Question II

GRATIAN. PART I. But when the resources of a church are said to be placed under the power of bishops, the power of administering is to be understood, not of alienating or squandering. Hence it is read in the Council of Agde, [c. 7]:

Let bishops possess the cottages or bondservants of a church, as the ancient authority of the canons commands, or the vessels of a monastery, as things entrusted to a faithful steward, with the right of the church intact—that is, so that they presume neither to sell nor through any contracts to alienate the property from which the poor live. But if necessity has compelled that, for the necessity or utility of the church, something be alienated either in usufruct or by an indirect sale, let the cause for which it is necessary to sell first be approved before two or three bishops of the province or neighboring bishops, so that, after priestly examination has been held, the sale or transaction which is made may be confirmed by their subscription. A sale or transaction made otherwise will not be valid. But we permit less useful possessions to be furnished for use to strangers or clerics, with the right of the church preserved. [GRATIAN.] In book I of the Code, On the Most Sacred Churches, Emperor Justinian: with the cause of captivity evidently excepted.

Emperor Leo. For it is fitting that those things which pertain to the rights of the most blessed Church be venerably preserved untouched, just as the sacrosanct and religious Church itself. A new constitution. This law has been extended to every venerable place and every college which a pious action established, so that they may not be pledged and may be preserved in perpetuity among those immovable things which are assigned from the imperial house to the aforesaid places. Among other things an exception is made only to the extent that a debt presses. § 1. And if it has surplus vessels and cannot pay from elsewhere, lest any immovable thing be alienated or sold, let them, after proceedings have been held before the one to whom ordination of the place belongs, be sold to other venerable places, or, once melted down, to anyone. But one who receives these things apart from this observance shall be subject to the same penalties which were set forth concerning immovable property. But if the debt cannot be paid from movable things, first let immovable property be given as a special pledge, the creditor reckoning its fruits to himself both toward the principal and toward interest up to the fourth part of one percent. But if he refuses, then let the administrator of the house, after proceedings have been held without expense before the one by whom he is ordained, swear, with the greater part of those serving there consenting, both that the debt is pressing and that it cannot be paid from movable things. When this has followed, for twenty days let it be publicly known that the property of the church is for sale, so that it may be given to the one offering more, with the price by every means being given for the debt. Otherwise the property is not granted to the buyer, and let this be inscribed: that nothing has been done in this matter to the harm of the divine house. If no buyer is found, let the property, strictly appraised, be given to the creditor in payment, a tenth part of the entire valuation being added to the price and the consent of the ordainer and of the greater part of those serving there being added. Nevertheless, let that property be moderate among the others, with regard given to its quality, quantity, and burden. And let that person be understood here as a creditor who proves that what he loaned proceeded to the utilities of the religious house. § 2. But just as alienation of the property of a church is forbidden, so it is prohibited that any sterile possession or one otherwise burdensome be given to it, as under the name of fiscal burdens. § 3. Likewise, an estate useless because of the burden of fiscal payments is alienated, with proceedings to be completed as above and the same oath furnished, namely, that it is alienated for no other cause except that the immunity of the same venerable house may be preserved. § 4. But they can also exchange with the prince for property greater or equal, if the commonwealth demands this, with a pragmatic form preceding concerning it. § 5. Likewise, they rightly exchange among themselves with the indemnity of each, evidently with the consent of those who are also mentioned above.

PART II. § 6. Perpetual emphyteusis is also permitted concerning this property if the matter is conducted in the presence of those to whom this is assigned by law, with those whose interest is involved swearing that from that contract nothing is done to the injury of the divine house, and with the customary rent of the property itself which existed when it was dedicated to divine right not being diminished except by a sixth part; or if it has been diminished by disaster, then, with the present rent being established, let it be given in emphyteusis. But if the property is indeed valuable yet furnishes little or no rent, it is to be carefully appraised, so that from this a just rent may be established. Only those things, however, are given in emphyteusis which appear suitable for this to the steward and the other governors. § 7. One who makes worse property of this kind which has been leased or received in emphyteusis, or has not paid the canon for two years, can be expelled, yet in such a way that he pays the rent for the whole time and repairs that in which he damaged the property, not to recover anything he expended under the name of improvement. § 8. But if the aforesaid houses possess any ruins which they cannot rebuild, let them be given in perpetual emphyteusis, with the emphyteuta to use the material of the house whose habitation has collapsed, so that the rent may be reduced by a third part from that which was collected while the habitations still stood; or, if he first builds, let half of the rents added there by appraisal be given to the religious house. § 9. But one who receives the aforementioned property, not by a gratuitous title of alienation, apart from the form of the law, shall indeed restore the property with every increase from the intervening time; but concerning what he gave, he shall have no action against the venerable place but against the one who alienated it. But a donee shall restore both the property with every appurtenance and as much again. A creditor also, once the pledged property has been restored, has no action on the loan. One who receives an emphyteusis shall fall from it and not recover what he gave; indeed, he shall immediately pay what he would have paid if he had contracted lawfully. § 10. But it is said better that actions of this kind are altogether to be denied to the receiver. In book I of the Code, On the Most Sacred Church, Emperor Leo: § 11. If the steward of a church foresees that it is expedient that temporary possession in usufruct of certain possessions and estates—urban or rural—pertaining to ecclesiastical right be furnished to anyone desiring it, let its term, which shall have been agreed between the two, or to the day of the life of the one who desires it, be sought; let the steward enter into and record agreements with him who has chosen this, by which both the time within which it was resolved that this be furnished is established and what each has received in exchange is manifest.

By furnishing the grace of a benefice of this kind, namely the usufruct of an ecclesiastical estate for a time, but after the established time and their agreement have ended, with the ownership returning to ecclesiastical dominion and right.] But when the period established between them has been completed, or at the time of his death, if this too was agreed, the one who, with a compact intervening, received possession of ecclesiastical property and the usufruct of other revenues for the sake of holding it shall leave to the church, together with the ownership of those estates, the immovable property, their tenant farmers, and bondservants, revenues not less than those of another quantity as great as what he had received. For unless the agreements were entered into under this condition, we decree that they too are not valid. § 1. A new constitution. This furnishing of use has a place in every religious house. When it has ended, let both properties come by full right to the aforesaid house, and let not even the property which is given in exchange be burdened with greater tribute. § 2. Under whatever other modes it is permitted, certain persons are forbidden to receive property of this kind, such as its steward and his relatives.

Likewise from the Council of Mettis. Let no one presume to make precarial grants from ecclesiastical property unless, to the extent that a suitable quality is given from his own property, they receive double from the property of the church, in the name only of those who gave it, if they wish to hold their own and ecclesiastical property in usufruct. But if they relinquish their own property at present, let each take threefold from ecclesiastical property in usufruct, in his own name only, because it is fitting for each so to treat it as an administrator of another's property, not as a giver of his own. § 1. The holy synod also decreed, and the imperial authority announces, that no one be compelled by any power to make a precarial grant from property dedicated to God and His saints, since reason and practice maintain that no one is compelled, against utility and reason, to make a benefice from his own property for one to whom he does not wish it. § 2. Nor shall any person presume to make exchanges of ecclesiastical property or bondservants without permission and royal consent.

[PALEA.

Likewise from the Council of Beauvais. Let precarial grants be renewed from five years to five years according to ancient custom and authority.]

[PALEA.

Likewise from the Council of Carthage. Concerning precarial grants which were made unreasonably by rulers of churches, and by which they bound themselves and their successors under a grave penalty so that their deeds could not be dissolved, we instruct that no successor be bound under the penalty of his predecessor, but that it be granted to his own providence that, if his predecessor unreasonably distributed property of the church, it be recalled by him to the right of the same church.]

Likewise from the Council of Pope Martin, [c. 16]. PART III. Let the bishop possess power over the property of the church, so that he may administer it to those having necessity with all reverence and fear of God. It is also fitting for him to participate in the things which are necessary, if nevertheless he or the brothers who are with him need anything, so that they may suffer necessity in no way, according to the holy Apostle, who says: “With food and covering, we are content with these.” But if the bishop wishes to usurp ecclesiastical property for his own desires, or gives power to brothers, sons, or any of his relatives so that through them the property of the church is secretly harmed, he ought to be answerable to the council. If otherwise, the bishop or the priests or deacons who are with him are to be accused because they gather for their own uses those things which come from revenue or from any act of the church, defraud the poor, and destroy them with hunger; these are to be corrected in accordance with what shall have been ordained by the holy council. PART IV. GRATIAN. But if, contrary to this prohibition, it happens that a bishop sells any of the church's property, it is decreed both that the property itself is to be restored to the church and that he himself is to be cast from his rank. Hence it is read in the same Council of Pope Martin, [c. 14]:

If any bishop, compelled by no necessity of ecclesiastical reasoning, has presumed to sell any ecclesiastical property in his clergy, or where perhaps there is no priest, let him be compelled to restore the property itself to his own church and, once heard and convicted, be cast down in the judgment of bishops; and as one guilty of theft or robbery, let him be deprived of his honor.