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refer to one, that issued by the Propaganda for the United States in 1840. In that country the conditions in regard to the tenure of ecclesiastical property seem to be much the same as in our own : dioceses, parishes, and, in many cases, religious institutes are not regarded by civil law as juridical persons capable of acquiring and holding property. It would seem from the decree that most of the ecclesiastical property of the diocese, apart from that belonging to religious institutes, was vested civilly in the name of the Bishop. In regard to property vested in this way, substantially the regulation of the decree was that each Bishop should immediately make a will, and appoint one of his co-Bishops as the heir to all the ecclesiastical property. We shall quote just one rather significant sentence :
Illud autem duplicato, et aeque authentico chirographo seu exemplari omnino efficient, atque heredem bonorum omnium ecclesiasticorum ad pios usus sibi vel praedecessoribus suis, vel quibusvis aliis sive laicis sive clericis donatis quae ipsi actu possideant vel jus ad possidendum habeant, illum ex Coepiscopis suis Americanis, quem magis in Domino expedire judicaverint, constituent.
In regard to religious communities the decree distinguishes between those that were incorporated by the State and those that were not. In regard to the former, of course, no difficulties would be experienced from the civil law; in the case of the latter, however, it prescribed the appointment of three or four members of the community in whom the property was to be vested, but at the same time clearly insinuated that it stil remained really the property of the community itself and ecclesiastical."
From what has been said we think it must be clear that our glebes are ecclesiastical property, and that the fact of their being vested civilly in persons distinct from the persona moralis-diocese, parish, etc.—to which they really belong, is no argument to the contrary. Of course the persons in whom ecclesiastical property is vested may also have possessions of their own; and hence, in particular cases, it may be difficult to determine whether certain property is ecclesiastical or not. It is clear that trouble of this kind may much more easily. arise when there is only a single trustee; and this is one of the reasons on account of which several are usually employed. A more fundamental reason for this precaution,
A however, is to safeguard the property from usurpation by the civil heirs. Whenever a question arises as to whether certain property is really ecclesiastical or not, recourse must be had to various indications. Of course, if there is a trust specified on the deed of conveyance, there is no doubt about the matter. If there is not, the intention of the donors, the purpose for which the property has been used, the money by which it has been procured, and similar points must be considered.
In connexion with the civil tenure of ecclesiastical property in this country there are a few further points to which we should like to call attention; not, indeed, so much for our correspondent's benefit, as for that of our readers generally.
1 Coll. de Pop., vide n. 1627.
: Decret., n. 12.
Statute 422 of the last Synod of Maynooth describes the manner in which ecclesiastical property is to be civilly vested :
Ne ob legis defectum bona ecclesiastica in alienas manus transeant, curae erit Episcopo ut eorum tituli aut instrumenta accurate juxta legem civilem et in nomine trium aut quattuor Curatorum conficiantur. Hi vero Curatores sint Episcopus dioeceseos, Parochus aut alius sacerdos cui bona commissa fuerint, Vicarius Generalis aut alius vir prudens et vitae integritate conspicuus et in hujusmodi rebus versatus. Hi Curatores semel in anno convenire debent ut securitati bonorum praedictorum providere possint. Et si quis ex eorum numero e vivis discesserit, alium in ejus locum superstites subrogare teneantur.1
It will be noted that the Fathers of the Synod have no difficulty in describing property vested in the way indicated as ecclesiastical, and consequently in admitting the possibility of the twofold tenure.
Although this statute of itself imposes on Bishops no strict obligation, yet the natural law itself requires them and other administrators to safeguard the ecclesiastical property committed to their care, and therefore to adopt the measures suggested or others of a similar nature.
Statute 336 also deserves to be noted :-'Latifundium alicui paroeciae ex usu adnexum ne emat parochus, neque alio modo in usus quosvis privatos convertat.'3
This regulation is regarded as covering land or other property which is held in the following way: A parish priest or curate on appointment enters into a contract with the landlord at a yearly rent, pays the rent until the date of death or departure, and then the tenancy ceases ; similarly each successor in office enters into a contract of the same kind. In the
eyes of the Church it is the parish that is really the tenant in a case of this kind, and hence the prohibition. Really, unless we regard property held in this way as an endowment of the parish, no sufficient reason can be assigned for admitting each successive parish priest or curate to its enjoyment; the purpose of those who were originally concerned with the contract was to endow the parish, but, of course, it was impossible to have the parish as such formally recognized as tenant in civil law. When the possibility of the twofold tenure is recognized there seems to be no special difficulty in applying it to this particular case. The importance of this statute has diminished very considerably nowadays. It is to be presumed that the requirements of Statute 422 have been for the most part complied with, and, consequently, that at present ecclesiastical property is in very few cases held in the name of a single individual.
Apart altogether from this consideration, the working of the Land Purchase Acts would have very considerably lessened the number of such tenancies.
As our correspondent points out, when ecclesiastical property is held civilly in the names of three or four trustees, lawyers do not usually favour the mention of any trust on the face of the deed, in order to avoid difficulties in connexion with the granting of a title, should alienation afterwards become necessary. This reason ceases in the case of property which is likely to be permanently desirable, and hence, in such circumstances, it would seem better that a trust should be formally declared.
1 Acta et Decreta, p. 126.
3 l.c., p. 111.
In cases in which the regulations of the Maynooth Synod have not been complied with, and in which the property is vested in a single person, e.g., the parish priest, without any declaration of trust, it may be still possible to defeat any attempt of the holder or his heirs to divert the property to their private uses by falling back on an implied trust. The courts will certainly recognize the existence of such a trust, when churches are in question. In the case of land its proof will be much more difficult. The fact that land has been purchased by parochial money, that it has been held by several of the present occupant's predecessors in office, or considerations of a similar nature, usually suffice to secure the admission of a trust.
Another difficulty which arises in connexion with the civil tenure of ecclesiastical property is that in some cases there are no title deeds, or the title deeds have lapsed. In circumstances of this kind lawyers recommend ecclesiastical superiors to fall back on prescription. If, for example, a parish priest or curate has been in uninterrupted possession of such property for a period of twelve years, this will be sufficient to constitute him its civil owner, and he may then convey it to a number of trustees in accordance with the requirements of the Maynooth Statute already referred to.
There is a small point, finally, to which we should like to call our correspondent's attention. In Canon Law it is not the parish priest and the Bishop who are personae morales, but the parish and the diocese; the parish priest and the Bishop are merely the administrators of the juridical persons committed to their care.
2o. (a) In interpreting the laws of the Code on alienation and on other matters also, it is most important to keep in mind the principle set forth in Canon 6—that the new legislation, in so far as it agrees with the old, must be explained in accordance with the received interpretations of the latter. Now, authors who discussed this point, held that money temporarily lent or invested, for example, in an industrial or commercial society, with a view to be recalled or realized when the special need for which it was primarily intended arose, did not come within the the laws governing the alienation of ccclesiastical property, and that
, consequently, its recall or realization did not require the consent of the Holy See nor the other usual formalities. 1 The idea underlying this
1 Icard, Prael. Juris Canonici, vol. ii, p. 585: · Alii casus saepe eveniunt de quibus
dubitari potest, scilicet ;... 2° si pecunia collocata sit apud bancarios, vel in societatibus commercialibus, ut possit exinde retrahi venditions titulorum, si forte opus sit, et interea fructus annuos referat . . . In posteriori casu arbitramur pecuniam alienari posse, si reipsa reposita sit ad tempus in societate commerciali, non intentione illam servandi ut bonum stabile, sed ad usum, quando postulaverit necessitas. Omnes id certe admitterenť si pecunia ad usum destinata collocata fuerit in arca donec accidat occasio ea utendi, cur non pari ratione admittatur, si eadem pecunia fuerit ad tempus utiliter reposita in commercio, ut fructus interea producat. Cf. Bargilliat, Prael. Jur. Can., n. 972.
teaching was that the money in such cases was not really converted into other forms of property at all, that there was really no essential difference between it and money kept in hand to meet specific needs. We have never, indeed, seen in this connexion any mention of temporary investments in house property or land, but the same reason holds for them as for investments in industrial and commercial societies. Unless this theory be true, money donated for a specific purpose, as in the example mentioned by our correspondent, cannot be temporarily invested at all : such investment would divert it from the purpose for which the donors intended it. This really is another argument in its favour. From all this we consider that, when money is collected by a parish priest for the building of a church, and temporarily invested, even in house property or land, its realization is not subject to the regulations on alienation.
We can see no reason for the general conclusion which our correspondent seems inclined to deduce from this view—that it is only the alienation of capital bearing interest which requires all the formalities prescribed by the Code. As a matter of fact, there is no doubt that property which can scarcely be regarded as coming under this description, for example, churches, is subject to all the regulations governing alienation. Practically the only kinds of property excepted under the old legislation-and consequently under the new legislation also—are the fruits of the soil and perishable goods (quae servando servari non possunt); the disposal of these was regarded as an act of ordinary administration, and therefore within the competence of the ordinary administrator.
(6) The distinction drawn by our correspondent between the two classes of trees is quite correct; it is well known to canonists. The cutting and disposal of trees which are not fruit-bearing is quite within the competence of the ordinary administrator—the parish priest in the case of a parish. Ferraris explains very aptly why this is so in the following paragraph :
Quando arbores sunt primario destinatae ad caesionem, ut fructificent in ratione ligni, ut sunt arbores silvae caeduae, nemoris et hujusmodi, quae renascuntur et per incisionem sunt in fructu, et per earum incisionem fundus non deterioratur, sed melioratur, adeoque earum incisio et venditio non est prohibita, cum fructus non prohibeantur alienari, ex cit. Extravagant. Ambitiosae ipsos expresse excipiente his verbis. Praeterquam de fructibus.
(c) The only express regulation of the Code regarding change of investment is that of Canon 1539, § 2, which states that :
Administrators can change bonds to bearer, as they are called, into other bonds more or at least equally safe and fruitful ; every kind of commerce or trading, however, must be excluded, and the consent of the Ordinary, the Diocesan Council of Administration, and of others who may have an interest in the matter should be obtained.
1 Bibliotheca, vol. i. • Alienatio,' art. iv, n. 17.
From the fact that this is the only species of investment specifically dealt with, it follows that, where other forms are concerned, a change must be governed by the ordinary rules regarding alienation of ecclesiastical property ; change of investment of course involves alienation. As a matter of fact, Canon 1532, § 2, modifies the pre-existing discipline : the Congregation of the Council, in February, 1906, declared that, even when bonds to bearer were in question, the consent of the Holy See was necessary for a change of investment. 1
3o. There is no doubt that alienation between churches is governed by the ordinary rules. The same was true in pre-Code days too, the only thing exceptional being that neglect of the necessary formalities did not involve censure. The consent, therefore, of the Holy See, of the Ordinary, of the Diocesan Council of Administration, etc., would be required in accordance with the value of the property, as determined in Canon 1532.
4°. These priests are mistaken: it is forbidden to let glebe lands from year to year, as our correspondent correctly holds, without the permission prescribed in Canon 1541. The mistake has probably arisen from the fact that the old discipline required no special formalities for letting unless it was for a period exceeding three years.
LITURGY THE CONFRATERNITY OF THE CHILDREN OF MARY. THE
BLESSING OF PICTURES AND ENTHRONEMENT OF THE SACRED HEART. THE CONFRATERNITY OF THE HOLY ROSARY Rev. Dear Sir,--Kindly answer the following queries in the next issue of the I. E. RECORD :
1. To establish a 'Children of Mary’ Confraternity in a parish what permission is required ?
II. To bless or consecrate a private house with pictures of the Sacred Heart is episcopal permission required ?
III. In the case of a Sodality of the Holy Rosary, must the names of the members be enrolled with any house, i.e., of the Dominicans ?
I. A priest about to erect a Confraternity of the Children of Mary should first of all procure from his Bishop, in writing, permission to erect it
. In the case of a new, or of a little known Confraternity, it would be necessary to submit to the Bishop for his approval the statutes of the Confraternity, but the Confraternity of the Children of Mary is now so well known that
surarum publicarum vulgo titoli pubblici di crediti al portatore requiruntur
1 Jus Pianum, p. 332: ‘Pro alienatione et permutatione titulorum versolemnitates juris.'