PROPERTY
471
PROPERTY
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, ap-
plication must be made to the Holy See before the
number can be reduced.
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 oiily a persona moralis, she is in the position of a min or, and disposes of her property through her prelates and administrators. Xo one of these, not even the pope, has the power to aUenate ecclesiastical property- validly, without some pro- portionate reason (Wernz. "Jus Decret.", Ill, i, 179). Further, the alienation, which in accordance with num- berless decrees and canons of s\-nods (see the second part of the Decret., C. xii, q. 2, canons 20, 41, 52) is thus forbidden, comprehends not only the transfer- ence 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 tor any nota- ble time diverted from their proper uses. It is to this inahenability of aU 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 prej- udice already referred to against property held in "mortmain" grew up in the thirteenth centur>'.
Still the prohibition of alienation is not absolute. It is prohibited only when done ■n-ithout just reason and without the requisite formalities. As "just reasons" the canonists recognize: (1) urgent neces- sity, for example, when a church is in debt and has no other means of raising the money needed; (2) manifest utility, such as may occiu- when an oppor- tunity 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 starring poor; and (4) con- venience, 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 alien- ation 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 [Iractatus), 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 aUenation issued by competent authority, e. g., the \-icar-general if he is empowered to do tins;
(4) the formal consent of interested parties and in many cases of the cathedral chapter.
Finally the important constitution "Ambitiosse" of Paul II, "confirmed bv Urban VIII, 7 Sept., 1624, and by Pius IX in the Constitution "ApostoUcae Sedis", 12 Oct., 1809, requires under penalty of excommunica- tion the consent of the Holy See for the alienation of immovable property of great value. At one time it was contended that the Constitution "Ambitiosae" had fallen into desuetude, but most canonists hold that in the face of the " Apostolicce Sedis" this carmot now be maintained (see e. g.. Wernz, III, n. 165, Sagmiiller, 879). Still the requirements of the "Am- bitiosae" 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 Plenar>- Council of
Baltimore (1884) laid down that all acts of alienation
or any equivalent disposition of property involving a
sum greater than S5000 required papal permission,
the consent of the diocesan consultors ha\-ing been
preWously 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 exiguus], hence in this matter a decision to meet
the case ought to be obtained by each countrj- sepa-
rately from the Apostolic See."
It will be readily imderstood that all forms of hj'pothecation or the raising of mone3- upon the security of church property must be regarded as sub- ject to the same conditions as alienation. In cap. iii, X, de pign. iii, 21, the "Corpus Juris" has presen-ed a decretal of Alexander III addressed to the Bishop of Exeter and deciding that in a ease where the parish-priest had pawned a sOver chalice and a Brev- iarj- and had died before redeeming them, his heire were to be compelled imder 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 pri^nleges. 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 propeny forty years are required, and against the Holy See one hundred j-ears. .\s to the much controverted question regarding the true owner (subjedum dominii) of eccle- siastical property, the more approved view at the present day looks upon each institution as the pro- prietor of the goods belonging to it, but always in subordination to the supreme jurisdiction vested in the Holy See (Wernz, "Jus Decret aUimi", III, n. 138). .A.S Wernz forcibly argues, if the Universal Church were itself the proprietor it would also be bound by all the debts by which any and everj" ecclesiastical institution was burdened. But neither the Universal Chm-ch nor the Holy See have ever admitted such an obligation, neither have they ever declared that one institution was Uable 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 personahty is destroyed, its property passes by right to the omiershipof the Universal Church, of which the institution in question was bj- supposition a member or part. Further, since it is in v-irtue of its coimexion with the Universal Cliurch that the right of acquiring and owning propeny belongs to any ecclesiastical organization, it is commonly held that if it revolt from the obedience of the Church and apostatize from the Catholic Chm-ch it has no longer any claims to the propeny which it originally acquired for Catholic purposes as a member of the Church.
Upon the principle that the civtI power, as such, has neither the supreme dominion nor any just control over the administration of ecclesiastical propeny, ex- cept in so far as the Church by concordats or other agreements may freely concede cenain powers to the State, all approved writers within the Church are agreed. Xeither can there be any question that the Decree of the Council of Trent i.Sess. XXII, de ref., cap. ii), upheld by the Constitution ".\postolica Sedis" of Pius IX, which pronoimces an excommuni- cation and other censures against the usurpers of ehiu-ch goods, is still in full vigoiu-. It must be plain, then, that the recent wholesale confiscations in Italy, France, and other countries, have given rise to a vast number of ven.^ difficult questions as to the extent to which those who in various ways have participated in these confiscations are subject to the censures pro- nounced against the usurpers of the Chiu-ch's goods. The position of those who participate in the act of spoUation by aid, counsel, or favour, in the case of the
