Page:Catholic Encyclopedia, volume 7.djvu/789

 IN COMMENDAM

719

INCOKPORATION

In Commendam. — A phrase used in canon law to designate a certain manner of collating an ecclesi- astical benefice. The word commendam is the accusa- tive of the Low Latin noun commenda, "trust", or "custody", which is derived from the verb commen- dare (to give in trust). The phrase in commendam was originally applied to the provisional collation and occupation of an ecclesiastical benefice which was temporarily without an actual occupant. It was thus opposed to the phrase in titulum which was ap- plied to the regular and unconditioned collation of benefices. The custom of giving benefices in com- mendam dates back to the fourth century. Thus St. Ambrose makes mention of a church which he gave in commendam, while he was Bishop of Milan: "Com- mendo tibi, fili, Ecclesiam quae est ad Forum Cor- nelii . . . donee ei ordinetur episcopus." (Ep. ii, P. L., XVI, 886-87). The Third Council of Orleans, held in .538, in its eighteenth canon puts commendams under episcopal supervision (Mansi, "Coll. Amplis- sima Cone", IX, 17). Gregory the Great on vari- ous occasions gave churches and monasteries in com- mendam to such bishops as had been driven from their sees by the invading barbarians, or whose own churches were too poor to furnish them a decent livelihood (Epp. i, 40; ii, 38; iii, 13; vi, 21; in P. L., LXXVII, 493, 577, 614, 812). In course of time the custom arose of allowing ecclesiastics, and even lay- men, to draw the revenues of ecclesiastical benefices, without having any jurisdiction over spiritual affairs. In many cases, also, the one who held a benefice in commendam in this manner had the right antl the obligation to engage and pay an ecclesiastic for ful- filling the spiritual obligations of the benefice. In the Middle Ages such commendams were often given to students, professors, church diplomats, cardinals, and others. (Concerning the abuses of this practice and the efforts of popes and councils to put an end to them, see Commendatory Abbot.) The pope has now reserved to himself the right of givino; benefices in commendam, but makes use of this right only in cases of cardinals who reside in Rome. At present Cardinal Oreglia holds in commendam the Church of Santi Vinccnzo ed Anastasio alle tre Fontane; Car- dinal Aglianli, the Church of San Lorenzo in Damaso; Cardinal Vincenzo Vannutelli, the Church of San Silvestro in Capite; Cardinal Cassetta, the Church of Santi Vito, Modesto e Crescenzia, and Cardinal Ram- polla is Grand Commendatory Prior of the Knights of Malta.

Besides the bibliography mentioned under Commendatory Abbot, see Permaneder in Kirchenlei., s. v. Commende; Phil- lips, Kirchmrcchl. VII (Ratisbon, 1845-89), 282 sq.; HlNS- CHIUS, Das Kirchenreclit der Kfitholikrn und Protestanten in DeiUschland, III (Bcrhn, 1869-07). l(l<): Du Cange. Glossarium Medics et InjimiT LalinitatiSy II (Niort, 1883-7), 441.

MlCH.^EL OtT.

Incorporation of Church Property, Civil. — Chris- tianity at its very beginning, foimd the concept of the corporation well developed under Roman law and widely and variously organized in Roman society. It was a concept that the early Christians soon adapted to their organization and, as a means of protection in the periods of persecution. Whether we attach to the burial corporations (collegia tenuiorum or funer- aticia) of the early Christians the importance that De Rossi and other archa!ologists do, there can be no doubt that in the second and third centuries of the Christian era the corporation was generally resorted to as a means of holding, and transmitting church prop- erty. In later times this concept fitted in naturally with the genius of the religious orders, and the great monastic establishments of the Middle Ages were or- ganized on that plan. "In the Middle Ages, all life", says Dr. Shahan (Middle Ages, p. 346), "was cor- porate. As religion was largely carried on by the corporations of monks and friars, so the civic life and its duties were everywhere in the hands of corpora-

tions. " The mortmain legislation of the Middle Ages indicates that the corporation, as adapted for the hold- ing of ecclesiastical property, was not only a secure, but a prosperous method of tenure in times of feudal warfare. In one instance, the Middle Ages improved upon the Roman concept of the corporation. The cor- poration sole was a refinement of the canon lawyers. Its most familiar instance in English law is the bishop, the vicar, or the pastor, who succeeds to the rights of an office and by consequence to the sole custody of its temporalities. Blackstone's division of corporation into lay and ecclesiastical (Commentaries, Book II, ch. IS) has no application in the United States where all incorporated religious societies are treated as pri- vate civic corporations.

In the United States. — While in England cor- porations exist or are created by prescription, royal charter, or Act of Parliament, in the United States they are created by the state legislature, either by special Act or under the provisions of general statutes. Con- gress may create corporations only as incident to its powers of government, as set forth in the federal con- stitution, and not in any case, religious corporations. General provisions for the incorporation of religious societies are found, at an early date, in the laws of most of the states (as New York, in 1784). And pro- visions for the incorporation of the churches of special denominations soon followed (in New York, for the Protestant Episcopal Church in 1813; for the Society of Friends in 1839; for the Catholic Church in 1863). Prior to the Revolution, when the Catholic Church was without civil rights in the colonies, title to its property was held in the name of individuals. The Jesuit estates in Maryland were so hekl for one hun- dred and fifty years. With the establishment of the United States, Catholic bodies proceeded after the fashion of their fellow citizens of other denominations, to incorporate. The religious orders were among the first: the Augustinian Fathers at Philadelphia, in 1796; the Sulpicians at Baltimore, in 180.5; the Jesuits at Georgetown, in 1815; some years later the Domin- icans, by Act of legislature in Ohio, etc. With the acquiescence of .\rchbishop Carroll manv parishes also incorporated ; St. Mary's and Holy Trinity, two Phila- delphia congregations, as early as 1788. There was no uniform plan followefi in these articles of incorpora- tion, and no sufficient safeguarding of ecclesiastical discipline. In the ensuing years a number of disedify- ing controversies arose between lay trustees on the one hand and the bishop or his representative, the pastor, on the other, chiefly relating to the right of the bishop to designate for the congregation a pastor not of their preference, or (as in the case of the famous Hogan schism in Philadelphia, 1821-2) to exclude a pastor deemed unfit or disqualified. Troubles of this kind led to a Brief dated August 22, 1,822, from Pius VII to Archbishop Marechal, in which "the immoderate and unlimited right which trustees or the administrators of the temporal properties of the Church assume inde- pendently of the diocesan bishops", is condenmed. As a further consequence, the fifth decree of the First Provincial Council of Baltimore (1829), orders: "Since lay trustees have too often abused the power given them by the civil law, to the great detriment of reli- gion, we greatly desire that in the future no church shall be built or consecrated unless it shall have been assigned, by written instrument to the bishop in whose diocese it is to be built, wherever this can be done." This policy, in a general way, governed the tenure of Catholic church property in the United States for the ensuing generation, and by 1855 Catholic churches in the United States (except those held by religious or- ders) were almost wholly in the name of the bishops.

But in the meanwhile, it appears to have been recog- nized that the holding of church property in the name of the bishop, under the rules of canon law, was fraught with some dangers and inconveniences. In