Ecclesiastical Property

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Abstract right of ownership

That theChurch has theright 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, thistruth has met with many contradictors.Scandalized by frequent examples ofgreed, or misled by an impossible ideal of aclergy entirely spiritualized and raised above human needs,Arnold of Brescia, theWaldenses, then somewhat laterMarsilius of Padua, and finally theWycliffites, formulated various extreme views regarding the lack of temporal resources which befittedministers of the Gospel. UnderJohn XXII thedoctrine 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 HisApostles heldtrue ownership in the temporal things which they possessed, and that the goods of theChurch were not rightfully at the disposition of the emperor (seeDenzinger-Bannwart, nn. 494-5). Somewhat less than a century later theerrors ofWycliff andHus were condemned at theCouncil of Constance (Denzinger-Bannwart, nn. 586, 598, 612, 686-6, etc.) and it was equivalentlydefined thatecclesiastical persons might withoutsin hold temporal possessions, that thecivil authorities had noright 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 byPius IX, who in theEncyclical "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 soundtheology 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 theChurch 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 theChurch as an organized and visiblesociety, performing publicduties whether of worship or administration, requires material resources for the orderly discharge of theseduties. Neither could this end be sufficiently attained if the resources were entirely precarious or if theChurch were hampered in her use of them by the constant interference of thecivil authority. In the second placeOld Testament analogy (see, e.g.,Numbers 18:8-25), the practice of the Apostles (John 12:6;Acts 4:24-5) with certain explicit utterances ofSt. Paul, for example, the argument in1 Corinthians 9:3 sq., and finally the interpretation of thedoctors andpastors of theChurch at all periods, recognize no dependence 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 theChurch hasproved that she takes for granted her dominion over the goods bestowed upon her by the charity of thefaithful. The twelfth canon of theŒcumencal Council of Lyons (1274) pronouncesexcommunicationipso facto against thoselay persons who seize and detain the temporal possessions of theChurch (see Friedberg, "Corpus Juris", II, 953 and 1059) and theCouncil of Trent followed suit in its Sess. XXII (De ref. C. xi) by launchingexcommunicationslatæ sententia against those who usurped many different kinds of ecclesiastical property.

Subject of rights of property

But while the abstract right of theChurch and her representatives to holdproperty 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. Theidea of a corporate body, as that of an organized group of men (universitas) which hasrights andduties other than therights andduties 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 thepersona ficta, dear to themedieval legists and perpetuated by men like Savigny, is not perhaps quite so much in vogue among modern students ofRoman 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 theindividuals of which it was composed, and on the other hand that it could not be called into existence by private agreement. It required asenatus 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 ofproperty in the case of theChristian communities established in the Roman Empire, but the question in point of fact was complicated by a survival of theideas which attached to what were calledres sacræ in the old days ofpaganism. This title of "sacred things" was given to allproperty or utensilsconsecrated to the gods, though it was required that there should be some authoritative recognition of suchconsecration. Asres sacræ these things were regarded as in a sense withdrawn from the exercise of ordinary ownership, and formed a category apart. Thetruth seems to be that the gods themselves inpagan times were often conceived of as the owners. This is suggested by the fact that while it was ruled that the gods, i.e., theirtemples, could not inherit at law, still certaindeities were explicitly exempted from this inhibition and were allowed to inherit as any private individual inherited. Suchdeities were, for example, Jupiter Tarpeius atRome, Apollo Didymæus ofMiletus, Diana of the Ephesians, and others (Ulpian, "Frag.", 22, 6). In similar wise whenChristianity became the establishedfaith of the empire,"Jesus Christ" was often appointed heir, and Justinian construed such an appointment as a gift to theChurch of the place of the testator's domicile (Codex 1, 2, 25). The same principles were followed when an archangel or amartyr was appointed heir, and this, Justinian tells us, was sometimes done byeducated 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). Thecivil power in any case seems to have assumed a certain protective control overres sacræ probably with the view of safeguarding their inviolability. "Sacred things", we read, "are things that have been duly, that is by thepriests (pontifices),consecrated toGod—sacred buildings, for instance, and gifts duly dedicated to the service ofGod. 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 ofdebt, of a church's superfluous vessels but not of its immovables or things reallynecessary.

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 theserights was ever adopted. In later times many canonists, like Phillips and Lammer, have maintained that the property was vested in theChurch (ecclesia catholica) as a whole. Others like Seitz andThomassinus favour asupernatural ownership by whichGod Himself was regarded as thetrue proprietor. To others again, and notably to Savigny, the theory has commended itself that theChurch heldproperty 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 proprietaryrights and was identified, at least popularly, with itspatron saint. According to this conception thesaints were the successors of thepagan gods, and whereas previously Jupiter Tarpeius, or Diana of the Ephesians, had owned land and revenues andsacred vessels, so now under theChristian dispensationSt. 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.

Nodoubt this view obtains some apparent support from the fact that almost everywhere, and notably inEngland, at the dawn of theMiddle Ages we find testators bequeathingproperty tosaints. 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 thebishop presides, do I give a portion of my land." Even as late as the Domesday inquisition thesaint 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 ofWorcester, an episcopal church, has lands, and St. Mary ofWorcester 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 ofecclesiastical goods. Thetruth seems to be, as Knecht has shown (System des Justinianischen Kirchenvermögensrechts, pp. 5 sq.), that theChristian Church was a unique institution which it was impossible for the traditional conceptions ofRoman law to assimilate successfully. TheChurch had in the end to build up its own system ofjurisprudence. In the meantime therights 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 ofMilan, issued by Constantine and Licinius in 313, we hear of the restoration of theproperty ofChristians "known to belong to their community, that is to say their churches, and not to theindividuals" ("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 bequeathingproperty by will "to the most holy and venerable community (concilio) of theCatholicfaith" was guaranteed. Practically speaking there can be littledoubt that thisChristian "concilium", "collegium", "corpus" or "conventiculum" (the words principally used to indicate the body oftrue believers) denoted primarily the localChristian assemblies represented by theirbishop and that it was to thebishop that the administration of suchproperty 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 holdproperty. Despite the recent attempt of Bondroit (De capacitate possidendi ecclesiæ, 123-36) to revive the old conception of adominium eminens vested in the universal ChurchCatholic, 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 asproperty went, Justinian busied himself with therights of particular’ekklesía, but at the same time he did encourage a centralizing tendency which left a supremejurisdiction in thebishop's hands within the limits of thecivitas, his own sphere of authority.

There can be no reasonabledoubt that, with the exception of themonasteries which possessed their goods as independent institutions, though even then under the superintendence of thebishop (see authorities in Knecht, op. cit., p. 58), the whole ecclesiastical property of thediocese was subject to thebishop's control and at his disposal. His powers were very large, and his subordinates, thediocesanclergy, received only the stipends which he allowed them, while not only the support of hisecclesiastical assistants, who generally shared a common table in thebishop's house, but also the sums devoted to the relief of the sick and thepoor, to the ransom of captives, as well as to the upkeep and repair of churches, all depended immediately upon him. Nodoubt custom regulated in some measure the distribution of the resources available. Popes Simplicitus in 475, Gelasius in 494 (Jaffé-Wattenbach, "Regesta", 636), andGregory 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 thebishop'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 barbarous regions occupied by the Teutonic invaders changes would sooner or later becomenecessary. But at first theFranks, Angles, and others, who acceptedChristianity took over the system already existing in the Roman Empire. The Council of Orléans in 511 enacted in its fifteenthdecree 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 thebishop, though of the gifts actually presented at the altar he was to receive only a third part. So with regard to theChurch's right of ownership, her freedom to receive legacies and the inviolability of herproperty, the pages ofGregory 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 therights of theclergy was put in the foremost place. As Maitland has remarked (Hist. of Engl. Law, I, 499), "God'sproperty and theChurch'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 ofBede. "Among other benefits", he says, "which he [Ethelbert] conferred upon the nation, he also, by the advice of wisepersons, 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 theChurch, thebishop or the otherclergy, resolving to give protection to those whosedoctrine 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 thezeal of righteousness, have learned from the institutes of our forefathers that nolayman 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 anddecree, and in the name ofAlmighty God and of allsaints we forbid to all Kings our successors, and to all earldom, and to alllaymen, 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 ofChrist, and our lady St. Mary and the holy Apostles" (Hadden and Stubbs, "Councils", III, 244).

This touches nodoubt 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 ofChristendom. As already suggested, the primitiveidea of a single church in each civitas, governed by abishop, who was assisted bypresbiterium of subordinateclergy, was unworkable in rude and sparsely populated districts. In those more northerly regions ofEurope which now began to embraceChristianity, village churches remote from one another had to be provided, and though many no doubt were founded and maintained by thebishops themselves (cf. Fustel de Coulanges, "La monarchie franque", 517) the religious centres, which became theparishes of a later date, developed in most cases out of the privateoratories of the landowners and thegns. The great man built his church and then set himself to find a clerk who thebishop 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 thebishop's consent was also needed. It was for him toconsecrate the altar and from him that theordination of the destined incumbent had to be sought. He will not act unless a sufficient provision of worldly goods is secured for thepriest. Here we see the origin of patronage. This "advowson" (advocatio), or right to present to thebenefice, 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 thepriest who serves it. Obviously the sense of proprietorship engendered by this relation was very dangerous to peace and toecclesiastical liberty. Where such advowsons rested in the hands of theclergy or monastic institutions, there was nothing very unseemly in theidea of the patron "owning" the church, its lands, and its resources. In point of fact a large and ever-increasing number ofparish churches were made over toreligious houses. Themonks provided a "vicar' to discharge theduties ofparish-priest, but absorbed the revenues andtithes, spending them nodoubt for the most part in works of utility and charity. But while theidea of abishop ofPaderborn for example presenting aparish church to amonastery "proprietario jure possidendum", "to be held in absolute ownership", excites no protest, the case was different whenlaymen took back to their own use the revenues which their fathers had allocated to theparish-priest, or when kings began to assert a patronage over ancientcathedrals, or again when the emperor wanted to treat theChurchCatholic as a sort of fief and private possession of his own.

In any case it is plain that the general tendency of theparochial movement, more especially when the churches originated in the privateoratories of the landowners, was to take much of the control of church property out of the hands of thebishops. 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 churchesconsecrated upon such terms as to withdraw their endowment (dotem) from thebishop's power of disposition. This we disapprove in the past and for the future forbid" (cf.Châlons inMansi, 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 thebishop's right was maintained in theory, the practice prevailed of leaving the offerings of thefaithful to the church in which they were made so long as they were there needed. The payment oftithes, which seems first to have been put forward as a contribution of generalobligation by certainbishops andsynods 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 oftithes which is spoken of in the so-called "Capitulare episcoporum" and which reappears in the "Egbertine Exceptions" takes no account of anybishop's share. Thetithes are to be devoted first to the upkeep of the church, secondly to the relief of the poor and ofpilgrims, and thirdly to the support of theclergy themselves. Even if, according to the celebrated ordinance ofCharlemagne in 778-9, thetithes 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 thediocese.

It was in the ninth century particularly that not only in the matter oftithes but in the revenues ofbishoprics andmonasteries a general apportionment began to be arrived at. Bothbishop andabbot had now become great personages, maintaining a certain state which could not be kept up without considerable expenditure. The common expenses of thediocese and themonastery tended more and more to become the privateproperty of thebishop and theabbot. Disputes naturally arose, and before long there came a division of these resources. Thebishop shared the revenues with the chapter and separate establishments, ormensæ, were created. Similarly theabbot lived apart from hismonks and in a large measure the two systems became mutually independent. Naturally in the case ofcathedral chapters the process of division went further and although the chapters still heldproperty in common and administered it through a steward, or "œconomus", each of the canons in the course oftime acquired a separateprebend, the administration of which was left entirely in his hands. The same freedom was gradually conceded toparish-priests and other members of theclergy, once they had duly been put in possession of theirbenefices. To all intents and purposes it might be said that in the laterMiddle Ages theparish-priest, whetherrector or vicar, had succeeded, so far as concerned the limits of his ownjurisdiction, to the administrativeduties formerly exercised by thebishop.

Still the oldidea that all church property was the "patrimony of the poor" was not lost sight of. In theory always, and most commonly in practice, therector collected the revenues of hisbenefice, histithes and other dues and offerings in trust for the poor of theparish, reserving only what wasnecessary for his own reasonable support and for the maintenance of the church and its services. InEngland there was a general and well-understood rule that therector of theparish kept thechancel of the church in repair, while the parishioners were bound to see that thenave 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 laterMiddle Ages was also, as might be expected, fertile in abuses. The impropriation oftithes by themonasteries set an example which unscrupulous and powerfullaymen were not slow to follow, with more or less pretence of respecting the forms of law. Great landowners assuming patronalrights over themonasteries situated within their domains named themselves or other secularpersons to beabbots and seized the revenues which theabbot separately enjoyed, while the patrons, oradvocati, of individualparish churches were continually attempting to makesimoniacal compacts with those whom they proposed to present to suchbenefices. But there can be nodoubt that from the eleventh century onwards the more centralized government of theChurch, 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 ofproperty theChurch 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 thecivil power interferes substantially with the freedom of collectingalms and receiving donations therights of theChurch are thereby invaded. Thelaws which were enacted in the latter part of the thirteenth century both inEngland andFrance to check the passing ofproperty into"mortmain" were for this reason always regarded as wrong in principle, though the loss occasioned to thefeudal lord by the cessation of reliefs, escheats, wardships,marriages, etc., when the land was made over toecclesiastical uses could not be denied. Nodoubt thislegislation of thecivil power was in practice acquiesced in while licenses to acquire land inmortmain were obtainable without great difficulty upon adequate compensation being made (this was known inFrance as thedroit d'amortisation, see Viollet, "Institutions politiques", II, 398-413), but the restrictions thus imposed were never accepted in principle. Suchpapal pronouncements as the "Clericis laicos" ofBoniface VIII claimed that theChurch possessed theright to acquireproperty 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 theHoly 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 theReformation in countries where no state provision or endowment exists for the maintenance of theclergy, custom, generally endorsed by the enactments ofprovincial synods and the sanction of theHoly See, has introduced besides certain traditionaljura, orrights, 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 theobligation of attending Sunday Mass. Thebishops are charged to see that bazaars and entertainments got up for church purposes are not an occasion ofscandal. In particular any refusal of thesacraments 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 solicitingalms, as for example when thepriest 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 atliturgical functions (cf. Laurentius, "Juris eccles. inst.", 640). In the past certain definite forms ofalms were recognized as the ordinary sources through which the possessions of theChurch were acquired. A word may be said upon some of the more noteworthy of these.

Firstfruits

The offering offirstfruits which we meet in theOld Testament (Exodus 23:16;34:22;Deuteronomy 26:1-11) seems to have been taken over as a traditional means of contributing to the support of thepastors of theChurch by the earlyChristians. 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 theOffertory of the Mass (a late mention may be found in the Council of Trullo inMansi, "Concilia", XI, 956) still the practice gradually fell into disuse or took some other form, e.g. that oftithes, more particularly perhaps the "small tithes", sometimes known as "altalage".

Tithes

This also was anOld-Testament ordinance (seeDeuteronomy 14:22-7) which many believe to have been identical in origin withfirstfruits. Like the latter due,tithes were probably taken over by the earlyChristian 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 strictobligation. Still less can we be certain that there was continuity between the usage referred to in theEastern Church of the fourth century and the institution which, as already mentioned above, we find described by the Council of Mâcon in 585. (SeeT).

Dues

Dues, rather ill-defined and still imperfectly understood, which were known to the Anglo-Saxons as "church-shot". We meet them first in thelaws 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 theperson paying it, but according to the value of the house in which he was living in the winter and identical with thesee 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: "LetGod'srights be paid every year duly and carefully, i.e. plough-alms 15 nights afterEaster,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."

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 theChurch. 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 theChurch, still from the time of the Council ofBraga (can. xxi inMansi, IX, 779) in 563, such money contributions though quitevoluntary were constantly made in connexion with funerals. InmedievalEngland the mortuary in the case of aperson of knightly dignity commonly took the form of his war-horse with all its trappings. The horse was led up the church at theOffertory and presented at thealtar rails. Nodoubt it was afterwards sold or redeemed for a money payment.

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 andecclesiastical authority prescribe, may be accepted withoutsimony, so at almost all periods of theChurch's history offerings have been made in connexion with the administration of thesacraments. One of the commonest of these was the payment made to abishop by the newly-ordained at the time ofordination. Though in the end prohibited by theCouncil 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 manysynods condemned the practice. Less difficulty was felt in the case ofbaptism and matrimony and the exaction of such dues from those who can afford it may almost be described as general in theChurch.

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 asnecessary to theChurch's well-being, is land, or in more modern times investments bearing interest. Even before the toleration edict ofMilan (313), it is clear from the restitution there spoken of that theChurch must have owned considerable landed possessions, and from that time forward donations and legacies ofproperty yielding annual revenues naturally multiplied. As already pointed out, theChurch's right to receive such donations whether by will orinter vives was repeatedly acknowledged and confirmed. InmedievalEngland it was usual by way of symbolical investiture, by which possession was given to theChurch, 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 theHoly See and the decrees ofprovincial synods, lay great stress upon the principle that the offerings of thefaithful 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 theOffertory in any quasi-parochial church, or collected by the faithful from house to house is not to be considered as a personal gift to thepriest 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 whereparochialduties are undertaken by thereligious orders are legislated for in the Constitution"Romanos Pontifices" ofLeo XIII, 8 May, 1881.

Foundations

By these are understood a transference ofproperty to theChurch or to some particularecclesiastical 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 thebishops and for all institutions under theirjurisdiction. It is for thebishop 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 theHoly 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 theHoly See before the number can be reduced.

Alienation

That theChurch herself has theright 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 thecivil authority. Still as theChurch is only apersona moralis, she is in the position of a minor, and disposes of herproperty through herprelates and administrators. No one of these, not even thepope, 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 ofsynods (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 theproperty 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 theChurch, which like the "hand of a dead man" never loosens its grip of what it once has clutched, that the prejudice already referred to againstproperty 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 indebt 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 thebishop and the chapter; (2) the consent of thebishop in those matters in which it is required; (3) a formal mandate for the act of alienation issued by competent authority, e.g., thevicar-general if he is empowered to do this; (4) the formal consent of interested parties and in many cases of thecathedral chapter.

Finally, the important constitution "Ambitiosæ" ofPaul II, confirmed byUrban VIII, 7 Sept., 1624, and byPius IX in the Constitution "Apostolicæ Sedis", 12 Oct., 1869, requires under penalty ofexcommunication the consent of theHoly See for the alienation of immovableproperty 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 tobishops by theHoly See for ten years at a time to authorize the alienation of church property up to a not inconsiderable amount. In theUnited States the ThirdPlenary Council of Baltimore (1864) laid down that all acts of alienation or any equivalent disposition ofproperty involving a sum greater than $5000 requiredpapal permission, the consent of thediocesan 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 asproperty of small value (valor exigua), hence in this matter a decision to meet the case ought to be obtained by each country separately from theApostolic 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 adecretal ofAlexander III addressed to theBishop ofExeter and deciding that in a case where theparish-priest had pawned a silverchalice and aBreviary and had died before redeeming them, his heirs were to be compelled under pain ofexcommunication to recover and restore theproperty to the church to which it belonged.

Prescription

With regard to prescription, also, ecclesiastical property has special privileges. Amongst privateindividuals 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 theHoly See one hundred years. As to the much controverted question regarding thetrue 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 supremejurisdiction vested in theHoly 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 thedebts by which any and everyecclesiastical institution was burdened. But neither the Universal Church nor theHoly See have ever admitted such anobligation, neither have they ever declared that one institution was liable for thedebts incurred by another. At the same time, if the aim and purpose of any particularecclesiastical institution comes to an end, and its moralpersonality is destroyed, itsproperty 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 owningproperty belongs to anyecclesiastical organization, it is commonly held that if it revolt from the obedience of theChurch andapostatize from theCatholicChurch it has no longer any claims to theproperty which it originally acquired forCatholic purposes as a member of theChurch.

Upon the principle that thecivil power, as such, has neither the supreme dominion nor any just control over the administration of ecclesiastical property, except in so far as theChurch byconcordats or other agreements may freely concede certain powers to the State, all approved writers within theChurch are agreed. Neither can there be any question that theDecree of theCouncil of Trent (Sess. XXII, de ref., cap. ii), upheld by the Constitution "Apostolicæ Sedis" ofPius IX, which pronounces anexcommunication and other censures against the usurpers of church goods, is still in full vigour. It must be plain, then, that the recent wholesale confiscations inItaly,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 theChurch'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 thePapal states, is different from those who co-operate in the same way elsewhere. TheEncyclical "Respicientes" of 1 Nov., 1870, dealing with the former class clearly extends theexcommunication to all who co-operate, whereas inFrance and elsewhere offenders fall only under thecommon law of theChurch, and by this, those who merely take part in the liquidation ofproperty, 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 theproperty or those who order and plan it; thelaw 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 ofRome (1870) and the recent Associations and Separation Laws inFrance, theclergy are generally instructed to comply, as far as may be possible without sacrifice of principle, with the requirements of thecivil law, if only in the interest of theproperty 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 thebishop, 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.

ForIreland 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 thebishop in thediocesan archives and the other to be kept among theparish records, lays down the following wise rules respecting the requirements of thecivil law: "Lest ecclesiastical property fall into other hands on account of the defects of thelaw, thebishop will take heed that the titles or deeds may be accurately drawn up according to thecivil law and in the name of three or four trustees (curatorum). The trustees are to be thebishop of thediocese, theparish-priest or other whoseproperty is concerned, thevicar-general or otherperson, 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. Allbishops orpriests having possession or administration in any way of suchproperty are bound to make their wills, and these wills are to be kept by thebishop; and to no one inin extremis will the lastsacraments be given unless he makes his will or promises to do so."

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