "to the most holy and venerable community (concilio) of the Catholic faith" was guaranteed. Practically speaking there can be little doubt that this Christian "concilium", "collegium", "corpus" or "conventiculum" (the words principally used to indicate the body of true believers) denoted primarily the local Christian assemblies represented by their bishop and that it was to the bishop that the administration of such property was committed. What stands out most clearly from the enactments of the time of Justinian was the recognition of the right of individual Churches to hold property. Despite the recent attempt of Bondroit (De capacitate possidendi ecclesiæ, 123-36) to revive the old conception of a dominium eminens vested in the universal Church Catholic, there is not much evidence to show that such a view was current among the jurists of that age though it undoubtedly grew up later (see Gierke, "Genossenschaftsrecht", III, 8). So far as property went, Justinian busied himself with the rights of particular 'ekklesía, but at the same time he did encourage a centralizing tendency which left a supreme jurisdiction in the bishop's hands within the limits of the civitas, his own sphere of authority.

There can be no reasonable doubt that, with the exception of the monasteries which possessed their goods as independent institutions, though even then under the superintendence of the bishop (see authorities in Knecht, op. cit., p. 58), the whole ecclesiastical property of the diocese was subject to the bishop's control and at his disposal. His powers were very large, and his subordinates, the diocesan clergy, received only the stipends which he allowed them, while not only the support of his ecclesiastical assistants, who generally shared a common table in the bishop's house, but also the sums devoted to the relief of the sick and the poor, to the ransom of captives, as well as to the upkeep and repair of churches, all depended immediately upon him. No doubt custom regulated in some measure the distribution of the resources available. Popes Simplicitus in 475, Gelasius in 494 (Jaffé-Wattenbach, "Regesta", 636), and Gregory the Great in his answer to Augustine (Bede, "Hist. eccl.", I, xxvii) quotes as traditional the rule "that all emoluments that accrue are to be divided into four portions-one for the bishop and his household because of hospitality and entertainments, another for the clergy, a third for the poor, and a fourth for the repair of churches", and then texts naturally were incorporated at a later date in the "Decretum" of Gratian.

Church Property in the Middle Ages

Centralization of this kind, however, leaving everything, as it did, in the bishop's hands, was adapted only to peculiar local conditions and to an age which was far advanced in commerce and orderly government. For the sparsely settled and babarous regions occupied by the Teutonic invaders changes would sooner or later become necessary. But at first the Franks, Angles, and others, who accepted Christianity took over the system already existing in the Roman Empire. The Council of Orléans in 511 enacted in its fifteenth decree that every kind of contribution or rent offered by the faithful was in accordance with the ancient canons to remain entirely at the disposition of the bishop, though of the gifts actually presented at the altar he was to receive only a third part. So with regard to the Church's right of ownership, her freedom to receive legacies and the inviolability of her property, the pages of Gregory of Tours bear ample evidence to the generosity with which religion was treated during the early Merovingian period (cf. Hauck, "Kirchengeschichte Deutschlands", I, 134-7)-so much so that Chilperic (c. 580) complained that the royal treasury was exhausted because all the wealth of the kingdom had been transferred to the churches.

Almost everywhere the respect due to the rights of the clergy was put in the foremost place. As Maitland has remarked (Hist. of Engl. Law, I, 499), "God's property and the Church's twelvefold" are the first written words of English law. The consciousness of all that was involved in this code of King Ethelbert of Kent (c. 610) had evidently made a deep impression upon the mind of Bede. "Among other benefits", he says, "which he [Ethelbert] conferred upon the nation, he also, by the advice of wise persons, introduced judicial decrees, after the Roman model, which, being written in English, are still kept and observed by them. Among which he in the first place set down what satisfaction should be given by those who should steal anything belonging to the Church, the bishop or the other clergy, resolving to give protection to those whose doctrine he had embraced" (Hist. eccl., II, 5). Even more explicit is the famous privilege of Wihtred, King of Kent, a hundred years later (c. 696): "I, Wihtred, an earthly king, stimulated by the heavenly King and kindled with the zeal of righteousness, have learned from the institutes of our forefathers that no layman ought with right to appropriate to himself a church or any of the things which to a church belong. And therefore strongly and faithfully we appoint and decree, and in the name of Almighty God and of all saints we forbid to all Kings our successors, and to all earldom, and to all laymen, ever any lordship over churches, and over any of their possessions which I or my predecessors in days of old have given for the glory of Christ, and our lady St. Mary and the holy Apostles" (Hadden and Stubbs, "Councils", III, 244).

This touches no doubt upon a difficulty which had just begun to be felt and which for many centuries to come was to be a menace to the religious peace and well being of Christendom. As already suggested, the primitive idea of a single church in each civitas, governed by a bishop, who was assisted by presbiterium of subordinate clergy, was unworkable in rude and sparsely populated districts. In those more northerly regions of Europe which now began to embrace Christianity, village churches remote from one another had to be provided, and though many no doubt were founded and maintained by the bishops themselves (cf. Fustel de Coulanges, "La monarchie franque", 517) the religious centres, which became the parishes of a later date, developed in most cases out of the private oratories of the landowners and thegns. The great man built his church and then set himself to find a clerk who the bishop might ordain to serve it. It was not altogether surprising if he looked upon the church as his church seeing that it was built upon his land. But the bishop's consent was also needed. It was for him to consecrate the altar and from him that the ordination of the destined incumbent had to be sought. He will not act unless a sufficient provision of worldly goods is secured for the priest. Here we see the origin of patronage. This "advowson" (advocatio), or right to present to the benefice, is in origin an ownership of the soil upon which the church stands and an ownership of the land or goods set apart for the sustenance of the priest who serves it. Obviously the sense of proprietorship engendered by this relation was very dangerous to peace and to ecclesiastical liberty. Where such advowsons rested in the hands of the clergy or monastic institutions, there was nothing very unseemly in the idea of the patron "owning" the church, its lands, and its resources. In point of fact a large and ever-increasing number of parish churches were made over to religious houses. The monks provided a "vicar' to discharge the duties of parish-priest, but absorbed the revenues and tithes, spending them no doubt for the most part in works of utility and charity. But while the idea of a bishop of Paderborn for example presenting a parish church to a monastery "proprietario jure possidendum", "to be held in absolute ownership", excites no protest, the case was different when laymen took back to their own use the revenues which their fathers had allocated to the parish-priest, or when kings began to assert a patronage over ancient cathedrals, or again when the emperor wanted to treat the Church Catholic as a sort of fief and private possession of his own.

In any case it is plain that the general tendency of the parochial movement, more especially when the churches originated in the private oratories of the landowners, was to take much of the control of church property out of the hands of the bishops. A canon of the Third Council of Toledo (589), re-enacted subsequently elsewhere, speaks very significantly in this connexion. "There are many", it says, "who against the canonical rule, seek to get their own churches consecrated upon such terms as to withdraw their endowment (dotem) from the bishop's power of disposition. This we disapprove in the past and for the future forbid" (cf. Chalons in Mansi, X, 119). On the other hand many ordinances, for example that of the Council of Carpentras in 527 (Mansi, VIII, 707), make it quite clear that while the bishop's right was maintained in theory, the practice prevailed of leaving the offerings of the faithful to the church in which they were made so long as they were there needed. The payment of tithes, which seems first to have been put forward as a contribution of general obligation by certain bishops and synods in the sixth century (see Selborne, "Ancient facts and fiction", cap. xi), must have told in the same direction. It seems tolerably plain that this collection must always have been undertaken locally, and the threefold partition of tithes which is spoken of in the so-called "Capitulare episcoporum" and which reappears in the "Egbertine Exceptions" takes no account of any bishop's share. The tithes are to be devoted first to the upkeep of the church, secondly to the relief of the poor and of pilgrims, and thirdly to the support of the clergy themselves. Even if, according to the celebrated ordinance of Charlemagne in 778-9, the tithes which everyone was bound to give "were to be dispensed according to the bishop's commandment", local custom and tradition were everywhere placing checks upon any arbitrary apportionment. Usage varied considerably, but in almost all cases the resources so provided seem to have been expended parochially and not upon the general needs of the diocese.

It was in the ninth century particularly that not only in the matter of tithes but in the revenues of bishoprics and monasteries a general apportionment began to be arrived at. Both bishop and abbot had now become great personages, maintaining a certain state which could not be kept up without considerable expenditure. The common expenses of the diocese and the monastery tended more and more to become the private property of the bishop and the abbot. Disputes naturally arose, and before long there came a division of these resources. The bishop shared the revenues with the chapter and separate establishments, or mensæ, were created. Similarly the abbot lived apart from his monks and in a large measure the two systems became mutually independent. Naturally in the case of cathedral chapters the process of division went further and although the chapters still held property in common and administered it through a steward, or "œ;conomus", each of the canons in the course of time acquired a separate prebend, the administration of which was left entirely in his hands. The same freedom was gradually conceded to parish-priests and other members of the clergy, once they had duly been put in possession of their benefices. To all intents and purposes it might be said that in the later Middle Ages the parish-priest, whether rector or vicar, had succeeded, so far as concerned the limits of his own jurisdiction, to the administrative duties formerly exercised by the bishop.

Still the old idea that all church property was the "patrimony of the poor" was not lost sight of. In theory always, and most commonly in practice, the rector collected the revenues of his benefice, his tithes and other dues and offerings in trust for the poor of the parish, reserving only what was necessary for his own reasonable support and for the maintenance of the church and its services. In England there was a general and well-understood rule that the rector of the parish kept the chancel of the church in repair, while the parishioners were bound to see that the nave and the rest of the fabric was maintained in proper condition (see Bishop Quivil's "Exeter Decrees", cap. ix; Wilkins, "Concilia", II, 138). The long-protracted process of division and adjustment which led up to the comparatively stable and well-defined ownership of church property in the later Middle Ages was also, as might be expected, fertile in abuses. The impropriation of tithes by the monasteries set an example which unscrupulous and powerful laymen were not slow to follow, with more or less pretence of respecting the forms of law. Great landowners assuming patronal rights over the monasteries situated within their domains named themselves or other secular persons to be abbots and seized the revenues which the abbot separately enjoyed, while the patrons, or advocati, of individual parish churches were continually attempting to make simoniacal compacts with those whom they proposed to present to such benefices. But there can be no doubt that from the eleventh century onwards the more centralized government of the Church, as well as the marked progress made in the study of canon law, did much to check these abuses even during the worst times of the Great Schism.

Acquisition

Turning from early history to questions of principle we find it laid down by the canonists that as regards the acquisition of property the Church stands on the same footing as any corporation or any private individual. There is nothing in the nature of things to prevent her from receiving legacies or gifts either of movable or immovable goods, and she may also allow her possessions to grow by investments, by occupation, by prescription, or by the emoluments resulting from any legitimate form of contract. Indeed if the civil power interferes substantially with the freedom of collecting alms and receiving donations the rights of the Church are thereby invaded. The laws which were enacted in the latter part of the thirteenth century both in England and France to check the passing of property into "mortmain" were for this reason always regarded as wrong in principle, though the loss occasioned to the feudal lord by the cessation of reliefs, escheats, wardships, marriages, etc., when the land was made over to ecclesiastical uses could not be denied. No doubt this legislation of the civil power was in practice acquiesced in while licenses to acquire land in mortmain were obtainable without great difficulty upon adequate compensation being made (this was known in France as the droit d'amortisation, see Viollet, "Institutions politiques", II, 398-413), but the restrictions thus imposed were never accepted in principle. Such papal pronouncements as the "Clericis laicos" of Boniface VIII claimed that the Church possessed the right to acquire property by the donations of the faithful independently of any interference on the part of the State and that if compensation was made it should be done through the free action of the Holy See, in whom the dominion of all church goods ultimately rested, acting in willing response to any reasonable representations that might be addressed to it.

Later on and especially since the Reformation in countries where no state provision or endowment exists for the maintenance of the clergy, custom, generally endorsed by the enactments of provincial synods and the sanction of the Holy See, has introduced besides certain traditional jura, or rights, for spiritual services various exceptional methods of adding to the slender resources of the missions or stations. Such are for example bench-rents or charges for more advantageous seats, collections, charity sermons, and out-door collections made from house to house. At the same time the dangers of abuse in this direction are jealously watched. It is particularly insisted upon that there should be a sufficiency of free seats to allow the poor readily to discharge the obligation of attending Sunday Mass. The bishops are charged to see that bazaars and entertainments got up for church purposes are not an occasion of scandal. In particular any refusal of the sacraments to the sick and dying on the ground of a neglect to contribute to the support of the mission is severely condemned. So also are certain unseemly methods of soliciting alms, as for example when the priest quits the altar during the celebration of Mass to go round the church to make the collection himself or when promises of Masses and other spiritual favours in return for contributions are conspicuously made in the advertisement sheets of public journals or when the names of particular singers are placarded as soloists in the music performed at liturgical functions (cf. Laurentius, "Juris eccles. inst.", 640). In the past certain definite forms of alms were recognized as the ordinary sources through which the possessions of the Church were acquired. A word may be said upon some of the more noteworthy of these.

(1) Firstfruits

The offering of firstfruits which we meet in the Old Testament (Ex., xxiii, 16; xxxiv, 22; Deut., xxvi, 1-11) seems to have been taken over as a traditional means of contributing to the support of the pastors of the Church by the early Christians. It is mentioned in the "Didache", the "Didascalia", "Apostolic Constitutions", etc., but though for a while it was customary to make some similar contributions in kind at the Offertory of the Mass (a late mention may be found in the Council of Trullo in Mansi, "Concilia", XI, 956) still the practice gradually fell into disuse or took some other form, e.g. that of tithes, more particularly perhaps the "small tithes", sometimes known as "altalage".

(2) Tithes

This also was an Old-Testament ordinance (see Deut., xiv, 22-7) which many believe to have been identical in origin with firstfruits. Like the latter due, tithes were probably taken over by the early Christian Church at least in some districts, e.g. Syria. They are mentioned in the "Didascalia" and the "Apostolic Constitutions", but there is very little to show that the payment was at first regarded as of strict obligation. Still less can we be certain that there was continuity between the usage referred to in the Eastern Church of the fourth century and the institution which, as already mentioned above, we find described by the Council of Mâcon in 585. (See ).

(3) Dues

Dues, rather ill-defined and still imperfectly understood, which were known to the Anglo-Saxons as "church-shot". We meet them first in the laws of King Ine in 693, but they continued throughout all the Anglo-Saxon period and later. This is commonly considered to have been a contribution not paid according to the wealth and quality of the person paying it, but according to the value of the house in which he was living in the winter and identical with the see dues (cathedraticum) of a later age (see Kimble, "Saxons in England", II, 559 sq.). Other dues equally difficult to identify with exactness were the "light-shot" and the "soul-shot". Thus we find among the canons passed at Eynsham in 1009 such an ordinance as the following: "Let God's rights be paid every year duly and carefully, i.e. plough-alms 15 nights after Easter, tithe of young by Pentecost and of all fruits of the earth by All Hallows Mass (Nov. 1). And the Rome-fee by Peter's Mass (Aug. 1). And the Church-shot at St. Martins Mass (Nov. 11) and light-shot thrice a year, and it is most just that the men pay the soul-shot at the open grave."

(4) Funeral Dues

The last-mentioned contribution of "soul-shot", the precise signification of which is imperfectly understood, is typical of a form of offering which at many different epochs has been a recognized source of income to the Church. Even if we look upon the payments to certain clerks prescribed by Justinian (Novel., lix) as a fee for a material service rendered, rather than an offering to the Church, still from the time of the Council of Braga (can. xxi in Mansi, IX, 779) in 563, such money contributions though quite voluntary were constantly made in connexion with funerals. In medieval England the mortuary in the case of a person of knightly dignity commonly took the form of his war-horse with all its trappings. The horse was led up the church at the Offertory and presented at the altar rails. No doubt it was afterwards sold or redeemed for a money payment.

(5) Ordination Dues and other Offerings in connexion with the Sacraments

Just as it is recognized that Mass stipends, supposing the conditions to be observed which custom and ecclesiastical authority prescribe, may be accepted without simony, so at almost all periods of the Church's history offerings have been made in connexion with the administration of the sacraments. One of the commonest of these was the payment made to a bishop by the newly-ordained at the time of ordination. Though in the end prohibited by the Council of Trent (Sess. XXI, de ref., cap. i), such offerings had been customary from quite early ages. In some localities a payment was made at the time of the annual confession, but the dangers of abuse in this case were obvious and many synods condemned the practice. Less difficulty was felt in the case of baptism and matrimony and the exaction of such dues from those who can afford it may almost be described as general in the Church.

(6) Investments and Landed Property

But the most substantial source of revenue, and one that in view of the precarious nature of all other offerings may be considered as necessary to the Church's well-being, is land, or in more modern times investments bearing interest. Even before the toleration edict of Milan (313), it is clear from the restitution there spoken of that the Church must have owned considerable landed possessions, and from that time forward donations and legacies of property yielding annual revenues naturally multiplied. As already pointed out, the Church's right to receive such donations whether by will or inter vives was repeatedly acknowledged and confirmed. In medieval England it was usual by way of symbolical investiture, by which possession was given to the Church, to lay some material object upon the altar, for example a book, or parchment deed, or a ring, or most frequently of all a knife. This knife was often broken by the donor before it was laid upon the altar (see Reichel, "Church and Church Endowments" in "Transactions of the Devonshire Association", XXXIX, 1907, 377-81).

The modern exponents of the canon law, basing their teaching on the pronouncements of the Holy See and the decrees of provincial synods, lay great stress upon the principle that the offerings of the faithful are to be expended according to the intention of the donors. They also insist that where that intention is not clearly made known certain reasonable presumptions must be followed; for example in missionary centres where a church has not yet been built and organized donations are presumed to be made in view of the ultimate erection of such a church. So again money given at the Offertory in any quasi-parochial church, or collected by the faithful from house to house is not to be considered as a personal gift to the priest in charge but as intended for the support of the mission. Certain difficult questions which arise with regard to such contributions of the faithful in places where parochial duties are undertaken by the religious orders are legislated for in the Constitution "Romanos Pontifices" of Leo XIII, 8 May, 1881.

Foundations

By these are understood a transference of property to the Church or to some particular ecclesiastical institute in view of some service or work to be done either perpetually or for a long time. They are not valid until they are formally accepted, and for that purpose they have to be approved by the bishops and for all institutions under their jurisdiction. It is for the bishop to decide whether the endowment is sufficient for the charge, but the foundation once made, especially when the interests of a third party are involved, the conditions cannot ordinarily be changed, at least without appeal to the Holy See. In particular where a charge of Masses to be said has been accepted, and the foundation no longer meets that charge, application must be made to the Holy See before the number can be reduced.

Alienation

That the Church herself has the right to alienate ecclesiastical property follows as a consequence of the complete ownership by which she holds it, and for the same reason in the exercise of this right she is entirely independent of the civil authority. Still as the Church is only a persona moralis, she is in the position of a minor, and disposes of her property through her prelates and administrators. No one of these, not even the pope, has the power to alienate ecclesiastical property validly, without some proportionate reason (Wernz, "Jus Decret.", III, i, 170). Further, the alienation, which in accordance with numberless decrees and canons of synods (see the second part of the Decret., C. xii, q. 2, canons 20, 41, 52) is thus forbidden, comprehends not only the transference of the ownership of church goods but also all proceedings by which the property is burdened, e.g., by mortgages, or lessened in value or exposed to the risk of loss, or by which its revenues are for any notable time diverted from their proper uses. It is to this inalienability of all the possessions of the Church, which like the "hand of a dead man" never loosens its grip of what it once has clutched, that the prejudice already referred to against property held in "mortmain" grew up in the thirteenth century.

Still the prohibition of alienation is not absolute. It is prohibited only when done without just reason and without the requisite formalities. As "just reasons" the canonists recognize: (1) urgent necessity, for example, when a church is in debt and has no other means of raising the money needed; (2) manifest utility, such as may occur when an opportunity presents itself of acquiring a much-desired piece of land on exceptionally advantageous terms; (3) piety, e.g., if church goods are sold to ransom captives or to feed the starving poor; and (4) convenience, as in the case when the upkeep of certain possessions involves more trouble than they are worth. Besides a just reason, there is required, for the alienation of immovable goods (such as lands, houses, stock and other titles and rent-bearing investments) and movable goods of value, the observance of certain formalities. We may enumerate: (1) the preliminary discussion (tractatus), e.g., between the bishop and the chapter; (2) the consent of the bishop in those matters in which it is required; (3) a formal mandate for the act of alienation issued by competent authority, e.g., the vicar-general if he is empowered to do this; (4) the formal consent of interested parties and in many cases of the cathedral chapter.

Finally, the important constitution "Ambitiosæ" of Paul II, confirmed by Urban VIII, 7 Sept., 1624, and by Pius IX in the Constitution "Apostolicæ Sedis", 12 Oct., 1869, requires under penalty of excommunication the consent of the Holy See for the alienation of immovable property of great value. At one time it was contended that the Constitution "Ambitiosæ" had fallen into desuetude, but most canonists hold that in the face of the "Apostolicæ Sedis" this cannot now be maintained (see e.g., Wernz, III, n. 165, Sägmüller, 879). Still the requirements of the "Ambitiosæ" are much mitigated in practice by the faculties commonly conceded to bishops by the Holy See for ten years at a time to authorize the alienation of church property up to a not inconsiderable amount. In the United States the Third Plenary Council of Baltimore (1864) laid down that all acts of alienation or any equivalent disposition of property involving a sum greater than $5000 required papal permission, the consent of the diocesan consultors having been previously obtained. But, as the Plenary Council of Latin-America in 1899 (n. 870) also points out, "much depends on circumstances of time and place in deciding what ought to be regarded as property of small value (valor exigua), hence in this matter a decision to meet the case ought to be obtained by each country separately from the Apostolic See."

It will be readily understood that all forms of hypothecation or the raising of money upon the security of church property must be regarded as subject to the same conditions as alienation. In cap. iii, X, de pign. iii, 21, the "Corpus Juris" has preserved a decretal of Alexander III addressed to the Bishop of Exeter and deciding that in a case where the parish-priest had pawned a silver chalice and a Breviary and had died before redeeming them, his heirs were to be compelled under pain of excommunication to recover and restore the property to the church to which it belonged.

Prescription

With regard to prescription, also, ecclesiastical property has special privileges. Amongst private individuals the canon law recognized that possession with an unchallenged title for ten, twenty, or at most thirty years suffices to confer ownership, but in the case of immovable church property forty years are required, and against the Holy See one hundred years. As to the much controverted question regarding the true owner (subjectum dominii) of ecclesiastical property, the more approved view at the present day looks upon each institution as the proprietor of the goods belonging to it, but always in subordination to the supreme jurisdiction vested in the Holy See (Wernz, "Jus Decretalium", III, n. 138). As Wernz forcibly argues, if the Universal Church were itself the proprietor it would also be bound by all the debts by which any and every ecclesiastical institution was burdened. But neither the Universal Church nor the Holy See have ever admitted such an obligation, neither have they ever declared that one institution was liable for the debts incurred by another. At the same time, if the aim and purpose of any particular ecclesiastical institution comes to an end, and its moral personality is destroyed, its property passes by right to the ownership of the Universal Church, of which the institution in question was by supposition a member or part. Further, since it is in virtue of its connexion with the Universal Church that the right of acquiring and owning property belongs to any ecclesiastical organization, it is commonly held that if it revolt from the obedience of the Church and apostatize from the Catholic Church it has no longer any claims to the property which it originally acquired for Catholic purposes as a member of the Church.

Upon the principle that the civil power, as such, has neither the supreme dominion nor any just control over the administration of ecclesiastical property, except in so far as the Church by concordats or other agreements may freely concede certain powers to the State, all approved writers within the Church are agreed. Neither can there by any question that the Decree of the Council of Trent (Sess. XXII, de ref., cap. ii), upheld by the Constitution "Apostolicæ Sedis" of Pius IX, which pronounces an excommunication and other censures against the usurpers of church goods, is still in full vigour. It must be plain, then, that the recent wholesale confiscations in Italy, France, and other countries, have given rise to a vast number of very difficult questions as to the extent to which those who in various ways have participated in these confiscations are subject to the censures pronounced against the usurpers of the Church's goods. The position of those who participate in the act of spoliation by aid, counsel, or favour, in the case of the ecclesiastical property of the Papal states, is different from those who co-operate in the same way elsewhere. The Encyclical "Respicientes" of 1 Nov., 1870, dealing with the former class clearly extends the excommunication to all who co-operate, whereas in France and elsewhere offenders fall only under the common law of the Church, and by this, those who merely take part in the liquidation of property, or act as clerks, for instance, in the proceedings, do not seem to incur the censures, but only those who are the actual spoliators and usurpers of the property or those who order and plan it; the law affects, in other words, the principals and not those who are merely accessories. The question of the application of these censures is very fully discussed, amongst other recent authorities, by Card. Gennari (Consultations, I) and by the Abbé Boudinhon in the "Canoniste Contemporain" (March, 1909-Oct., 1910).

Apart from such determined acts of spoliation as those which followed the occupation of Rome (1870) and the recent Associations and Separation Laws in France, the clergy are generally instructed to comply, as far as may be possible without sacrifice of principle, with the requirements of the civil law, if only in the interest of the property of which they are the administrators. These and similar points are dwelt upon in the Decrees of the Second Plenary Council of Westminster (1885), which dealt at some length with the question of ecclesiastical property. For example, the Fathers of the Council direct that "no administrator of a mission should draw up any legal document concerning church property, without the express authority of the bishop, who will not fail to consult lawyers most skilled in these matters, and subject everything to the most careful revision". So, too, it directs that "all buildings belonging to a mission should be most carefully insured against fire", and lays down rules as to the destination of Mass offerings, stole fees (jura stola), etc.

For Ireland some similar regulations were made in the Maynooth Synod of 1875, and we may note how the synod, after directing that a two-fold inventory of church property should be made, one copy to be kept by the bishop in the diocesan archives and the other to be kept among the parish records, lays down the following wise rules respecting the requirements of the civil law: "Lest ecclesiastical property fall into other hands on account of the defects of the law, the bishop will take heed that the titles or deeds may be accurately drawn up according to the civil law and in the name of three or four trustees (curatorum). The trustees are to be the bishop of the diocese, the parish-priest or other whose property is concerned, the vicar-general or other person, prudent, well known for uprightness, and for being versed in matters of this sort. These trustees should meet once a year, so as to provide for the security of the aforesaid goods. And if one of them die the others are bound to appoint another in his place. All bishops or priests having possession or administration in any way of such property are bound to make their wills, and these wills are to be kept by the bishop; and to no one in in extremis will the last sacraments be given unless he makes his will or promises to do so."

The great and classical work dealing with the whole question of church property is Thomassin, Vetus et nova ecclesia disciplina circa beneficia et beneficiarios, of which several editions have been published, including one at least in French. All the more copious treatises upon canon law, such as those of Phillips, Vering, Schmalzgrüber, necessarily deal with the matter at some length, and among modern authorities special mention should be made of Wernz, Jus Decretalium, III (Rome, 1908); Sägmüller, Kirchenrecht (Freiburg, 1909); Laurentius, Instit. juris eccl. (Freiburg, 1908); see also Mamachi, Del diritto libero della chiesa di acquistare e possedere boni temporali (Venice, 1766); Meurer, Der Begriff und Eigentümer der heiligen Sachen (Düsseldorf, 1885); Bondroit, De capacitate possidendi ecclesia (Louvain, 1900); Scheys, de jure ecclesiæ acquirendi (Louvain, 1892); Knecht, System des justinianischen Kirchenvermügenrechts (Stuttgart, 1905); Moulart, L'eglise et l'état (Paris, 1902); Gennari, Consultations de morale, de droit canonique et de liturgie (1907-9); Boudinhon, Biens d'église et peines canoniques, in Canoniste contemporain (April, 1909-Oct., 1910); Fourneret in Dict. de théol. Cath., s. v. Biens ecclésiastiques;Taunton, Law of the Church (London, 1905).

Herbert Thurston.