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 PROPERTY

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PROPERTY

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 Genossensehaftsrecht ", 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 consuUum or something of the sort to be legally constituted.

These well-understood principles, we might sup- pose, 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 sacrce 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 re- quired that there should be some authoritative recognition of such consecration. As res sacrw these things were regarded as in a sense withdrawn from the exercise of ordinary ownership, and formed a category apart..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 ex- pUcitly exempted from t his inhibit ion and were allowed to inherit as any private individual inherited. Such deities were, for example, Jupiter Tarpeius at Rome, Apollo Didyma?us of Miletus, Diana of the Ephe- sians, 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 sacra: 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 for- bidden to be alienated or burdened (ohligari) 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 prop- erty 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 cen- turies 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 property was vested in the Church (ecclesia catholica) as a whole. Others like Seitz and Thomas- sinus favour a supernatural ownership by which God Himself was regarded as the true proprietor. To others again, and notably to Sa\-igny, the theory has commended itself that the Church held property as a community, while many still more modern authorities, with Friedberg, Sagmiiller, and Meurer, defend the view that each separate local chiirch was regarded as an institution with proprietary rights and was iden- tified, at least popukuly, with its patron saint. Ac- cording to this conception the saints were the succes- sors of the pagan gods, and whereas previously Jupiter Tarpeius, or Diana of the Ephesians, had ow-ned land and revenues and sacred vessels, so now under the Christian dispensation St. Michael or St. Mary or St. Peter were regarded :is the proprietors of all that be- longed to the churches that were respectively dedi- cated to them.

Xo doubt this \-iew obtains some apparent support from the fact that almost everj'where, 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 Mait- land, "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 o%\Tiership of ecclesiastical goods. The truth seems to be, as Knecht has sho^\Ti (System des Justinianischen Kirchenvermogensrechts, pp. 5 sq.), that the Chris- tian 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 chiu-ches, and not to the indi\-iduals " ("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 (cn7icilio) of the Catholic faith" was guaranteed. Practically speaking there can be little doubt that this Christian "concilium", "collegium", "corpus" or " convent icuhmi" (the words principally used to indicate the body of true believers) denoted primarily the local Christian assem- blies 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 Bon- droit (De caiiacitate possidendi ecclesia", 123-36) to re\'ive the old conception of a dominium etninens vested in the universal Church Catholic, there is not much evidence to show that such a view was current