CANON LAW

ALIENATION OF ECCLESIASTICAL PROPERTY

REV. DEAR SIR,-Your reply in January number I. E. RECORD, to 'Parochus,' in regard to Alienation of Ecclesiastical Property, will give pause to many who were of opinion that the Code was the bearer of a message of freedom on this much vexed question of the Alienation of Ecclesiastical Property. At first sight the powers conceded to local authorities in Canon 1532 seem pretty generous. But, in the light of the decision of the S. Congregation of the Council, as published in the Acta of November last and quoted in your reply, the power of unloosing by alienation conferred in Canon 1532, merely eventuates in a binding obligation in the light of Canon 1531, § 3, which demands that the money obtained by alienation shall be invested 'caute tuto et utiliter in commodum ecclesiae.' In other words, the powers of alienation conferred on local authorities in the Code are only ad fructum,' i.e., in regard to whatever interest accrues from the investment, so that, if there be question of expending the principal, e.g., £500, even on the parish church, an indult must be obtained from the Holy See. And as most of the matters of alienation that come before the local authorities have reference to expending the principal on some work of a religious character, it would be just as easy to ask Rome to grant permission to alienate and expend as to expend alone. There might be some cases where a new investment might be profitable or necessary, but that number is comparatively small.

But the point on which I desire your opinion is whether in the light of our Irish custom there is really need of an Indult from Rome in the case you discussed in the January I. E. RECORD: sale of a small parochial farm of about £500 in value; the proceeds to be devoted to repairs of parish church and curate's house.

Now I have made enquiries from priests of whose knowledge, probity, and experience no doubt can exist; and they assure me that during the past forty years it has been the custom for local ecclesiastical authorities in this country to alienate ecclesiastical property of even greater value than £500 and to expend the proceeds on the church or parochial house, without any Indult from the Holy See at all. Might not the freedom obtained by that custom be now utilized as in the case submitted by 'Parochus.' I respectfully submit the following points :

1. Of the existence of the custom I think there can be no doubt.

2. It is a custom that is reasonable and has forty years behind it, as Canon 27 demands.

3. I say it is reasonable, and here I adopt your own definition of a reasonable custom. In the I. E. RECORD, October, 1916, discussing the question of selling of pews in churches, you wrote as follows:

'We see no reason, however, why a legitimate custom might not obviate altogether the necessity of recourse to the Bishop or the Holy See for the special form of alienation involved in the selling of pews. Indeed of the conditions necessary for lawful custom, the only one about the fulfilment of which any question can be raised in the present case is that of reason

ableness, and even in regard to this there is in reality, as we shall see, no difficulty. The description of this condition as given by canonists is altogether negative. Briefly it may be said that a custom is reasonable when it is neither opposed to the natural or positive divine law, nor is reprobated by ecclesiastical law as a corruption, nor notably interferes with authority in the maintenance of Church discipline.' And on further discussion you admit that the consent of Holy See or Bishop for alienation is not required by divine law. Also you state that customs contrary to alienation legislation were never reprobated as corruptions by ecclesiastical law. And you further admit that such customs against alienation legislation would not notably interfere with ecclesiastical authority; and, lastly, the Decree of Holy Office 1880 admitted the existence of such customs. 4. The Code in the Canons dealing with alienation contains no reprobating clause against customs, and Canon 5 makes special provision for them.

5. The reply of the Holy Office in 1880 abolished all pre-existing customs. But forty years have elapsed meanwhile, and Canon 27 looks on a forty-year-old custom as a respectable lodger not to be rudely evicted. FINIS.

We sympathize fully with our correspondent's complaint regarding the practical results of Canon 1531, § 3. In most cases the desire to alienate ecclesiastical property arises from the utility or necessity of expending the proceeds in some pious or religious work. It avails the local authorities very little, therefore, to be allowed to alienate, if at the same time they are forbidden to expend the proceeds of the alienation without the consent of the Holy See. Yet we fear that there is no way out of the impasse. The words of the Canon are clear; but those of the interpretation of the Congregation of the Council, which though not universally binding has yet considerable authority, are even clearer still. Let us repeat them: Special attention must be paid in our case to the clause of Canon 1531, § 3" the money derived from alienation must be invested carefully, safely and usefully for the benefit of the Church": that is to say, the money so derived cannot be immediately expended even for pious or necessary purposes, but must be conserved so as to bear interest; in order, therefore, that it be expended or consumed, even for the enlargement of a church, as has happened in the present case, there is need always of the permission of the Holy See or, in other words, of a dispensation in this obligation, which the law in the above Canon imposes clearly, explicitly, and without any exception.' 1

6

Let us now come directly to the point upon which ‘Finis' asks our views. There is not the slightest difficulty about admitting the reasonableness of a custom such as that postulated by him. We have the gravest doubts, however, whether or not such a custom ever really existed in this country. Certainly, during the three or four years which immediately preceded the publication of the Code, we ourselves have had personal knowledge of a few cases of alienation of property of even less value than £500, in which the Holy See was approached for permission. It is unnecessary,

1 Acta Ap. Sedis, November, 1919, p. 418.

however, to labour the point, because its solution will not affect our conclusion in the slightest. Granted even that such a custom existed, and that, in so far as it is in opposition to Canon 1531, § 3, it was a custom in the real sense of the term, yet it would have been abrogated by the Code. As our correspondent points out, it could have arisen only since 1880, and consequently could have been neither centennial nor immemorial; it was therefore unconditionally abrogated in accordance with Canon 5. The position of customs in existence at the time of the publication of the Code and in opposition to it is regulated by this canon, not by Canon 27 : the latter deals only with the rise of future customs.

Again, granted the existence of the custom, in so far as it is in opposition to Canon 1531, § 3, it can hardly be looked upon as a custom in the real sense of the term. In the regulations regarding alienation we must distinguish between two things: the prohibition to alienate; and the command to invest the proceedings in safe securities. In pre-Code days there was no prescription in regard to investment,1 and consequently there could have been no contrary custom. It is abundantly clear, we think, that, in a matter upon which there has been hitherto no legislation, a custom contra legem cannot have arisen. An appeal to such a custom to prevent the incidence of new legislation is, therefore, out of the question.

From all that has been said it follows that our correspondent's appeal to custom, to surmount some of the difficulties arising from Canon 1531, § 3, cannot be sustained.

THE PRIVILEGE REGARDING THE USE OF MEAT ON ONE OF TWO CONSECUTIVE days of ABSTINENCE

REV. DEAR SIR,-When two consecutive fast days occur, outside of Lent, we have the privilege of using meat at the principal meal on the second of these days. For the ordinary faithful Saturdays are not fast days in Advent. According to the constitutions of their Order a certain community of nuns are bound by a fast on one of these Saturdays. On this particular Saturday may the nuns avail of the privilege of using flesh meat at the principal meal?

In such circumstances may they generally avail of the privilege enjoyed by the ordinary faithful?

A reply at your convenience will oblige.

SACERDOS.

To be in a position to reply to this query we must examine the terms of the privilege to which our correspondent refers. The favour of being permitted the use of meat on one of two consecutive days of abstinence was first granted to the faithful of Scotland by an Apostolic Brief of Pope Pius X, published on 27th January, 1911. In the following year our Bishops asked to have this concession extended to Ireland; and on the 31st June,

1 It is true, indeed, that there was a regulation in regard to investment in an Instruction of the Propaganda given to the Bishops of Cilicia in 1867. This, however, affected only those to whom it was directed; as far as we are aware there was no general law on the matter.

1912, the Congregation of the Council acceded to the request, insisting at the same time upon strict adherence to the terms of the original privilege (servata forma et tenore ennuciatae apostolicae concessionis).1 The words of the Apostolic Brief, therefore, are of utmost importance for our present purpose; and hence we shall quote the dispositive portion of this document:

Wherefore by the mercy of the Omnipotent God and relying on the authority of the Blessed Apostles, Peter and Paul, according to the tenor of this present letter, we concede and grant for ever to all and each of the faithful of the kingdom of Scotland that, with the exclusion of Lent, on Saturdays of Quarter Tense, and on those Vigils which immediately precede or follow either Friday or another day of abstinence, they can freely and lawfully eat meat.2

Our correspondent implies that the Saturday in Advent is one on which the ordinary faithful are not bound to abstain; it is clear therefore that it does not come within the terms of this privilege. Moreover, we are of opinion that the purpose of the concession is to relax only the obligation of abstaining which arises from general law. Indications to this effect are to be found in the fact that the privilege was intended principally for workmen (operarii), that it mentioned days on which the obligation was imposed by general law and these only, and that in petitioning for its extension the Irish Bishops referred expressly to the prohibition of the common law.

A CASE OF RELIGIOUS POVERTY

There is a Convent of Sisters whose Rule has been approved by the Holy See. This Convent has not yet been 80 years in existence and therefore has no immemorial custom or one of 100 years' standing. During the years of its existence, the Convent has experienced the growth of a custom which seems directly opposed to the Rule if not to the New Code.

The Sisters' Rule says: If, with the Superior's permission, they receive any present from their relatives or others, it must be applied to the use of the Community and not to the particular use of the receiver.'

The contrary custom is this. Relatives and others sometimes make gifts of money-say from 10s. to £10-knowing that it will be applied to the particular use of the receiver and not to the use of the Community. These sums are given to the Sister that she may make presents to the children or to her friends, etc. These sums are not given by the Sister to the Bursar and are not entered in the Books of the House. The Sister takes these sums to the Rev. Mother, who keeps a large cupboard for the purpose of guarding them. In this cupboard there are as many little boxes as there are Sisters in the Community, each box bearing the name of a Sister. When then a Sister receives a money present, she gives it to the Rev. Mother, who puts it in that Sister's box. There it remains till some hawker turns up, selling pious objects, etc. The Sister goes then to

1 Cf. I. E. RECORD, September, 1912, Fourth Series, vol. xxxii. p. 309. 2 Acta Ap. Sedis, vol. iii. p. 58.

VOL. XV-17

the Rev. Mother for some or for all the money in her little box, and, with Rev. Mother's permission, which by custom is never refused, purchases things and gives them away as presents-purchasing and making presents of value of £5 or £10 sometimes. Rev. Mother has never regarded these money gifts to Sisters as the money of the Community, but as money given to the Sisters to be used by them individually for purpose of making presents to friends, etc. Rev. Mother does not like this custom, and asks the following questions:

1. Is the said custom, by the fact that it is not of 100 years' standing, abolished by Canon 593, which says that all the Religious are bound to order their lives according to the rules and constitutions of their Institute?

The words of the Sister's Rule, given above, seem to be directly opposed to the custom which has grown up.

2. Is the said custom a flat contradiction of Canon 594, § 2, since there does not seem (1) to be incorporation in the goods of the House, and (2) the the Rev. Mother's cupboard can hardly be called the common safe?

3. Granting, for argument sake, that this custom is what canonists call' Imperfect Peculium,' is it

(a) Abolished by the Code on the ground of not being immemorial or of 100 years' standing?

(b) Could it be abolished by Rev. Mother on the grounds that Canon 593 tells her that she and the Sisters are bound to keep their rulesparticularly since her Convent is well able, out of Community goods, to supply all the legitimate wants of the Sisters, even to letting them make becoming presents, if necessary?

(c) Is the Rev. Mother even bound in conscience to abolish this custom, so opposed to common life and the spirit of poverty, when she knows that the Sisters will make no opposition to its abolition ?

(d) This custom being supposed to be unknown to the Ordinary, is Rev. Mother bound to refer the matter to him, or may she abolish it of her own accord, when she foresees no opposition on the part of the Sisters ?

(e) If the rules say nothing about Rev. Mother's powers to expend money, how far may she go in £ s. d. in making a present or letting a Sister make a present to be paid for out of Community money? May she expend several pounds sterling?

In regard to this custom, it may be added further that the Rev. Mother and her predecessors considered themselves free: (a) to refuse permission to a Sister to spend the money she had received; (b) to incorporate it in the money of the House; (c) to refuse permission to a Sister even to accept such money presents.

RELIGIOSUS.

The custom to which our correspondent refers is clearly of one' imperfect peculium.' Piat's definition of the latter and its distinction from 'perfect peculium' are typical. It must be prefaced,' he states,' that a twofold "peculium" is distinguished: one is called proper or perfect; the other improper or imperfect. The former is property with the faculty of disposing of it freely and independently of any other person, as of a thing belonging to oneself. The latter permits indeed the administration, possession, or detention and use, but with dependence on another, at whose