Of Church Property. Alienation
Of Church Property. Alienation [1]
The transference by gift, sale, exchange, or perpetual emphyteusis (renting) of Church property was from early times restrained by special enactments. It is a much debated question among canonists whether alienation, except in extraordinary cases, was not absolutely prohibited in the first ages of the Church. This was by reason of the sacred character impressed upon property given for ecclesiastical purposes, and by that act dedicated to God. The oath now taken by Romish bishops contains a clause relating to the alienation of Church property. The words of this clause, as well as the time at which it was first introduced, have given rise to much controversy.
The general law of the Church makes all vessels and the like which have been consecrated to God, all immovable possessions, inalienable; the bishops to be ordinarily the administrators responsible to God. Its history, as it is found in the councils of different churches, has now to be traced.
The earliest canon on the subject is the fifteenth of, the Council of Ancyra (A.D. 314), which provides that the Church may resume possession of whatever property the presbyters of a diocese may have sold during the vacancy of the see. But this canon does not limit any, power which the bishop himself may have previously possessed.
The Council of Antioch (A.D. 341) has two canons bearing upon this subject. The twenty-fourth directs that Church. property should be distinguished in such a way that the presbyters and deacons may know of what it consists, so that at the bishop's death it may not be embezzled, lost, or mixed up with his private property. By the twenty-fifth canon it is provided that the provincial synod should have jurisdiction in cases where the bishop is accused of converting Church property to his own use, or managing it without the consent of the presbyters and deacons, and also in cases where the bishop or the presbyters who are associated with him are accused of any misappropriation for their own benefit.
The seventh and eighth canons of the Council of Gangra prohibit, under anathema, all persons from alienating produce belonging to the Church except they first obtain the consent of the bishop or his ceconomus, or officer intrusted with the care of Church property.
The fourth Council of Carthage, can. 31, enjoined the bishop to use the possessions of the Church as trustee; and by the next canon pronounced invalid all gifts, sales, or exchanges of Church property made by bishops without the consent in writing of their clergy.
By the twenty-ninth canon of the African code (A.D. 419) it is ordained that no one sell the real property belonging to the Church; but in case of urgency the primate of the province is to determine in council with bishops (twelve) whether a sale is to be made or not. In case the necessity for action is so great that the bishop cannot wait to consult the synod, then he is to summon as witnesses the neighboring bishops at least, and to report afterwards to the synod. The penalty of disobedience to this canon is deposition. By the thirty-third canon, presbyters are forbidden to sell any Church property without the consent of their, bishops, and in like manner the bishops are forbidden to sell any Church lands without the knowledge of their synod or presbyters.
Passing to Italy, we find that in A.D. 483, the clergy being assembled in St. Peter's upon the death of pope Simplicius, Basilius, the patrician and praefect of Rome, acting as vicegerent of Odoacer, the barbarian king, proclaimed the following edict: "That no one, under the penalty of anathema, should alienate any farm. buildings, or ornaments of the churches; that such alienation by any bishop present or future was null and void." This decree was declared invalid at the Council of Rome held by Symmachus (502), on the ground of its being contrary to the usages of the fathers, enacted on lay authority, and as not being ratified by the signature of any bishop at Rome. The same council, however, re-enacted its ordinances against the alienation of Church property. Previously to this, Leo the Great (447) had written to the bishops of Sicily and forbidden the alienation of Church property. Pope Gelasius (492-496) took action in the same direction.
In the Gallican Church, the earliest reference to alienation is to be found in a letter from pope Hilarv (A.D. 462) to the bishops of the provinces of Vienne, Lyons, Narbonne, and. the Maritime Alps, which prohibits the alienation of such Church lands as are neither waste nor unproductive, except with the consent of a council.
The Council of Agde (A.D. 506) contains several canons on alienation, and the first Council of Orleans (511) places all the immovable property of the Church in the power of the bishop. By the first Council of Clermont (535) all persons are excommunicated who obtain any Church property from kings. The twelfth canon of the third Council of Orleans (538) allows the recovery of Church property within thirty years, while the twenty-third canon renews the prohibition against the alienation of Church property by abbots, etc., without the written consent of the bishop. Canons against alienation were promulgated by the councils of Paris (the third), Narbonne, and the third, fourth, and ninth of Toledo. Similar provision were made in England by archbishop Theodore of Canterbury, and in the Exceptiones and the Penitentiale. The provisions of the civil law have been arranged as follows: Immovable property belonging to the Church cannot be alienated under any circumstances if it fall within the following classes:
(1) if it had been given by the emperor (2) if the thing to be alienated is the Church or monastery itself; (3) when the proposed transferee is the oeconomus or other Church officer, or a heretic; (4) when the property was given to the Church on the condition that it should not be alienated.
Subject to the above restrictions, immovable property may be alienated either for:
(1) debt, (2) by way of emphyteusis for a term, (3) in exchange with another Church, (4) if the transferee be the emperor, (5) or for the redemption of captives.
We also find laws directed against the alienation of Church property in Leges Visigothorum, bk. 5, ch. 3 (about A.D. 700); Lex Alamannorum, ch. 20; and Capitularia Regum Francorum (814). So it is found that the utmost precaution was taken lest, under the pretence of necessity or charity, any spoil or devastation should be made of the goods and revenues of the Church. See Bingham, Christ. Antiq. bk. 5, ch. vi, 6, 7; Smith, Dict. of Christ. Antiq. s.v.
In the United States the laws relating to the sale of Church property, especially real estate differ somewhat in the several states; but they all include a reference to the appropriate Church authority in the respective denominations, and generally require a special application to the civil court. (See Ecclesiastical Corporation).
