Ecclesiastical Property in the United 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 ownership and dominion over ecclesiastical goods resides in the Church." In English-speaking countries, however, the State as a rule does not recognize this inherent 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 property 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 regretted that in many parts of the United States the civil laws concerning the possession and administration 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 United 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 SYSTEM), 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 scripto assignata). Administrators of temporal goods were exhorted to observe the prescriptions 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 measures as soon as possible to secure the carrying out of the intentions of the donors, according to the safest method prescribed 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 testaments, 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 expressed 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 desired that each bishop, within three months after his consecration, should make a will and deposit a duplicate 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 be elected by the faithful, lest an impediment arise to their free administration" (n. 94). In like manner, the Second Plenary Council made new decrees concerning church property. The Fathers of this council seem to have been hopeful that the prescriptions of canon law would find free play in the United States. They say "In these United States it is the right of all citizens to live freely according to the precepts of their religion, and as the civil laws recognize and declare the same, it seems that there is no obstacle to the exact observance of the laws decreed by councils and popes for the legitimate acquisition and preservation of ecclesiastical property, the Fathers desire, therefore, that the right of the Church be vindicated in the eyes of all and publicly before the State, so that Catholics may be allowed to observe the laws of the Catholic Church in acquiring, holding and preserving ecclesiastical goods, such as lands for church edifices, presbyteries, schools, cemeteries etc. This complete liberty, however, can be said to exist only when the laws and ordinances of the Church are recognized by the civil tribunals and thus receive civil effect. By such provisions the rights of all will be preserved, possible abuses will be obviated, and the power of the bishops, instead of being increased, will rather be diminished by the regulations made by the Church herself. For, at present, in order to obtain protection from the improper interference of lay tribunals, which in practice scarcely acknowledge the ecclesiastical laws, nothing now remains to the bishops for carrying out ecclesiastical decrees but to claim for themselves the fullest administration of property before the civil power. As, however, church regulations are not acknowledged as yet in some States, it is our duty to see that in those places where no provision has been made by the civil law, the impediments to the liberty of the Church and to the security of ecclesiastical property be removed or diminished" (tit. IV, cap. i, nn. 199, 200). The council then lays down regulations regarding lay trustees.

The Third Plenary Council (tit. IX, cap. ii, nn. 267-8) defined more exactly what was meant by secure methods of ownership according to civil law, directing that:

• (1) The bishop himself be constituted a corporation sole for possessing and administering the goods of the whole diocese; or

• (2) that the bishop hold the goods in trust in the name of the diocese; or

• (3) that the bishop hold and administer the church property in his own name (in fee simple) by an absolute and full legal title.

In the last case, the bishop is to remember that, though before the civil law he is the absolute owner, yet by the sacred canons he is only procurator. By whichever title the bishop holds the property, he is to keep inventories, carefully distinguishing between the church property and his own personal property. Since the Third Plenary Council the question of holding church property has more than once been discussed by the American bishops, and at the present time, in addition to the fee simple and the corporation sole methods, a modified system of the trustee method has found considerable favour. Concerning this, the "St. Paul Catholic Bulletin", says (I, no. 20): "Not only is it not true that the archbishops (at their meeting in 1911) discouraged the holding of church property by local churches, but on the contrary, they declared it to be the very best solution of the problem under consideration. And while in some States, owing to peculiar legislative enactments, other methods of holding church property are in vogue, yet it was admitted by the assembled prelates that the holding of church property by local parish corporations was by far the safest method. In the Archdiocese of St. Paul, each church is incorporated separately and independently of all others. Members of this corporation are ex-officio the Ordinary of the Diocese, his vicar-general, and the pastor of the parish, who select two laymen from the parish to represent the congregation. In addition to these separate parochial corporations, there is a general diocesan corporation known as 'The Diocese of St. Paul', in which is invested the control of all the property belonging to the diocese, not directly controlled by the aforesaid parish corporations." The laws of the Church are fully observed, as the bishop of the diocese exercises sufficient control over all the property; without him, the other members of the corporation can take no action binding in law, and he assumes no unreasonable obligations inasmuch as he himself is powerless to act without the consent and co-operation of the others. Dr. P. A. Baart ("Catholic Fortnightly Review", XIV, no. 4) says: "The Church, through the Sacred Congregation of Propaganda, whose decision and decree were approved by the Pope, has declared that the corporation system which recognizes the rights of the hierarchy is preferable to the fee simple tenure by the bishops as individuals before the civil law."

Concilia Provincialia et Plenaria Baltimorensia; BAART in The Catholic Fortnightly Review, VI, VII, XIV (St. Louis); TAUNTON, Law of the Church (London, 1906), s. v. Ecclesiastical Property; SMITH, Elements of Ecclesiastical Law, I (New York, 1895); IDEM, Notes on Second Plenary Council of Baltimore (New York, 1874).

WILLIAM H. W. FANNING.