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 PROPERTY

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PROPERTY

ecclesiastical property of the Papal States, is different from those who co-operate in the same way elsewhere. The Encyclical " Respicientes " of 1 Nov., 1S70, deal- ing with the former class clearly extends the excom- munication 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 spoli- ators and usurpers of the property or those who order and plan it; the law affects, in other words, the prin- cipals 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 Abb6 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 admin- istrators. These and similar points are dwelt upon in the Decrees of the Second Plenary Council of West- minster (188.5), 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 con- cerning church property, without the express author- ity 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 otTerings, stole fees (jura slolae), 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 accu- rately drawn up according to the civil law and in the name of three or four trustees (curatoritm). 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 ap- point 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 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, Velus et nota ecdesifi disriplina 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, Verino, ScHMALZGRi>BER. ncccssarily deal with the matter at some length, and among modern authorities special mention should be madeof Wernz, Jus Decrelalium. Ill (Rome, 1908); SarmOller, Kirrhenrecht (Freiburg, 1909); Laurentiub, InstU. juris eccl. (Freiburg, 1908); see also Mamachi, Del diritto libero delln chiesa di acquistare e pogsedere boni temporali (Venice, 1766); Meurer, Der Begriff und EifjentHmer der heiligen Sachen (DQsseldorf, 188.'>) ; Bondroit, De capacitate possidendi ecclesim (Louvain. 1900): ScHEYft, De jure eccleeice acquirendi (Louvain. 1892); Knecht, System des justinianischen Kirchenvermdgensrechts (Stuttgart, 190.5); MotiLART, L'(glise et Vitat (Paris. 1902); Gennari, Consultations de morale, de droit canonigue et de liturgie

(1907-9); Boudinhon, Biens d'^glise et peines canonigues, in Canoniste contemporain (April, 1909-Oct., 1910); Fourneret in Diet, de theol. Cath., s. v. Biens ccclesiastiques; Taunton, Law of the Church (London, 1905).

Herbert Thurston.

Property Ecclesiastical, in the LInited States. — The Third Plenary Council of Baltimore decreed (tit. IX, cap. i, n. 264): "We must hold, holily and inviolably, that the complete right of owTier- ship and dominion over ecclesiastical goods resides in the Church." In English-speaking countries, how- ever, the State as a rule does not recognize this in- herent 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 projjerty 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 re- gretted that in many parts of the United States the civil laws concerning the possession and administra- tion 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 L'nited 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 Sys- tem), 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 scripio assignata). Administrators of temporal goods were exhorted to observe the prescrip- tions 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 measiu-es as soon as possible to secure the carrying out of the intentions of the donors, according to the safest method pre- scribed 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 testa- ments, 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 ex- pressed 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 de- sired that each bishop, within three months after his consecration, should make a will and deposit a dupli- cate 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 he elected by the faithful, lest an impediment arise to their free ;i(lniinistration" (n. 94). In like manner, the Second Plenary Council made new de-