RELIGIOUS ENCYCLOPEDIA
Property
The property of the nunneries, after their purpose had lapsed, was indeed absorbed by the State; and yet by favor of statutory enactments it not infrequently became appropriated to the use of the Church and education. Thus also the Evangelical Church continued to hold fast the pre-Reformation conception with respect to the qualified owners of church property. It is incorrect to represent this Church as holding the idea that the congregation is to be regarded as the authoritative owner: what the statements which are adduced to this effect from the Reformation period really say, is merely that the church property shall accrue to the benefit of the congregation (cf. O. Mejer, Lehrbuch des Kirchenrechts, Gottingen, 1869, p. 421, note; K. Rieker, Rechtliche Stellung der evangelischen Kirche, Leipsic, 1893, pp. 196 sqq.).
In opposition to the theory thus far considered, there now developed on the Roman Catholic side what had been formerly expressed only in the way of isolated views; namely, the opinion that the visible ecumenical Church, as represented by the pope, is the owner of the church property, and has made over their portions to the several ecclesiastical institutions only as usufruct: that it 4. Jesuitical can accordingly withdraw the same in
Theories, case the institution at issue should perish or degenerate. An opinion of this nature, which reflected the Jesuitical philosophy of the papal system, and has been also chiefly advocated by that persuasion, excluded not only the possibility that the property of extinct ecclesiastical endowments accrues to the State, but even attached a claim to property becoming subject to Protestant tenure. Equally to be rejected as contrary to judicial principles is the similarly erected theory of dominium successivum on the part of the Church ecumenical with respect to the property of the individual organization.
Territorialism (q.v.) claimed for the State the supreme power (summa potestas) on earth; and naturally, also the power of administration over the property of its subjects; that is, "eminent domain" (dominium eminens). The older territorialism, by adopting the formula that the incumbent of the State Church government is owner of the church property, effects the transition 5. Territo- to what at bottom is likewise consistrialism and ently the present territorial theory,
Collegial- which represents the State Church in ism. this very light (cf. Mejer, ut sup., p. 422, note 7; C. Meurer, Begriff und Eigenthiimer der heiligen Sachen, i. 331 sqq., Diisseldorf, 1885; Rieker, ut sup., pp. 324 sqq.). In like manner the exponents of the second system which is based upon natural right (collegialism) acknowledge jus eminens on the part of the State, nor in this respect do they deviate in their practical net results from those of territorialism. But in other respects they naturally lay more stress on the rights of the collegium; and they further consider, with implicit bearings of necessity involved therein, the congregation as disposer of the church property rights.
At first all ecclesiastical revenues, including those accruing from contributions, were turned into a diocesan fund, out of which, in Italy, the bishop,
the clergy, the church fabric, and the poor each
received one fourth. In Spain they made only
three portions: for bishop, clergy,
6. Distribu- church fabric, some other way of cartion and ing for the poor being devised. In
Adminis- Frankish lands, however, the unity of tration. administration (though not that of
property, which had ceased on account of the growth of country churches), continued intact until into the eighth century, but some particular incomes were divided. Later, as this collective system lapsed, the benefices grew up (see Benefice); likewise the bishop's particular income (mensa) and the church-fabric funds (see Fabrica Ecclesle) and endowments; while out of the quarta pauperum there arose the parochial charitable funds, or the poor were cared for by the aid of cloisters and other foundations. It was only in exceptional instances that church property affecting general ecclesiastical objects was administered under episcopal supervision; but the bishop's jurisdiction over church property resolved itself into a comprehensive right of visitation. In the main the matter continued to rest on this basis in later times. When the State does not proceed on the principles of territorialism, it can empower itself with no
other prerogatives with respect to the
7. The State property of ecclesiastical foundations, and Church than such as it holds in relation to the
Property, property of legal persons in general. In the case of all private property, the State exercises the right of corrective measures to confine the operation and use of such property within the sphere of public welfare. Likewise, the State is obliged and empowered to see to it that property intended for uses of public importance be not withdrawn from its rightful purpose. Both these theories apply to church property. They first come to light when church foundations were prohibited, or restricted by the State, which opposed the acquisition of property by Mortmain (q.v.). E. Sehling.
II. In the United States: 1. Attitude of the States to Church Property. The status of property within the United States that is devoted to the purposes of religion is based upon the unique relation of Church and State originating in the colonial period and developing through the period of national life. By the terms of the federal constitution ecclesiastical affairs in the several commonwealths are regarded as domestic relations, and as such are excluded from the jurisdiction of Congress and reserved to the several state governments. A number of endowments of both real and personal property had been created prior to the revolution and had received legal form by charters secured either directly from the British crown or from the provincial legislatures. After the revolution the validity of such endowments was recognized by the state courts. The policy of the states, however, toward the creation of new religious endowments was timid. There was a general fear of doing anything toward the re-creation of ecclesiastical establishments, and the state legislatures hesitated to invest religious bodies with any considerable capacity to hold property. The early statutes on this sub-
Property Prophecy