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CANON LAW OF PROPERTY

NO sooner did the Emperor Constantine early in the fourth century lift the Church into partnership with the State than vast wealth began to accumulate in ecclesiastical hands. The Emperor himself lavished on the hierarchy and clergy rich endowments of both movable and immovable property. His lay subjects emulated the example of their prince in filling the Church coffers to overflowing.

As the imperial authority disappeared from the West and permitted the Roman bishops to assume the chief prerogatives of the departed emperors, growing streams of revenue flowed into the papal coffers from every part of the western world. Exigencies of the turbulent medieval centuries forced many western princes into vassalage to the Papacy and many lesser prelates of the Church into like political servitude to the princes. Both relations added fabulous landed domains to the riches of the hierarchy.

The doctrine of purgatory, the practice of consecrating cemeteries and other properties, the usurped jurisdiction of ecclesiastical courts, including that of the Sovereign Pontiff as the tribunal of last resort, fees for the confessional, and tithes, taxes, donations and testamentary favors of the faithful in every land rendered the papal government by far the richest institution in the world.

Pretending to have been founded by Him who had nowhere to lay His head and to derive its illicit powers through Peter, who had neither silver nor gold, the Roman See acquired title to half of the soil in England and a larger portion in some continental lands, while its revenues surpassed those of the mightiest imperial and royal princes.

The accumulation and handling of resources so enormous called for elaborate statutory enactments and customary law. The spirit of that law was simplified more and more in the light of progressive experience and growing absolutism of the hierarchy and the Supreme Pontiff. One outstanding policy pervaded and shaped the entire legislative and judicial program—the policy of vesting all lands and chattels in the hierarchy with supreme and ultimate custody and control in the Roman Pontiff.

That policy has never been modified nor relaxed. The present canon law of property is the result of its perfection during more than twelve papal centuries. In addition to many canons scattered through the new Codex Juris Canonici vesting in the hierarchy the wealth of all monastic and "religious" orders and congregations and all property and equipment of the chartered institutions of Rome in every land, fifty-seven canons, numbered 1495 to 1551, inclusive, are devoted exclusively to that purpose. They comprise all of Part Six of the Third Book of the Codex.

At the very threshold of the group of canons or statutes mentioned stands the fundamental doctrine of the papal law of property in flagrant defiance of the law of every country on earth. Canon 1495 makes this declaration of the papal law:

"Sec. 1. The Catholic Church and the Apostolic See have the inherent right, FREELY AND INDEPENDENTLY OF ANY CIVIL POWER, to acquire, retain, and administer temporal goods for the pursuit of their own ends.
"Sec. 2. Individual churches and other corporations established as such by ecclesiastical authority are also endowed with the right of acquiring, retaining, and administering their own property, according to Canon Law."

The English text here given is the translation made with hierarchical authority by Rev. P. Charles Augustine in his Commentary on Canon Law. Emphasis in the first section is inserted.

The words emphasized differentiate the property rights claimed by the Roman hierarchy under canon law from all other property rights whatever. The difference is fundamental.

Others than the hierarchy of Rome acknowledge the sovereign State as the source of law and of property rights under the law. As the public domain, for instance, is parceled out to individual owners their titles are all subject to the paramount right of the State. That paramount right is evidenced by the power of the State to take over private properties under the law of eminent domain, the right to exact payment of taxes, and the right to recover the property by escheat on failure of legal heirs or under other conditions of law.

So are all titles, even those in fee simple, subordinate to the supreme dominion of the civil power. But the Roman claim set forth in the canon law is that ecclesiastical authorities hold title independently of the civil power and that their rights are equal or superior to those of the State. Consequently the canon law denies the right of civil government to tax ecclesiastical properties or to exercise any dominion over them.

This issue of law is coextensive with the Roman Catholic Church and is everywhere a source of embarrassment and strife. In papal countries ecclesiastical properties are exempted from taxation under the claim of absolute right, while in Protestant lands a like exemption is sought and usually granted as a favor of the civil power.

Wherever it is possible the papal government stipulates with the civil powers in treaties or concordats for complete exemption of Church property from taxation in harmony with the doctrine of the canons. The whole question of taxation of Church properties is of Roman Catholic origin and has arisen out of the papal contention as stated in Canon 1495. The question is whether ultimate dominion of the soil is in the Pope or the civil government. The issue is far deeper than the surface. Taxation is but a minor aspect of it. It is fundamentally one of sovereignty.

Pursuant to the policy of vesting title to all ecclesiastical property exclusively in the hierarchy, the Third Plenary Council of Baltimore, in 1884-1885, by authority of Pope Leo XIII, enacted a statute containing triple provision for completely effecting that purpose in the United States.

Proceedings of that Council are known as Concilli Plenarii Baltimorensis III, Acta et Decreta, and can be obtained only in Latin as copyrighted by the late Cardinal Gibbons in 1886. In Title IX, Head II, sections 267-8 of the Acta et Decreta the statutory provisions mentioned are found on page 153. The Catholic Encyclopedia, Volume XII, at page 473, gives the following free translation of the provision into English:

"(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."

In the same connection the Encyclopedia states that in 1911 and at other times since the Third Plenary Council the prelates have made some slight formal modifications of the law as enacted then. It concludes the statement with this quotation from a magazine article by Dr. P. A. Bart:

"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."

Space prohibits further elucidation here of the canons mentioned. But monopoly of all property rights in the hands of the enthroned hierarchy alone is the fixed policy of all property legislation of Rome.