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Ecclesiastical property

 This article incorporates text from a publication now in the public domain: Herbermann, Charles, ed. (1911). "Property Ecclesiastical". Catholic Encyclopedia. Vol. 12. New York: Robert Appleton Company. {{cite encyclopedia}}: |contributor= ignored (help); Unknown parameter |next= ignored (help); Unknown parameter |previous= ignored (help)

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 of temporal goods

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.

Stipends

(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.

 This article incorporates text from a publication now in the public domain: Herbermann, Charles, ed. (1912). "Stipend". Catholic Encyclopedia. Vol. 14. New York: Robert Appleton Company. {{cite encyclopedia}}: |contributor= ignored (help); Unknown parameter |next= ignored (help); Unknown parameter |previous= ignored (help); Unknown parameter |wikipedia= ignored (help)

[Lat. stipendium, a tax, import, tribute; in military use, pay, salary; contraction for stipipendium, from stips, a gift, donation, alms (given in small coin), and pendere, to weigh out]

A stipend is a fixed pay, salary; retribution for work done; the income of an ecclesiastical living. In canon law stipend is a general designation of means of support (sustentatio congrua or congrua) provided for the clergy. In the early ages of the Church no special provision was made for the maintenance of the clergy. St. Paul, the tent-maker, set the example (I Cor., iv, 12) of earning his own livelihood. In imitation of him many clerics worked at some craft or followed some profession, living by the labour of their own hands. Even in the fifth and sixth centuries there were bishops, priests, and deacons, who in keeping with the advice of the Fourth Council of Carthage (a. 398, cann. 52, 53) supported themselves by their own labour. Early legislation (Canon. Apost., can. 6), which forbade the clergy to take up certain occupations and professions, is an indication that clerics sought to maintain themselves. Many of the laity, however, even from the beginning, were quick to follow the instructions of Christ and his Apostles (Matt., x, 10; Luke, x, 7; I Cor., ix, 13; I Tim., v, 17-18), founded on the practice in vogue among the Jews (Lev., xxvii, 30 sq.; Num., xviii, 23 sq.; etc.), who gave tithes of all their goods and produce for the sustenance of priests and levites. Thus did the laity provide for the bodily welfare of the clergy in return for the spiritual gifts received through their ministry. Later the payment of tithes was frequently insisted on by St. Ambrose, St. Augustine, and others (Thomassin, "Vet. et nov. eccl. disc.," III, II, xii, xiv). The Synods of Tours (560) and Mâcon (586) strenuously exhorted the faithful to pay the tithes ordained by God. Charlemagne made their payment obligatory on his subjects by a royal ordinance of 779, the requirements of which he himself faithfully observed. The obligation of giving tithes has long since ceased almost universally, but the faithful, of course, must contribute to the proper support of sacred ministers.

The voluntary offerings of the people made on Sundays and other occasions were also intended in part for the maintenance of clerics, that they might not be compelled to engage in pursuits which might ill become the ecclesiastical state or withdraw the clergy from their spiritual work. In most countries the offerings of the laity still constitute the chief support of the clergy. A quasi-contract obtains between the parish on the one hand and the clergy who minister to its wants on the other. Pastor and assistants are engaged in the work of the parish and receive in return a definite salary from the income or revenues of the parish. These revenues are derived from pewrental, offerings, collections, subscriptions, and whatever other sources of income the parish may possess. Clerics engaged in teaching or other work not parochial are supported in much the same way, obtaining a salary from the institution by which they are employed. The salary (congrua) of pastors and assistants should be a fixed sum, such as will suffice for their necessities. The amount paid will depend on various circumstances of time, place, persons, income of the parish, and duties of the incumbent. The Council of Trent (Sess. XXIV, c. 13, de ref.) directs bishops to arrange. the congrua in the most convenient way. Salaries of pastors in the United States are determined in diocesan synods or otherwise with the advice of the diocesan consultors (Cone. Plen. Balt. III, n. 273). Stole fees (jura stolæ), or perquisites received on the occasion of the administration of the sacraments or sacramentals, are not in the nature of stipends. At times, nevertheless, by diocesan regulations, they form a portion of the salary of pastor and assistants.

In regard to so-called state aid of the clergy, the State began indirectly to help the clergy in the time of Constantine, who gave a legal existence to churches as corporate bodies, permitting them to receive donations and legacies and to hold the same in perpetuity (Cod. Theod., XVI, 2, 4). He ordered contributions of grain to be given annually to the clergy out of the public granaries. He contributed large sums from his own resources for the support of the clergy in Africa, and exempted the Church from imposts in an edict imposing a general tax (Cod. Theod., XI, i, 1). Direct support of the clergy by the State is of comparatively modern origin, having developed since the Reformation. It obtains particularly in Catholic countries that have entered into a concordat, or treaty, with the Holy See for the support of the clergy. This support is in recompense, far inadequate indeed, for the sequestration of ecclesiastical funds and property. Austria, Spain, Italy, and certain countries of Central and South America thus directly support the clergy, paying salaries to bishops, vicars-general, pastors, and assistants. France and Portugal, as well as Cuba, Porto Rico, and the Philippines, when under Spanish rule, did the same.

Since the time of Constantine the right of the Church to possess temporal goods has been universally acknowledged and protected by civil governments with some exceptions. These exceptions refer chiefly to bequests and legacies. The possession by the Church of temporal goods and the surrendering of the same to the clergy for their sustenance gave rise to benefices, the fruits or income of which constitute the chief provision for the maintenance of the clergy possessing them. The fruits of a benefice will maintain the incumbent, even though he have private means of support. He should have not only what is necessary for sustenance, but sufficient for fitting recreation and hospitality, and a modest portion for future contingencies: he may also assist near relatives to some extent. If anything remain, it is to be used in charitable works. Ecclesiastical goods are not to be bequeathed in any considerable quantity to profane purposes. There are other methods in vogue for the support of the clergy akin to, or divisions of, those mentioned: voluntary offerings, tithes, quasi-contracts, state aid, and benefices. Stipends for the application of Masses were originally intended for the daily maintenance of the celebrant. (For treatment of the Mass-stipend see MASS, SACRIFICE OF THE.) It is in this latter sense that the word is mostly used at present, though it occasionally designates certain allowances made from ecclesiastical foundations in favour of students seeking a more special or more profound training in the arts or sciences. (See BENEFICE; ENDOWMENT; TITHES.)

ANDREW B. MEEHAN.

(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.

Pious wills and legacies

 This article incorporates text from a publication now in the public domain: Herbermann, Charles, ed. (1910). "Legacies". Catholic Encyclopedia. Vol. 9. New York: Robert Appleton Company. {{cite encyclopedia}}: |contributor= ignored (help); Unknown parameter |next= ignored (help); Unknown parameter |previous= ignored (help)

(Latin Legata).

I. DEFINITION

In its most restricted sense, by a pious legacy or bequest (legatum pium) is understood, the assigning, by a last will, of a particular thing forming part of an estate, to a church or an ecclesiastical institution. It differs from a testament in favour of pious works (testamentum ad pias causas) in this, that in a testament the favoured institution is made the true heir of the testator, continuing as it were his person. Moreover, a testament deals with the whole property, the patrimony of the testator. It results from this that a pious legacy or bequest need not necessarily be made the body of a will; it can be inserted in a codicil. A pious bequest differs likewise from a "donatio mortis causa", which is a contract, whereas thc bequest is made by a unilateral act. It is distinguished, finally, from a foundation, which can be made during life as well as by provision in a will, and which always imposes on the favoured establishment obligations, either perpetual or of fairly long duration. A legacy may be but is not necessarily a foundation.

II. RIGHT OF THE CHURCH TO RECEIVE LEGACIES

Natural law, no less than Divine, ordains that the will of the faithful, bequeathing part of their wealth to the Church should be respected (Instruction of Propaganda, 1807, in "Collectanea S.C. de P. F.", I, Rome, 1907, n. 689). The Church was established by God as a necessary and perfect society, since its object is to lead men to their last end, consequently, it can uphold its right to acquire all the means necessary to realize the object for which God instituted it. Being an external and visible society, it must be able to dispose of temporal goods for the needs of Divine service, the support of its ministers, the propagation of the Faith, the care of the poor, etc. Therefore, it may acquire these goods by all legitimate means, and among these means are included pious bequests or legacies. Natural right demands that the goods of parents dying intestate should pass to their children, and in many cases it is a duty for parents to leave part of their patrimony to their children; canon law recognizes and approves of this duty. But there is no serious reason for depriving parents of the right to dispose by will, for a pious purpose, of those goods that are at their free disposal as long as they are alive. While profitable to the Church, pious bequests are not less so to the donors "for the salvation of their souls", in the words of the usual testamentary formula of the Middle Ages (Fournier, "Les officialités au moyen 'ge", Paris, 1880, p. 87). The Council of Trent (Sess. XXVI, Decr. de Purgatorio) declares that pious foundations are a means of relieving the sufferings of purgatory. The First Provincial Council of Halifax applies to pious bequests those words of the Gospel: "Make unto you friends of the Mammon of iniquity; that when you shall fail, they may receive you into everlasting dwellings" (Luke xvi, 9; "Collectio Lacensis", III, Freiburg, 1875, 746). Pious bequests are a means by which generous souls can continue, after their decease, their good works, and provide for the future of the institutions that they have founded or enriched. Those who have omitted during life to fulfill the precept of charity can find therein a way of repairing their negligence ("First Provincial Council of Westminster", 1852, XXV, II; "Collectio Lacensis", III, 942). Those, finally, who, owing to daily cares and anxieties, found it impossible to be bountiful during life, may yet, if only at the hour of death, cooperate in the relief of the unfortunate, and assure their neighbour the spiritual advantages of Divine service.

III. HISTORY

The charity of the first Christians led them to despoil themselves while alive of their superfluous goods; consequently, mention is rarely made of pious legacies before the time of Constantine. After that emperor's conversion they became more prominent, especially after the law of the year 321 allowed churches to receive all kinds of legacies, and granted them the "factio testamenti passiva", i.e. the right of being made heirs (Theodosian Code, XVI, II, lit. iv). Authors are not agreed on the import of a law of Theodosius dated June, 390, forbidding deaconesses, who were widows and had children, to dispose of their goods in favour of churches or the poor (ibid. xxvii). Many authors consider it an important restriction of the right recognized by Constantine as belonging to the churches (Fourneret, "Les biens d'Eglise aprËs les édits de pacification; Ressources dont l'Eglise disposa pour reconstruire son patrimoine", Paris, 1902, p. 84). Others see in it only a means of protecting, against the abuse of maternal power, the rights of the children to the succession of their parents (Knecht, "System des Justinianischen Kirchenverm-gensrechtes", Stuttgart, 1905, 75-76). In any case, Emperor Marcian restored the right to the churches in 485 (Justinian Code, I, II, xiii). Among the Teutonic peoples, testamentary liberalities properly so-called seem to have been unknown, but they had an arrangement resembling the "donatio mortis causa" of the Romans, i.e., the "cessiones post obitum", donations which the donor bound himself not to retract, but which took effect only on his death.

In virtue of the Teutonic principle of the personality of law, the inhabitants whom the Teutons found settled in the old provinces of the empire they conquered could continue to follow the Roman law. In this way the power to bequeath to pious establishments was introduced among the Visigoths, Burgundians, and Bavarians, while in Gaul pious bequests were tolerated in fact before being authorized by law (Loening, "Geschichte des deutschen Kirchenrechts", II, Strasburg, 1878, 655). Several synods of the Frankish period even declare the validity of testaments, especially those of ecclesiastics, in which the formalities prescribed by the civil law had not been observed (Bondroit, "De capacitate possidendi EcclesiÊ Êtate merovingica", Louvain, 1900, 87 and 105). (See DONATIONS.)

The bishops retained in the Middle Ages the right of supervising the execution of pious bequests, which had been recognized by the Justinian Code (I, III, xlv). This right was even extended, and in several regions the ecclesiastical tribunal judged of the validity of wills and supervised their execution (Fournier, op. cit., 87; Friedberg, "De finium inter Ecclesiam et Civitatem regundorum judicio quid medii Êvi doctores statuerint", Leipzig, 1861, 124). It was in virtue of this right that Alexander III determined the conditions for the validity of wills in non-ecclesiastical matters (c. x., "De testamentis et ultimis voluntatibus", X; III, xxvi. See Wernz, "Jus Decretalium", III, Rome, 1901, 309). This same pope ordained, following the example of St. Gregory, that the ecclesiastical judge was to decide the validity of pious bequests not in accordance with the provisions of the Roman law but with the decrees of canon law (cc. iv, xi, "De testamentis et ultimis voluntatibus", X, III, xxvi).

The practice of pious bequests was so common in the Middle Ages that it seemed impobable that any person would have dispensed himself from it. This was the origin of the right of bishops in certain places, particularly in France and Southern Italy, to dispose, in favour of pious objects, of part of the goods of an intestate deceased person (Fournier, op. cit., 89). The generosity of the faithful built and endowed those wonders of art, the monasteries and churches as well as the many charitable institutions that were the glory of the medieval Church, and that the official charity of the State has succeeded neither in rivalling nor in replacing. It was not until the close of the medieval period that the civil power began to restrict the acquisition of property by religious mortmain. In modern times, even in Catholic countries, wills were withdrawn from the judicial authority of the Church, and the civil power finally deprived the latter of the right to adjudicate even on testamentary questions relating to pious bequests.

IV. ACTUAL CANONICAL LEGISLATION

The Church reserves to itself, even now, an exclusive authority in the matter of pious wills and legacies; it has its own legislation, the Roman law modified on several points by canon law, and its ecclesiastical tribunals to examine the questions connected therewith.

(1) Besides persons who by natural law or in virtue of the enactments of Roman law are incapable of making a will, the Church refuses to accept the pious bequests of usurers (c. ii, De usuris, in VI°, V, 5), of heretics and their accomplices (c. xiii, De hereticis, X, V, 7), and of those who are guilty of attacks on the cardinals (c. v, De pœnis, in VI°, V, 9). In practice, the Church refuses at the present time, to accept the bequests of sinners who die impenitent, and especially of usurers, in order not to be enriched by their ill-gotten goods (Santi, "PrÊlectiones juris canonici", III, Rome, 1898, 224-25). Religious who make solemn vows of profession are permitted to make wills only during the two months preceding their solemn profession; other religious must conform to the rules of their congregation. The rules (normœ) drawn up by the Congregation of Bishops and Regulars for the approbation of institutes bound by simple vows (Rome, 1901) forbid the making of wills after religious profession without the permission of the Holy See or, in case of urgency, without the authorization of the bishop or the superiors (Art.. 120 and 122. See Vermeersch, "De religiosis", I, Bruges, 1902, 148).

(2) It is not alone bequests made to churches that enjoy the prerogatives established by canon law, but also those made to monasteries, religious houses, and all institutions, whether purely religious or of a charitable character subject to the direction of religious authorities. However, certain religious orders, either because they practise poverty in a stricter manner, or in virtue of their constitution, have only a restricted right to acquire property by legacy or will (Santi, op. cit., III, 238-9; Wernz, op. cit., III, 322).

(3) The heirs of the testator are obliged to execute pious bequests, even if they have not been made in accordance with the formalities prescribed under penalty of nullity by the civil law, provided canon law considers them to have been made validly. The State has an incontestable right to prescribe the formalities requisite for the validity of wills in all matters falling within its jurisdiction, but pious legacies and bequests for pious purposes are under the exclusive control of the Church. This principle was clearly enunciated by Alexander III in the decretal "Relatum" (c. xi, De testamentis et ultimis voluntatibus, X, III, xxvi). It is true this decretal was addressed to the judges of Velletri, a town in the Papal States, but its force cannot be restricted solely to the territory under the temporal power of the pope, and the insertion of the decretal in the "Corpus Juris", or general law of the Church, deprives the objection of all force. It has been urged that a contrary custom had abrogated this canonical enactment, and that, moreover, only natural equity and the favour shown by the Church to pious bequests have caused pious legacies made with a neglect of solemn formalities to be considered valid. The constant practice of the Holy See proves that this argument is not conclusive. On 10 January, 1901, the Sacred Penitentiaria declared that, as a general rule, it considers valid and binding in conscience pious bequests which the civil law declares void on account of the omission of extrinsic formalities prescribed by the civil law. Nevertheless, in such a case the ecclesiastical authorities are generally disposed to come to terms with the heirs ("Acta SanctiÊ Sedis", XXXIV, Rome, 1902, 384). (See, in the same sense, the decrees of the S. C. C. "in caus. Arimin.", 13 September, 1854; "in caus. Hortana", 29 February, 1855; and reply of the Penitentiaria, 23 June, 1844.)

According to the common opinion of theologians, for a pious bequest to be obligatory in conscience it suffices that the wish of the testator be well established, e.g. by a holograph or a writing merely signed by the testator, by a verbal declaration made to the heir himself or before two witnesses (a single testimony other than that of the heir would be insufficient). If it be urged that the testator has revoked his bequest, the fact must be proved The Congregation of the Council decided, 16 March, 1900, that a writing containing erasures, which is only a draft of a will, is not a sufficient proof that the testator wished to revoke a previous will ("Acta SanctÊ Sedis", XXXII, Rome, 1900-01, 202). The contrary opinion is now held only by a few authorities (CarriËre, "De contractibus", n. 586, Louvain, 1846; D'Annibale, "Summula theologiÊ moralis", II n 339, Rome, 1892; Boudinhon in "Le Canoniste contemporain", XXIV, Paris, 1901, 734). By Roman law, if a testator knowingly bequeathes a thing not in his possession, it was equivalent to ordering the heir to purchase the thing for the legatee or, if that were impossible, to give him its value. A decree of Gregory I seems to overrule this decision (c. v. De testamentis et ultimis voluntatibus, X, III, xxvi). But it may be replied that this decree, while admitting the principle of the Roman law, intended only to declare that natural equity will often dispense the heir from carrying out the wish of the testator in the matter (Santi, op. cit., III, 242—245). This provision of Roman law being not generally known in our day, it is lawful to presume that the testator made a mistake, and that the bequest is therefore void.

(4) The Church approved the provision of the Roman law prohibiting the testator from disposing of the "pars legitima" which the laws ordered to be preserved to the heirs, this being conformable to natural law. Although in our modern codes the "pars legitima" is greater than it was in the Roman law, it may he presumed that the Church recognizes the ruling of our codes in the matter. All bequests exceeding the amount which the civil law allows to be disposed of freely by the testator may therefore be reduced. The provisions of the Corpus Juris (cc. xiv, xv, xx, De testamentis et ultimis voluntatibus, X, III, xxvi) granting the bishop the "portio canonica"-i.e. the quarter of all pious bequests not affected by the testator to a definite purpose-are no longer in force. (5) The bishop can compel the heirs or the executors to fulfil the last wishes of the deceased in the matter of pious bequests (c. ii, v, xix, "De testamentis et ultimis voluntatibus", X, III, xxvi; Council of Trent, Sess. xxii, "De reformatione", c. viii). He is also the judge of the first instance in testamentary cases submittcd to ecclesiastical tribunals. In virtue of this he has the right to interpret the terms of the will, but any change properly so called of the wishes of the deceased is reserved we think, to the Holy See, which can make such change only for grave reasons (c. ii, "De religiosis domibus III, 11, in "Clem."). The Council of Trent (Sess, XXII, De reformatione, c. vi) recognizes in bishops only the right of executing a change in the will made by the pope; this, however, does not prevent a bishop from applying to another object, a legacy left for a definite purpose which can no longer be executed in accordance with the wish of the testator. Propaganda grants vicars Apostolic the right of making changes in the will of a testator, in countries where communication with Rome is very difficult, and in cases where it is impossible to carry out the testator's wish; but it obliges them in each case to obtain a subsequent approval of their act by the Holy See (Instruction of 1807, in "Collectanea", I, n. 689). The Constitution "Romanos pontifices" of 8 May, 1881, lays down certain rules concerning the interpretation of the terms of a last will (" Acta et decreta concilii plenarii Baltimorensis III ", Baltimore, 1886, 46, 225— 227).

V. WILLS OF ECCLESIASTICS

While canon law has never forbidden ecclesiastics to dispose freely of their own private property, it has always maintained the principle that the superfluous revenues derived from church property ought to he devoted to religious or charitable purposes. If they have not been so disposed of during his lifetime by the person who was in receipt of them, after his death they should be distributed either as canonical legislation enacts or as a pious bequest. During the first centuries of the Church, when bishops alone had the administration of ecclesiastical property, measures were taken by the ecclesiastical authorities to prevent its dissipation by the heirs of the bishops. Justinian forbade bishops to dispose of the goods acquired by them after their promotion to the episcopacy, excepting, of course, their own patrimonial estate (NovellÊ, CXXXI, c. xiii). The Third Council of Carthage (397) had already legislated in a similar sense with regard to ecelesiastics (Bruns, "Canones apostolorum et conciliorum veterum selecti", I, Berlin, 1839, 134). Moreover, the Theodosian Code assigned to the Church the goods of clerics dying intestate, and not leaving children or relatives (V, III, lib. i). These regulations were confirmed by the popes and the councils (see Decretum Gratiani, II, c. Xii, q. 5, "An liceat clericis testamenta conficere"). But, as early as the sixth century, we learn from the decrees of councils that abuses had already crept in: ecclesiastics and even bishops were attempting to seize ecclesiastical property on the death of their confrËres (Decret. Gratian, loc. cit., q. 2); later, it was the turn of the laity; emperors, princes, lawyers, and patrons claimed a right to the spoils (Jus spolii or exuviarum).

To remedy this state of affairs, the reforming popes of the eleventh and twelfth centuries forced the emperors to renounce explicitly their right to the spoils, and the Third Council of Lateran (1179) as well as Alexander III made certain enactments regarding the estates of ecelesiastics; the latter were free to dispose of their own patrimony, the "peculium patrimoniale" as canonists call it, i. e., all goods which ecclesiastics acquired by inheritance, will, or any kind of contract soever, but independently of the ecclesiastical character. They might dispose likewise of the "peculium industriale" or "quasi patrimioniale", i.e. the property acquired by their own personal activity. To this was likened the "peculium parsimoniale", or that portion of the revenues coming from ecclesiastical benefices, which the beneficiary might reasonably have spent on himself, but which he economized (Santi, op. cit., III, 210). But he was forbidden to dispose of the "peculium beneficiale", the superfluous revenue of the benefices he held, and which he did not distribute in good works during his life. In principle this was to pass to the church in which the ecclesiastic held the benefice. However, Alexander III does not blame the custom, where it exists, of bequeathing some part of this "peculium" to the poor, or to ecclesiastical institutions, or even, as a reward for services rendered, to persons, whether relatives or not, who have been in the service of the deceased cleric (cc. vii, viii, ix, xii, De testamentis et ultimis voluntatibus, X,III, xxvi).

It does not follow, of course, that the law was observed; the "spolium" remained customary among ecelesiastics, especially abbots of monasteries, chapters, and bishops (c. xl, "De electione in VI°, 6; c. ix, "De officio ordinarii" in VI°, I, 16 c i De excessibus prÊlatorum in Clem. V, vi) The popes themselves saw in it a means of increasing their revenues. As early as the fourteenth century they reserved to the Holy See that portion of the property of ecclesiastics which the latter could not dispose of freely, with certain exceptions. These fiscal measures reached their highest limits during the Western Schism. They met with vigorous opposition in France, where the kings refused to admit the right of the pope, and also in the councils of the fifteenth century. Nevertheless the popes maintained their claims for a long time (see the Constitution of Pius IV "Grave nobis", 26 May, 1560 in "Bullarum amplissima collectio", ed. Cocquelines, IV, ii, I8; that of Pius V "Romani pontificis providentia", 30 August, 1587, Ibidem, 394; and of Gregory XIII, ëOfficii", 21 January, 1577, Ibidem, IV, iii, 330). On 19 June, 1817, Pius VIII declared that Propaganda was entitled to all revenue of the "spolium" (Collectanea, I, n. 724). On the other hand, even when the legislation of Alexander III was introduced, it was not always enforced in the same way; in some places the ecclesiasties could dispose of their "peculium beneficiale" in favour of pious purposes; in others they were granted full testamentary liberty, provided they made a legacy in favour of pious objects, or else paid a certain sum to the bishop who allowed them to make the will. These practices, together with the difficulty of distinguishing, in the inheritance of an ecclesiastic, the amount of the "patrimonium beneficiale", eventually left ecclesiastics testamentary freedom.

However, the canonical legislation is yet substantially unchanged; ecclesiastics are even now obliged to bequeath for pious purposes the superfluous part of the revenues from their benefices which they have not distributed during their life. This principle, recalled by the Council of Trent (Sess. XXV, De reformatione, c. i), is reasserted in most provincial councils of the nineteenth century. It is commonly admitted that it imposes no obligation of justice, but merely one based on ecclesiastical precept (Santi, op. cit., III, 211; Wernz, op. cit., III, 210—11). This obligation does not exist in countries where there are no benefices, or where benefices strictly so called are notoriously insufficient for the support of the clergy who enjoy them. Under these circumstances, pious bequests are earnestly recommended to ecclesiastics, but they are never obligatory in conscience. For the special rules regulating the wills of cardinals, see Santi, op. cit., III, 227—34. The obligations imposed on ecclesiastics, needless to say, are binding on their heirs in case they die intestate. Sometimes this matter is decided by local custom. The Provincial Councils of Vienna (1858) and of Prague (1860) decree that the estate of an ecclesiastic deceased intestate is to be divided into three parts: one for the Church, one for the poor, and the third for the relatives of the deceased. If the deceased was not possessed of any ecclesiastical benefices, only one-third of the estate is subject to the above rule, and that is to be distributed among the needy, but should the heirs of the deceased belong to that class, said portion may be given to them.

See the commentaries of the canonists on the Third Book of the Decretals, titles xxv, xxvi, and xxvii; SCHMALZGRUEBER, Jus canonicum universum, III, ii (Rome, 1844), 462-607; REIFFENSTUEL, Jus canonicum universum, IV (Paris, 1867), 362—567; SANTI, Prœlectiones juris cononici, III (Rome, 1897), 209—247; WERNZ, Jus decretalium, III (Rome, 1901), 199—218, 306—327; SŸGMÐLLER, Lehrbuch des katholischen Kirchenrechts (Freiburg, 1904), 764, 787—92; THOMASSINUS, Vetus et nova ecclesiœ disciplina, pt. III, bk. II (Paris, 1691), cc. xxxviii—lvii; WAGNER, Dissertatio de testamento ad pias causas (Leipzig, 1735); THOMAS, Das kanonische Testament (Leipzig, 1897); WOLFF VON GLANVELL, Die letzwillige Verf¸gungen nach gemeinem Kirchlichen Rechte (Paderborn, 1900); FŠNELON, Les fondations et les établissements ecclésiastiques (Paris, 1902); SCHMIDT, Thesaurus juris ecclesiastici, IV (Heidelberg, 1727), 382—440; SENTIS, De jure testamentorum a clericis secularibus ordinandorum (Bonn, 1862); EISENBERG, Das Spolienrecht am Nachlass der Geistlichen (Marburg, 1886); HOLLWECK, Das Testament der Geistlichen nach kirclichen und burgerlichen Recht (Mainz, 1901); SAMARAN, La jurisprudence pontificale en matiËre de drot de dépouille (jus spolii) dans la seconde moitié du XIVe siËcle in Mélanges d'archéologie et d'histoire (Ecole franÁaise de Rome) XXII, (Paris, 1902), 141 sq.

A. VAN HOVE

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.

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(Lat. fundatio; Ger. Stiftung)

An ecclesiastical foundation is the making over of temporal goods to an ecclesiastical corporation or individual, either by gift during life or by will after death, on the condition of some spiritual work being done either in perpetuity or for a long time. It would be difficult to say exactly when foundations, as distinct from oblations or offerings, began to be considered as a normal means of ecclesiastical support. Offerings which were given on the occasion of some ecclesiastical ministration are a distinctive feature of the Apostolic Church. In early Christian times (the first three centuries) these offerings were spontaneous, but in the course of time the Church had to exercise her right to demand support from the faithful. The custom of giving and consecrating the first-fruits (primitiœ) to God and the maintenance of His ministers appears to have lasted until about the fifth century. Quite ancient also are the decimœ, or tithes (not necessarily a tenth): a portion of the harvest, or goods, or wealth, offered for the same purpose of maintenance of the clergy and for the due preservation of the services of the Church; this also has now almost entirely disappeared (see TITHES). Such popular contributions are often mentioned in early Christian writers, e.g. St. John Chrysostom, Hom. xliii, in Ep. I. ad Cor., ch. xvi; St. Jerome, vol. VI, in c. iii Malachiæ; St. Augustine, "Enarratio in Ps.", cxlvi. Under Emperor Constantine the mutual relations of the Church and State were readjusted; the prerogatives of the Church and the sphere of her action were enlarged. Having obtained political recognition, she acquired also the right of accepting donations and legacies, which, as a rule, were set apart by the bishops for the erection and maintenance of hospitals for the sick, orphan asylums, and homes for the aged and those destitute of all other means of support. At a Synod of Orléans (541) it was enacted that if an overlord wished to have an ecclesiastical district established on his property he must previously make a competent provision in land for the maintenance of the church and of the ecclesiastics who were to serve it. To the voluntary offerings made to the clergy must be added the numerous legacies which the Church began to receive from the converted barbarian peoples from the sixth and seventh centuries on; also, at an earlier date, the contributions of corn and wheat granted annually out of the public granaries by order of Constantine. In the West these revenues were usually divided into four parts, and allotted respectively to the bishop, the clergy, the poor, and the care of the ecclesiastical buildings. At the end of the twelfth and the beginning of the thirteenth century the energy displayed by the clergy in political affairs gave rise to a spirit of public enterprise which manifested itself in the formation of industrial guilds and the creation of charitable institutions, such as orphan asylums, foundling homes, hospitals, houses for the aged and infirm, hospices, and leper-hospitals, the majority of which were liberally endowed. For an account of this wonderful era of popular generosity, see Thomassin, "Vetus ac nova eccles. disciplina", III, 1-30; and Lallemand, "Hist. de la Charité" (Paris, 1906).

In general, the Church now derives its support mainly from voluntary offerings, civil aid or subsidy, and pious foundations. Foundations for pious uses may come under any one of the following heads: legacies for Masses; legacies to a particular diocese, church, school, etc.; to a charitable institution, e. g. an orphanage or a hospital; to any society established for an educational or charitable purpose, or in general for a religious end.

Foundations are contracts; therefore there must be mutual consent between the founder and the administrator of the institute receiving the gift. Moreover, there is the obligation of performing some work specified in the deed of foundation. The consent of the bishop, or, in the case of a regular community, the consent of the regular prelate, must be obtained, since it would not be just that ecclesiastical institutions should be placed under obligations which they are unable to fulfil (Sacred Congregation of the Council, 23 Nov., 1697). Benedict XIV considers supervision of the execution of pious legacies one of the most solemn and important duties of a bishop (De Synodo, Bk. XIII). The Council of Trent says (Sess. XXII, ch. ix): "The administrators, whether ecclesiastical or lay, of the fabric of any church whatsoever, even though it be a cathedral, as also of any hospital, confraternity, charitable institutions called 'montes pietatis', and of any place whatsoever, shall be bound to give in once a year an account of their administration to the ordinary, all customs and privileges to the contrary being set aside; unless it should happen that, in the institution and regulations of any church or fabric, it has been otherwise expressly provided. But if from custom, or privilege, or some regulation of the place, their account has to be rendered to others deputed thereunto, in that case also the ordinary shall be employed jointly with them, and all acquittances given otherwise shall be of no avail to the said administrators."

In the list of questions to be answered by bishops on their Roman visits ad limina the Congregation of Propaganda asks the following (nos. 49, 50): Are there any pious foundations in the diocese or legacies bequeathed for pious purposes? Are the proceeds of such bequests properly administered and the canons relating to such matters attended to? (See also the Constitution of Leo XIII affecting congregations of simple vows and known as "Conditæ a Christo", 8 Dec., 1900.) The bishop by a general statute may stipulate that foundations are only to be accepted under certain conditions. It is to be noted that acceptation without the consent of the bishop does not invalidate the legacy, but it is in the power of the bishop to rescind the contract if he judge it proper, although in the case of Masses in perpetuity Urban VIII approved a decree which postulates the consent of the bishop as necessary before such obligation can be incurred. The founder can, on the occasion of his gift, make any reservations that please him, provided the conditions are possible and fitting, are in no way adverse to the Divine and natural law, and are admitted by the bishop. The specific works which have to be fulfilled must be set forth in the deed of foundation. On the other hand, the founder, or his heirs, and the bishop cannot change the terms of a foundation once canonically erected, especially if the change would be to the detriment of a third person.

In the decrees of Urban VIII, "Cum Sæpe" (21 Jan., 1625), and Innocent XII, "Nuper a congregatione" (23 Dec., 1697), it is ordered that the stipulated Masses or other works must be fulfilled as a matter of justice; and, if not fulfilled, those responsible for the omission sin gravely and are bound to restitution. Money left as a foundation must be invested as soon as possible. A list of founded Masses is to be kept in a conspicuous place in the church; and when the Masses have been celebrated the fulfilment of the obligation is to be noted in a book kept for that purpose. The obligation of a foundation ceases absolutely when the income or principal is lost without fault on the part of anyone; but non-fulfilment, even for a lengthy period, does not prescribe against a foundation in perpetuity. The reduction of a foundation obligation is a matter for the judgment and decision of the Holy See, although it is not uncommon for bishops to receive faculties to make such reduction. Condonation and absolution for past omissions in the fulfilment of foundation obligations belong also to the Holy See, though here again bishops usually receive triennial faculties to act in such circumstances. Commutation of the wishes of the founder similarly belongs to the Holy See; but if it is merely a matter of interpretation of the wishes of the founder, bishops are competent to act, since they are the executors of all pious dispositions whether the endowment is given in the form of legacy, or the grant should take effect during the lifetime of the donor (Council of Trent, Sess. XII, ch. viii). It may be noted that, with regard to foundations for Masses, if the founder has given no definite instruction as to intention, the Congregation of the Council has often decided that the Masses must be applied for the founder, the interpretation being that he intended them for himself.

The synods of Westminster (Eng. tr., Stratford-on-Avon, 1886) have the following decrees: "It is fitting that the bishop select from the body of the chapter or from the body of the clergy prudent men to help him in the temporal administration of the diocese. He should often use their advice." "New obligations should not be accepted without the consent of the bishop. If those which he has already to fulfil appear to be too burdensome, or there does not exist a congruous endowment, let the priest apply to the bishop or lay the matter before him at the visitation." "If any of the faithful wish to found a daily or anniversary Mass the matter must be treated with the bishop, and the sum contributed for this object must be profitably invested so as to produce an annual interest for a perpetual endowment, as far as circumstances of time and places will allow, the canonical sanctions being observed." For similar legislation concerning Ireland see the "Acta et Decreta" of the plenary Synod of Maynooth, 1900 (Dublin, 1906), pp. 67-78. In the United States secular priests cannot accept foundations of Masses without the written permission of the bishop. Regulars must have the consent of their superiors general or provincials. No general rule has been laid down as to the requisite amount of the fund, each ordinary being free to fix the sum for his diocese. The councils of Baltimore urge that great circumspection should be used in accepting foundations, especially of perpetual Masses. It would seem advisable to accept foundations only on the following conditions: That the obligation to celebrate shall cease, if the fund, no matter from what cause, be either entirely lost or yield no income; that the ordinary shall have power to reduce the number of Masses if the interest on the capital, no matter for what reasons, becomes insufficient to make up the stipend fixed by the founder; that if, for whatever cause, the church in which the Masses are to be said is destroyed or deprived of a priest, the Masses can be said in any church to be designated by the ordinary.

In order to prevent the annulment or failure of a foundation particular attention should be given to the civil law of the place in question. In England (but not in Ireland) bequests to what the civil law regards as superstitious uses are void, as, for example, to maintain a priest, or an anniversary or obit, or a lamp in a church, or to say Masses for the testator's soul, or to circulate pamphlets inculcating the pope's supremacy. Legacies of money for charitable purposes, as for the use of schools, churches, etc., are valid; but if the money is to be laid out in the purchase of land for such purposes, the direction to purchase land shall be disregarded and the money shall be held for the charity. Land may be given by will for charitable purposes; but, by the Act 54 and 55 Vic., c. 73, the land must (with certain exceptions) be sold within a year from the testator's death; gifts of land for charitable purposes, otherwise than by will, are valid if the requirements of the Act 51 and 52 Vic., c. 42, are observed. Of these the principal ones are:

• the conveyance must be by deed;

• the gift must take effect twelve months before the death of the donor; and

• the gift must be without any reservation or condition for the benefit of the donor.

For the English legislation and Court practice concerning trusts and bequests for Catholic religious uses see, in general, Lilly and Wallis, "A Manual of the Law specially affecting Catholics" (London, 1893), 135-167. In the United States property cannot legally be devised to a corporation (e. g. to a church when incorporated) unless such corporation is authorized by its charter to receive bequests by will. Many theologians believe that bequests for religious and charitable purposes are valid and binding in conscience, even though null according to law; however, D'Annibale does not agree (Summula Theol. Mor., II, 339).

For the ecclesiastical legislation of the Diocese of Quebec see "La discipline du diocèse de Quebec" (Quebec, 1895), 131; for the ecclesiastico-civil law of the Province of Quebec, Mignault, "Le droit paroissial" (Montreal, 1893), 138, 260-62. (See PROPERTY, ECCLESIASTICAL; MASS; ENDOWMENT.)

For the law of ecclesiastical foundations in Germany see Sägmüller, "Kirchenrecht" (Freiburg, 1904), III, 800-3; and for the German civil law, Görtz in "Staatslexikon" (2nd ed., Freiburg, 1904), V, 574-78. For France see Bargilliat, "Prælectiones Jur. can." (Paris, 1907), nos. 1363-81; also André-Wagner, "Dict. de droit canonique" (2nd ed., Paris, 1901), II, 225-28. For the administration of the important ecclesiastical foundations in Hungary see Vering, "Kirchenrecht" (3rd ed., Freiburg, 1893), 149; in Baden: op. cit., 249-50.

TAUNTON, Law of the Church (London, 1906); SMITH, Elements of Eccles. Law (New York, 1886); BOUIX, De Episcopis (Paris, 1859); BARGILLIAT, Prœlect. Jur. can. (27th ed., Paris, 1907); LUCIDI, De visit. sac. liminum (3rd ed., Rome. 1883); VON OBERCAMP in Kirchenlexikon, s. v. Causœ Piœ; FERRARIS, Bibliotheca prompta (ed. Rome, 1883).

DAVID DUNFORD.

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.

Acts of administration

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Administrator (of Ecclesiastical Property), one charged with the care of church property. Supreme administrative authority in regard to all ecclesiastical temporalities resides in the Sovereign Pontiff, in virtue of his primacy of jurisdiction. The pope's power in this connection is solely administrative, as he cannot be said properly to be the owner of goods belonging either to the universal Church or to particular churches. Pontifical administrative authority is exercised principally through the Propaganda, the Fabrica of St. Peter, the Camera Apostolica, the Cardinal Camerlengo, and finds frequent recognition and expression in the decrees of councils held throughout the world. In each diocese the administration of property belongs primarily to the bishop, subject to the superior authority of the Holy See. From the very beginning of the life of the Church, this power has been a part of the episcopal office (can. 37, Can. Apost., Lib. II, cap. XXV, xxvii, XXXV. Const. Apost.). On him all inferior administrators depend, unless they have secured an exemption by law, as in the case of religious orders. Therefore, if an arrangement exists by which the administration of certain diocesan or parish property is entrusted to some members of the clergy or to laymen, the discipline of the Church, nevertheless, maintains the bishop in supreme control with the right to direct and modify, if need be, the action taken by subordinate administrators. One of the important duties of a parish priest is the administration of the moneys and goods belonging to his church. The Third Plenary Council of Baltimore, Tit. IX, Cap. iii, gives detailed regulations concerning the manner in which a rector is to acquit himself of this obligation. Among other things, it is required that he shall keep an accurate record of receipts, expenditures, and debts; that he shall prepare an inventory containing a list of all things belonging to the church, of its income and financial obligations; that one copy of this inventory shall be deposited in the archives of the parish and another in the diocesan archives; that every year necessary changes shall be made in this inventory and signified to the chancellor. The authority of the parish priest is circumscribed by the general authority of the bishop and by special enactments which prevent him from taking any important step without the express written permission of the ordinary.

In many places laymen are called to a part in the care of church property, sometimes in recognition of particular acts of generosity, more often because their cooperation with the parish priest will be beneficial on account of their experience in temporal matters. Although the origin of the modern fabrica, or board of laymen, is placed by some in the fourteenth and by others in the sixteenth century, the intervention of laymen really goes back to very early times, since we find it referred to in councils of the seventh century. Lay administrators remain completely subject to the bishop in the same manner as the parish priest. The difficulties caused by the illegal pretensions of trustees in the United States during the early part of the last century evoked from the Holy See a reiteration of the doctrine of the Church regarding diocesan and parish administration notably in a brief of Gregory XVI (12 August, 1841) wherein the Pope declared anew that the right of such inferior administrators depends entirely on the authority of the bishop, and that they can do only what the bishop has empowered them to do. In some dioceses where the system of administration by lay trustees is in vogue the regulations and discipline of the Catholic Church are made a part of the by-laws of church corporations, a measure which is of great advantage in case of a process before the secular courts. The administration of property belonging to religious institutes under the jurisdiction of the ordinary rests naturally with their superiors, but the bishop may reserve to himself in the constitutions a large right of control and supervision. In reference to institutes under the jurisdiction of the Holy See the bishop's right is limited to signing the report sent to Rome every third year by the superior. Religious orders are exempt from diocesan control in the administration of their property, but are bound, when engaged in parochial work, to present to the bishop a report of the amounts they have received for parochial purposes, and of the use made of such contributions. The exclusive rights of ecclesiastical authorities in the administration of church property have been denied in practice by civil authorities, often with the result of serious injustice and hardship to particular churches especially during the last two centuries. Hence the care taken in various councils to admonish administrators to secure the titles to church property in accordance with the provisions of secular law, e.g. III Plen. Balt., no. 266.

Zech, De jure rerum ecclesiasticarum; Meurer, Begriff und eigenthümer der heiligen Sachen; II Concilium Plenarium Baltimorense, IV; III Concilium Plenarium Baltimorense, IX.

John T. Creagh.

Ecclesiastical Property in the United States

 This article incorporates text from a publication now in the public domain: Herbermann, Charles, ed. (1911). "Ecclesiastical Property in the United States". Catholic Encyclopedia. Vol. 12. New York: Robert Appleton Company. {{cite encyclopedia}}: |contributor= ignored (help); Unknown parameter |next= ignored (help); Unknown parameter |previous= ignored (help)

The Third Plenary Council of Baltimore decreed (tit. IX, cap. i, n. 264): "We must hold, holily and inviolably, that the complete right of ownership and dominion over ecclesiastical goods resides in the Church." In English-speaking countries, however, the State as a rule does not recognize this inherent right of the Church, but claims for itself the supreme dominion over temporal possessions. "The State refuses to recognize the Church as an actual corporation with the power of holding property in her own name; hence the civil power deals only with specific individuals" (Taunton, op. cit. infra, p. 310). The fathers of the Third Plenary Council of Baltimore say on this subject: "On account of the grave dangers to which temporal goods are often exposed when bishops are not allowed to control them according to the prescriptions of the Church, it is much to be regretted that in many parts of the United States the civil laws concerning the possession and administration of temporal goods rest upon principles which the Church cannot admit without departing from the rule which she has always held from the time when she first became free to put her religious principles into practice" (tit. IX, cap. ii, n. 266). The many painful incidents arising in the United States from insecure methods of holding ecclesiastical property (schism, usurpation of church goods, etc.) caused the bishops to make stringent rules for safeguarding ecclesiastical possessions. Dissensions frequently arose owing to the abuse of power by lay trustees (see TRUSTEE SYSTEM), in whose name the property was often held.

The various councils of Baltimore endeavoured to find a remedy for this deplorable state of things. The First Provincial Council (n. 5) declared that no church should be erected or consecrated unless (where possible) it had first been deeded to the bishop (instrumento scripto assignata). Administrators of temporal goods were exhorted to observe the prescriptions of the Council of Trent concerning church property. The Third Provincial Council (n. 43) says: "We admonish bishops, priests and all others who have care of movable or immovable property given for ecclesiastical uses, to take measures as soon as possible to secure the carrying out of the intentions of the donors, according to the safest method prescribed by the civil laws in the various States." The Fourth Council adds (n. 56): "that if this security can be obtained in no other way, then the property is to be handed on by means of last wills and testaments, drawn up according to the provisions of the civil law". In 1840 Propaganda issued a decree that each bishop should make some fellow-bishop his heir, and that, on the death or resignation of the former, the latter should then hand over the property to the new bishop. This condition was not, however, to be expressed in the testament, but signified in writing to the chosen heir who was then to burn the letter. The fathers of the Fifth Provincial' Council asked for a modification of this decree, as the laws of various states would make it difficult of execution; they desired that each bishop, within three months after his consecration, should make a will and deposit a duplicate of it with the 'archbishop (n. 59). The First Plenary Council of Baltimore occupied itself with the vexed question of church property, decreeing: "We warn priests who administer churches, the title to which has been given to the bishop, not to constitute lay-trustees without episcopal sanction, or permit them to be elected by the faithful, lest an impediment arise to their free administration" (n. 94). In like manner, the Second Plenary Council made new decrees concerning church property. The Fathers of this council seem to have been hopeful that the prescriptions of canon law would find free play in the United States. They say "In these United States it is the right of all citizens to live freely according to the precepts of their religion, and as the civil laws recognize and declare the same, it seems that there is no obstacle to the exact observance of the laws decreed by councils and popes for the legitimate acquisition and preservation of ecclesiastical property, the Fathers desire, therefore, that the right of the Church be vindicated in the eyes of all and publicly before the State, so that Catholics may be allowed to observe the laws of the Catholic Church in acquiring, holding and preserving ecclesiastical goods, such as lands for church edifices, presbyteries, schools, cemeteries etc. This complete liberty, however, can be said to exist only when the laws and ordinances of the Church are recognized by the civil tribunals and thus receive civil effect. By such provisions the rights of all will be preserved, possible abuses will be obviated, and the power of the bishops, instead of being increased, will rather be diminished by the regulations made by the Church herself. For, at present, in order to obtain protection from the improper interference of lay tribunals, which in practice scarcely acknowledge the ecclesiastical laws, nothing now remains to the bishops for carrying out ecclesiastical decrees but to claim for themselves the fullest administration of property before the civil power. As, however, church regulations are not acknowledged as yet in some States, it is our duty to see that in those places where no provision has been made by the civil law, the impediments to the liberty of the Church and to the security of ecclesiastical property be removed or diminished" (tit. IV, cap. i, nn. 199, 200). The council then lays down regulations regarding lay trustees.

The Third Plenary Council (tit. IX, cap. ii, nn. 267-8) defined more exactly what was meant by secure methods of ownership according to civil law, directing that:

• (1) The bishop himself be constituted a corporation sole for possessing and administering the goods of the whole diocese; or

• (2) that the bishop hold the goods in trust in the name of the diocese; or

• (3) that the bishop hold and administer the church property in his own name (in fee simple) by an absolute and full legal title.

In the last case, the bishop is to remember that, though before the civil law he is the absolute owner, yet by the sacred canons he is only procurator. By whichever title the bishop holds the property, he is to keep inventories, carefully distinguishing between the church property and his own personal property. Since the Third Plenary Council the question of holding church property has more than once been discussed by the American bishops, and at the present time, in addition to the fee simple and the corporation sole methods, a modified system of the trustee method has found considerable favour. Concerning this, the "St. Paul Catholic Bulletin", says (I, no. 20): "Not only is it not true that the archbishops (at their meeting in 1911) discouraged the holding of church property by local churches, but on the contrary, they declared it to be the very best solution of the problem under consideration. And while in some States, owing to peculiar legislative enactments, other methods of holding church property are in vogue, yet it was admitted by the assembled prelates that the holding of church property by local parish corporations was by far the safest method. In the Archdiocese of St. Paul, each church is incorporated separately and independently of all others. Members of this corporation are ex-officio the Ordinary of the Diocese, his vicar-general, and the pastor of the parish, who select two laymen from the parish to represent the congregation. In addition to these separate parochial corporations, there is a general diocesan corporation known as 'The Diocese of St. Paul', in which is invested the control of all the property belonging to the diocese, not directly controlled by the aforesaid parish corporations." The laws of the Church are fully observed, as the bishop of the diocese exercises sufficient control over all the property; without him, the other members of the corporation can take no action binding in law, and he assumes no unreasonable obligations inasmuch as he himself is powerless to act without the consent and co-operation of the others. Dr. P. A. Baart ("Catholic Fortnightly Review", XIV, no. 4) says: "The Church, through the Sacred Congregation of Propaganda, whose decision and decree were approved by the Pope, has declared that the corporation system which recognizes the rights of the hierarchy is preferable to the fee simple tenure by the bishops as individuals before the civil law."

Concilia Provincialia et Plenaria Baltimorensia; BAART in The Catholic Fortnightly Review, VI, VII, XIV (St. Louis); TAUNTON, Law of the Church (London, 1906), s. v. Ecclesiastical Property; SMITH, Elements of Ecclesiastical Law, I (New York, 1895); IDEM, Notes on Second Plenary Council of Baltimore (New York, 1874).

WILLIAM H. W. FANNING.

Lay trusteeism

 This article incorporates text from a publication now in the public domain: Herbermann, Charles, ed. (1912). "Trustee System". Catholic Encyclopedia. Vol. 15. New York: Robert Appleton Company. {{cite encyclopedia}}: |contributor= ignored (help); Unknown parameter |next= ignored (help); Unknown parameter |previous= ignored (help)

I. In the exercise of her inherent right of administering property, the Church often appoints deputies who are responsible to herself. Technically, such administrators, whether cleric or lay, are called the "fabric" of the Church. In very early times ecclesiastical goods were divided into three or four portions, and that part set aside for the upkeep of the Church began to take on the character of a juridical person. The Eleventh Council of Carthage (can. ii) in 407 requested the civil power to appoint five executors for ecclesiastical property, and in the course of time laymen were called on to take their share in this administration, with the understanding, however, that everything was to be done in the name and with the approbation of the Church. A number of early and medieval synods have dealt with the administration of curators of ecclesiastical property, e.g. can. vii, Conc. Bracar. (563); can. xxxviii, Conc. Mogunt. (813); can. x, Conc. Mogunt. (847); can. xxxv, Conc. Nation. Wirceburg. (1287). The employment of laymen in concert with clerics as trustees became common all over Christendom. In England such officials were called churchwardens. They were generally two in number, one being chosen by the parish priest, the other by the parishioners, and with them were associated others called sidesmen. The churchwardens administered the temporalities of the parish under the supervision of the bishop, to whom they were responsible. An annual report on the administration of church property was made obligatory in all countries by the Council of Trent (Sess. XXII, can. ix, "De Ref."): "The administrators, whether ecclesiastical or lay, of the fabric of any church whatsoever, even though it be a cathedral, as also of any hospital, confratemity, charitable institution called mont de piété, and of any pious places whatsoever, shall be bound to give in once a year an account of their administration to the Ordinary."

II. At the present time, the Church nowhere absolutely forbids the employment of laymen in the administration of ecclesiastical property, but endeavours, generally by means of concordats, to have her own laws and principles carried out on this subject when laymen are among the trustees. According to the present discipline, the fabric of the church is distinct from the foundation of the benefice, and sometimes the fabric, in addition to the goods destined for the upkeep of divine worship, possesses also schools and eleemosynary institutions (S.C.C., 27 Apr., 1895, in caus. Bergom.). All lay trustees must be approved by the bishop, and he retains the right of removing them and of overseeing the details of their administration. In countries in which the church organization was entirely swept away in the troubles of the Reformation period, as in the British Isles, laymen are not generally employed as trustees at the present day. For the trustee system, as far as it can be called such, in use in the Catholic Church in England and Ireland see Taunton, "The Law of the Church", pp. 15, 316. In Holland, laymen were admitted to a share in the administration of church temporalities by a decree of the Propaganda (21 July, 1856). The bishop is to nominate the members of the board, over which the parish priest is to preside. Trustees hold office for four years and may be reappointed at the expiration of that term. When a vacancy occurs the board presents two names to the bishop, from which he selects one. In necessary cases the bishop may dismiss any member and even dissolve the entire board of trustees. In this instance, as in all others where laymen are in question, the Holy See is careful to guard the prescriptions of the sacred canons as to the management and ownership of church goods [see ADMINISTRATOR (OF ECCLESIASTICAL PROPERTY)].

III. In the United States the employment of lay trustees was customary in some parts of the country from a very early period. Dissensions sometimes arose with the ecclesiastical authorities, and the Holy See has intervened to restore peace (see CONWELL, HENRY; PHILADELPHIA, ARCHDIOCESE OF; NEW YORK, ARCHDIOCESE OF). Pius VII vindicated (24 Aug., 1822) the rights of the Church as against the pretensions of the trustees, and Gregory XVI declared (12 Aug., 1841): "We wish all to know that the office of trustees is entirely dependent upon the authority of the bishop, and that consequently the trustees can undertake nothing except with the approval of the ordinary." The Third Plenary Council of Baltimore (Tit. IX, no.287) laid down certain regulations concerning trustees: It belongs to the bishop to judge of the necessity of constituting them, their number and manner of appointment; their names are to be proposed to the bishop by the parish rector; the appointment is to be made in writing and is revocable at the will of the bishop; the trustees selected should be men who have made their Easter duty, who contribute to the support of the Church, who send their children to Catholic schools, and who are not members of prohibited societies; nothing can be done at a board meeting except by the consent of the rector who presides; in case of disagreement between the trustees and the rector, the judgment of the bishop must be accepted. A decree of the Congregation of the Council (29 July, 1911) declares that the vesting of the title to church property in a board of trustees is a preferable legal form, and that in constituting such boards in the United States, the best method is that in use in New York, by which the Ordinary, his vicar-general, the parish priest, and two laymen approved by the bishop form the corporation (see PROPERTY, ECCLESIASTICAL, IN THE U.S.).

IV. The legal standing of church trustees according to British law is treated by Taunton, "The Law of the Church", pp.15, 315. In the United States the legal rights of trustees vary slightly in different States, but the following prescriptions (selected from Scanlan, "The Law of Church and Grave") hold almost everywhere: When the statute provides that two lay members of the corporation shall be appointed annually by the committee of the congregation, the members of the congregation have no right to elect said two members, and those appointed in the proper manner are lawful officers. When the election of new trustees is invalid, the old trustees hold over until there shall have been a valid election of their successors. The president and secretary of a church corporation have no authority to make a promissory note unless authorized by the board of trustees. When the laws of the organization give control of matters to the board of trustees, the majority of the members of the church cannot control the action of the trustees contrary to the uses and regulations of the church. A court has no authority to control the exercise of the judgment or discretion of the officers of a church in the management of its funds so long as they do not violate its constitutions or by-laws. Excommunication does not always remove an officer of a church corporation. The legal rights of a bishop in regard to the temporalities of a church, where they are not prescribed by the civil law, must rest, if at all, upon the ecclesiastical law, which must be determined by evidence. When property is conveyed to a church having well-known doctrine, faith, and practice, a majority of the members has not the authority or power, by reason of a change of religions views, to carry the property thus designated to a new and different doctrine. The title to church property is in that part of the congregation which acts in harmony with the law of the denomination; and the ecclesiastical laws and principles which were accepted before the dispute began are the standard for determining which party is right.

TAUNTON, The Law of the Church (London, 1906), s. vv. Fabric; Administration; Ecclesiastical Property; SCANLAN, The Law Of Church and Grave (New York, 1909); SMITH, Notes on II Council of Baltimore (New York, 1874), x; Concilium Plenarium III Baltimorense (Baltimore, 1886); WERNZ, Jus Decretalium, III (Rome, 1901).

WILLIAM H.W. FANNING

Benefices and patronage

 This article incorporates text from a publication now in the public domain: Herbermann, Charles, ed. (1911). "Patron and Patronage". Catholic Encyclopedia. Vol. 11. New York: Robert Appleton Company. {{cite encyclopedia}}: |contributor= ignored (help); Unknown parameter |next= ignored (help); Unknown parameter |previous= ignored (help)

I. By the right of patronage (ius patronatus) is understood a determinate sum of rights and obligations entailed upon a definite person, the patron, especially in connexion with the assignment and administration of a benefice; not in virtue of his hierarchical position, but by the legally regulated grant of the Church, out of gratitude towards her benefactor. Inasmuch as the rights of the patron pertain to the spiritual order, the right of patronage is designated in the decretals as ius spirituali annexum, and is therefore subject to ecclesiastical legislation and jurisdiction. Since, however, the question of property rights is also involved, a far-reaching influence is wielded to-day by civil laws and civil courts in matters pertaining to patronage.

II. In the Oriental Church the founder of a church was permitted to nominate an administrator for the temporal goods and indicate to the bishop a cleric suitable for appointment (L. 46, C. de episc. I, 3. Nov. LVII, c. 2). In the Western Church the Synod of Orange (441) granted such a right of presentation to a bishop who had built a church in another diocese (c. i, C. XVI, q. 5) and the Synod of Toledo (655) gave a layman this privilege for each church erected by him (c. 32, C. XVI, q. 7). But the founder had no proprietary rights (c. 31, C. XVI, q. 7). In the countries occupied by the Germanic tribes, on the basis of the individual temple and church rights found in their national laws, the builder of a church, the feudal lord, or the administrator possessed full right of disposal over the church founded or possessed by him, as his own church (ecclesia propria) and over the ecclesiastics appointed by him, whom he could dismiss at pleasure. To obviate the drawbacks connected with this, the appointment and dismissal of ecclesiastics at least formally was made subject to the consent of the bishop (c. 37, C. XVI, q. 7). In the course of the Conflict of Investitures, however, the private right over churches was abolished, although to the lord of the estate, as patron, was conceded the right as ius spirituali annexum of presenting a cleric to the bishop (ius praesentandi) on the occasion of a vacancy in the church (c. 13, C. XVI, q. 7; C. 5, 16, X de iure patronatus, III, 38).

III. The right of patronage may be: personal (ius patronatus personale) or real (reale); spiritual (ecclesiasticum; clericale), or lay (laicale), or mixed (mixtum); hereditary (haereditarium), or restricted to the family, or even to a definite person (familiare; personalissimum); individual (singulare) or shared (ius compatronatus); complete (plenum) or diminished (minus plenum). A personal right of patronage is peculiar to a person as such, while a real right of patronage belongs to one in possession for the time being of something with which a patronage is connected, provided of course that he is qualified for the possession of the right of patronage. A spiritual patronage is one belonging to the incumbent of an ecclesiastical office, or established by the foundation of a church or a benefice out of ecclesiastical funds, or instituted by a layman and later presented to the Church. Thus the patronages in possession of secularized bishoprics, monasteries, and ecclesiastical foundations are regarded as spiritual. A lay patronage is established when an ecclesiastical office is endowed by anyone out of private means. A patronage is mixed when held in common by the incumbent of an ecclesiastical office and a layman.

IV. Any church benefice, with the exception of the papacy, the cardinalate, the episcopate, and the prelatures of cathedral, collegiate, and monastic churches, may be the object of the right of patronage. All persons and corporate bodies may be subject to the right of patronage. But persons, besides being capable of exercising the right, must be members of the Church. Thus heathens, Jews, heretics, schismatics, and apostates are ineligible for any sort of patronage, even real. Nevertheless in Germany and Austria it has become customary as a result of the Peace of Westphalia, for Protestants to possess the rights of patronage over Catholic, and Catholics over Protestant church offices. In modern concordats Rome has repeatedly granted the right of patronage to Protestant princes. Entirely ineligible for patronage are the excommunicati vitandi (the excommunicati tolerati are able at least to acquire it), and those who are infamous according to ecclesiastical or civil law. On the other hand, illegitimates, children, minors, and women may acquire patronages.

V. A right of patronage comes into existence or is originally acquired by foundation, privilege, or prescription. Under foundation or fundatio in the broader sense is included the granting of the necessary means for the erection and maintenance of a benefice. Thus, granting that a church is necessary to a benefice, three things are requisite: the assignment of land (fundatio in the narrow sense), the erection of the church at one's private expense (aedificatio), and the granting of the means necessary for the support of the church and beneficiaries (dotatio). If the same person fulfils all three requirements, he becomes ipso jure patron, unless he waives his claim (c. 25, X de jure patr. III, 38). Whence the saying: Patronum faciunt dos, aedificatio, fundus. Different persons performing these three acts become co-patrons. It is an accepted theory that one who is responsible for only one of the three acts mentioned, the other two conditions being fulfilled in any manner whatsoever, becomes a patron. It is possible to become a patron also through the reœdiftcatio ecclesiœ and redotatio beneficii. A second manner in which a patronage may be acquired is through papal privilege. A third is by prescription.

VI. Derivatively, a patronage may be obtained through inheritance ex testamento or ex intestato, in which case a patronage may easily become a co-patronage; by presentation, in which a lay patron must have the sanction of the bishop if he desires to transfer his right to another layman, but an ecclesiastic requires the permission of the pope to present it to a layman, or that of the bishop to give it to another ecclesiastic (c. un. Extrav. comm. de rebus eccl. non alien. III, 4). Furthermore an already existing right of patronage may be acquired by exchange, by purchase, or by prescription. In exchange or purchase of a real patronage the price of the object in question may not be raised in consideration of the patronage; the right of patronage being a ius spirituali annexum, such a thing would be simony. That the ruler of a country may acquire the right of patronage in any of the three ways mentioned, like any other member of the Church, goes without saying. On the other hand, it would be false to teach, as did the Josephinists and representatives of the "Illuminati", that the sovereign possesses the right of patronage merely by being ruler of the country, or that he receives the patronage of bishoprics, monasteries, and ecclesiastical foundations through secularization. Yet this question is now generally settled in Germany, Austria, etc. by agreement between the civil Governments on the one hand and the pope or bishops on the other.

VII. The rights involved in patronage are: the right of presentation, honorary rights, utilitarian rights, and the cura beneficii.

(a) The, right of presentation (ius praesentandi), the most important privilege of a patron, consists in this, that in case of a vacancy in the benefice, he may propose (praesentare) to the ecclesiastical superiors empowered with the right of collation, the name of a suitable person (persona idonea), the result being that if the one suggested is available at the time of presentation, the ecclesiastical superior is bound to bestow on him the office in question. Co-patrons with the right of presentation may take turns, or each may present a name for himself, or it may be decided by vote. In the case of juridical persons the presentation may be made according to statute, or by turns, or by decision of the majority. The drawing of lots is excluded.

With regard to the one to be presented, in the case of a benefice involving the cure of souls, the ecclesiastical patron must choose from among the candidates for presentation the one he believes the most suitable, judging from the parish concursus. The lay patron has only to present the name of a candidate who is suitable in his opinion. In case this candidate has not passed the parish concursus, he must undergo an examination before the synodal examiners. In the case of a mixed patronage, the rights of which are exercised in common by an ecclesiastical and a lay patron, the same rule holds as in the case of a lay patronage. Here it is the rule to deal with the mixed patronage, now as a spiritual and again as a lay patronage, according as it is most pleasing to the patrons. If the prerogatives of the mixed patronage are exercised in turn, however, it is considered as a spiritual or a lay patronage, as suits the nature of the case. The patron cannot present his own name. Co-patrons may, however, present one of their own number. If through no fault of the patron, the name of an ineligible person is presented, he is granted a certain time of grace to make a new presentation. If, however, an ineligible person has been knowingly presented, the spiritual patron loses for the time being the right of presentation, but the lay patron, so long as the first interval allowed for presentation has not expired, may make an after-presentation. Thus the presentation of the spiritual patron is treated more after the manner of the episcopal collation. On that account the spiritual patron is not permitted an after-presentation or a variation in choice, which is permitted the lay patron, after which the bishop has the choice between the several names presented (ius variandi cumulativum, c. 24, X de iure patr. III, 38).

A presentation may be made by word of mouth or in writing. But under penalty of nullity all expressions are to be avoided which would imply a bestowal of the office (c. 5, X de iure patr. III, 38). A simoniacal presentation would be invalid. The time allowed for presentation is four months to a lay patron, and six to a spiritual patron; six months is stipulated for a mixed patronage when exercised in common, four or six months when turn is taken (c. 22, X de iure patr. III, 38). The interval begins the moment announcement is made of the vacancy. For one who through no fault of his own has been hindered in making a presentation, the time does not expire at the end of the period mentioned. When his candidate has been unjustly rejected by the bishop, the patron may appeal, or make an after presentation.

(b) The honorary rights (iura honorifica) of the patron are: precedence in procession, a sitting in the church, prayers and intercessions, ecclesiastical mentions, burial in the church, ecclesiastical mourning, inscriptions, special incensing, the asperges (holy water), ashes, palms, and the Pax.

(c) The utilitarian rights (iura utilia) of the patron consist essentially in this: that in so far as he is a descendant of the founder he is entitled to an allowance sufficient for his maintenance from the superfluous funds of the church connected with the patronage if, through no fault of his own, he has been reduced to such straits as to be unable to support himself, and no one else is under any obligation to assist him (c. 25, X de iure patr. III, 38). To draw any other material advantages from the church connected with the patronage, as so frequently happened in the Middle Ages, it is requisite for this condition to have been made at the time of foundation with the consent of the bishop, or that it be subsequently stipulated (c. 23, X de iure patr. III, 38. C. un. Extrav. comm. de rebus eccl. non alien. III, 4).

(d) The right or important duty (iura onerosa) of the patron is, in the first place the cura beneficii, the care to preserve unimpaired the status of the benefice and the conscientious discharge of the obligations connected therewith. He must not, however, interfere in the administration of the property of the benefice or the discharge of the spiritual duties on the part of the holder of the benefice. This cura beneficii entitles the patron to have a voice in all changes in the benefice and the property belonging to it. Again, on the patron is incumbent the defensio or the advocatia beneficii (c. 23, 24, X de iure patr. III, 38). In the present administration of justice however, this obligation has practically disappeared. Lastly, the patron has the subsidiary duty of building (Trent, Sess. XXI, "de ref.", c. vii).

VIII. The right of patronage lapses ipso iure at the suppression of the subject or object. If the church connected with the patronage is threatened with total ruin, or the endowment with a deficit, if those first bound to restore it are not at hand, the bishop is to exhort the patron to rebuild (reœdificandum) or renew the endowment (ad redotandum). His refusal forfeits him the right of patronage, at least for himself personally. Furthermore, the right of patronage is lost upon express or tacit renunciation. And lastly, it lapses in cases of apostasy, heresy, schism, simoniacal alienation, usurpation of the ecclesiastical jurisdiction over the patronal church or appropriation of its goods and revenues, murder or mutilation of an ecclesiastic connected with the church.

HINSCHIUS, Das Kirchenrecht der Katholiken und Protestanten in Deutschland, II (Berlin. 1878), 618 sqq.; ZHISHMAN, Das Stifterrecht in der morgenländischen Kirche (Vienna, 1888); WAHRMUND, Das Kirchenpatronatsrecht und seine Entwicklung in Oesterreich (Vienna, 1894); STUTZ, Geschichte des kirchlichen Benefizialwesens (Berlin, 1895); THOMAS, Le droit de propriété des laïques au moyen âge (Paris, 1906); PÖSCHL, Bischofsgut und mensa episcopalis, X (Bonn, 1898), 32 sqq.

JOHANNES BAPTIST SÄGMÜLLER.

[[Category:Canon law of property]]