PROPERTY
468
PROPERTY
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 iKKXrja-lai, not
with those of the general iKK\rja-la, 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 ovra sphere of
authority.
There can be no reasonable doubt that, with the exception of the monasteries which possessed then- goods as independent institutions, though even then under the superintendence of the bishop (see authorities inlvnecht, op. cit., p.5S), thewhole ecclesi- astical 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 clerg}-, received only the stipends which he allowed them, while not only the support of his ecclesiastical assist- ants, 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 chm-ches, all de- pended immediately upon him. No doubt custom regulated in some measure the distribution of the resources available. Popes Simplicius in 475, Gelasius in 49-1 (Jaffe-Wattenbach, Regesta", 636), and Greg- ory the Great in his answer to Augustine (Bede, "Hist, eccl.", I, x.wii) quote as traditional the rule "that all emoluments that accrue are to be diN-ided into four portions — one for the bishop and his household be- cause of hospitahty and entertainments, another for the clerg}-, 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. — Centraliza- tion of this kind, however, lea\-ing everjihing, as it did. in the bishop's hands, was adapted only to peculiar local conchtions and to an age which was far advanced in commerce and orderly government. For the sparsely settled and barbarous 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 sj-sfem already existing in the Roman Em- pire. The Council of Orleans 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 actualK- 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 Ln\nolabUity of her property, the pages of Gregorj- of Tours bear ample e\-idence to the generosity with which religion was treated during the early Mero\"ingian period (cf. Hauck. Kirchengeschichte Deutschlands". I, 134-7) — so much so that Chilperic (c. 580) complained that the royal treasm-y was exhausted because all the wealth of the kingdom had been transferred to the churches.
Almost everj-where the respect due to the rights of the clergy was put in the foremost place. As Mait- land has remarked (Hist, of Eng. Law, I, 499), "God's property and the Church's, twelvefold" are the first wTitten words of English law. The conscious- ness 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 al.so, by the ad\'ice of wise persons, introduced judicial decree.s, after the Roman model, which, being written in English, are si ill kej)! and observed by them. .Among which he in the first iilace set down what satisfaction should be given by those who should steal anything belonging to the Church,
the bishop or the other clergj-, resohdng to give pro-
tection to those whose doctrine he had en^hrr- u '
(Hist, eccl., II, 5). Even more exphcit is the la-
mous pri^•ilege of Wihtred, King of Kent, a hundred
j-ears later (c. 696): "I, Wihtred, an earthly k:ng,
stimulated by the heavenly King and kindled with
the zeal of righteousness, have learned from the insti-
tutes of our forefathers that no laj-man ought -nith
right to appropriate to himseh 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 Almight}' 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 prede-
cessors in days of old have given for the glory of
Christ, and our ladv St. Marv and the holv 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 ci^'itas, governed by a bishop, who was assisted by presbi- teriuin of subordinate clergj-, was unworkable in rude and sparsely populated districts. In those more northerly regions of Europe which now began to embrace Cliristianity, village churches remote from one another had to be pro\nded, and though many no doubt were founded and maintained bj- the bishops themselves (cf. Fustel de Coulanges, "La monarchic 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 buUt 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 pro-idsion of worldly goods is secured for the priest. Here we see the origin of patronage. This "advowson" (advo- catio), 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 verj- dangerous to peace and to ecclesiastical liberty. ^\'here such advowsons rested in the hands of the clergy or monastic institutions, there was nothing very unseemly in the idea of the patron "own- ing" 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 pro\'ided 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 priv.ate 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 pn)i>erty out of the hands of the bishops. A canon of the Third Council of Toledo (589), re-enacted sub- sequently elsewhere, speaks very significantly in thia connexion. "There are many", it says, "who against
