Question III

GRATIAN. PART I. But that all rights are taken away by prescription of time is proved by the authority of the Council of Chalcedon, of Pope Gelasius, and of the Council of Toledo. The first is this:

We have decreed that in the individual churches rural parishes are to remain immovably with the bishops who hold them, especially if they have governed them without violence for thirty years. But if a dispute concerning them shall have arisen within thirty years, let those who shall say that they were injured on that account be permitted to initiate a contest before the provincial synod.

Likewise Gelasius, [letter II to the Sicilians, c. 1]. The authority of our predecessors has issued forth that bishops are to have power to govern the resources of the church, yet in such a way that they ought to distribute stipends to widows, wards, and the poor, as well as to clerics. We establish that this, which has hitherto been decreed, is to be granted to them; let the bishops claim the remainder for themselves, so that, as we said before, they can be generous toward pilgrims and captives. § 1. It also pleased us to add that if—which may it not be—the resources of a church, as well as dioceses, are possessed by any bishops, let them lawfully claim for themselves what the thirty-year law has concluded, because the authority of our sons the princes has also issued forth thus.

Likewise from the Fourth Council of Toledo, [c. 34]. Just as possession for thirty years takes away another’s diocese, so it does not remove the judicial district of a territory.

Likewise from the same, [c. 33]. Whatever bishop shall have possessed the diocese of another bishop for thirty years without any challenge, although according to the rule of law the diocese does not appear to be his, nevertheless an action to reclaim it is not to be admitted against him. But this applies within one province, and by no means outside it, lest, while a diocese is defended, the boundaries of provinces be confused. PART II. GRATIAN. Behold, by these authorities it is proved that the rights of possession and governance are taken away by prescription. But the same Gelasius testifies to the contrary, writing to Bishops Maximus and Eusebius:

Although it is contained in the ancient rules that parishes assigned to each church by the original arrangement can be torn away for no reason, lest through a most wicked custom, as the rashness of a bad example increases, universal confusion arise, nevertheless by our decrees dispatched not long ago we also commanded that all things which had been invaded in this manner be restored. But because the rashness of usurpers thinks that a law can be generated for itself if it adds obstinacy of retention to its crime, we desire that those things which we decreed between our brother and fellow bishop Constantius, bishop of the Camiscana church, and those sent by the pontiff of Ancona be fulfilled through you; we then prescribed the form to be followed in other examinations. Therefore we do not permit the status of parishes, which has endured with the firmness of perpetual age, to be changed by any presumption, because neither the negligence of pontiffs, nor a plea of time which is perhaps generated through carelessness, nor consent furnished through sloth, nor a precept obtained by surreptitious petition can tear apart a diocese once established, from which the devout people always assemble for regeneration and confirmation. It is also known to have been established long ago that territory does not make a diocese. GRATIAN. This is distinguished in several ways. There are certain dioceses which are distinguished by fixed boundaries; these can in no way be prescribed against. But others, which are not distinguished by fixed boundaries and concerning which a definite determination did not issue long ago, are taken away by prescription. Hence Pope Innocent says:

An examination was conducted between our aforesaid brothers, Fulgentius, bishop of Astigi, and Honorius, bishop of Córdoba, concerning the parish of a certain basilica, which one of them asserted to belong to Cellas and the other to Regina. And because until now a boundary action has been ventilated between both parties, the retention of which, however ancient, would bring no prejudice of law, therefore, lest our sentence be called further into doubt between them, the synodal decrees were read aloud when the canons had been produced. Their authority admonishes that greed ought to be restrained in such a way that no one usurps another’s boundaries. On this account it pleased us that men as inspectors are to be sent between the opposing parties, so that the perpetual dominion over the diocese of the possessor—if, however, the established boundary shall show by true signs that the basilica belongs to the church which has the right of retention—shall belong to that church. But if the lawful boundary does not enclose that basilica, and the plea of prescription for so long a time is proved, the appeal of the present bishop will not prevail, because the plea of thirty years imposes silence upon him. This is also commanded by the edicts of secular princes and decreed by the authority of the Roman pontiffs. But if, within the limits of thirty years, an unjust retention of the basilica outside the boundaries of another is found, it shall be restored without delay to the right of the bishop who reclaims it.

Likewise Gelasius to Bishop Justus. Let your belovedness take care, when the truth of all matters has been faithfully sought, that if a definite determination concerning the territories from which the aforesaid contention arose was issued long ago, it is to be preserved inviolate; otherwise, if nothing was ever established as having been delimited, then concerning the prescription of periods of time, if either party has confidence in it, let that party furnish an oath, yet in such a way that the party which is proved to have possessed until now is permitted to offer the oath. PART III. GRATIAN. It can also be distinguished in another way. Those things which anyone usurps by his own authority cannot be prescribed for, because he begins to possess them under no title; and in this case that authority of Gelasius is to be understood: “A plea of time which is perhaps generated through carelessness cannot tear apart a diocese once established.” It is to be understood if he began to possess it under no title but by usurpation alone. But if he began to possess it by the authority of a judge and the long custom of privileges, then the plea of time imposes silence on the claimant. Hence Pope Gelasius says:

It pleased this holy and great synod that property or privileges which pertain to the churches of God by long custom, and which were given in writing either by emperors of divine memory or by other worshipers of God and have been possessed by them for thirty years, are by no means to be withdrawn from the power of their prelates by any secular person through force or taken away by any devices; but let everything which is known to have been possessed by churches within the span of thirty years remain under the power and command of the prelate of the church. Therefore, whoever among secular persons shall act against the present determination is to be judged as sacrilegious; and until he shall correct himself and restore to the church its own privileges or property, let him be anathema. The same to the Bishops of Dardania.

Among other things he says: I hear that certain persons wish after five hundred years to overthrow the ordinances of Christ, although a thirty-year law of men cannot be broken. PART IV. GRATIAN. Likewise, if a controversy concerning ecclesiastical property has been initiated and a determination has followed, even if it is unjust, nevertheless, because he began to possess not by his own authority but by that of the person determining, the prescription of thirty years imposes silence upon the claimant, yet in such a way that the reckoning of prescription takes its beginning not from the time of the determination but from the death of the person determining. Hence it was enacted at the Council of Toledo, [IX, c. 8]:

If priests or ministers, while they appear to administer the governance of churches, are known to have determined anything concerning ecclesiastical property contrary to the most holy enactments of the Fathers, the order of reckoning will be established not from the day on which they decreed such things in writing but from the time when by dying they left such things determined. For the lifetime of one judging invalidly can nowhere pertain to the thirty-year period, because the status of the transactions did not take its beginning from the origin of equity. PART V. GRATIAN. Likewise, those things which are possessed as benefices, or which were possessed for a longer time because fear of hostilities intervened, cannot be prescribed for. Hence it was determined at the Council of Agde, [c. 59]:

Whatever clerics shall have possessed anything from the bounty of the church for however great a length of time, let those things not be called into their own right by prescription of time, provided it is evident that the property belonged to the church, lest bishops of a lengthy administration also appear either not to have been required to make precarial instruments when they were ordained or to be able to transfer resources retained for a long time into the right of their own property.

Likewise from the Council of Orléans, [I, c. 25]. If a bishop in consideration of humanity shall have granted little slaves, little vineyards, or little lands to clerics or monks, or to any persons, to be cultivated or held for a time, even if long spans of years are proved to have passed, let the church suffer no prejudice, nor let a prescription of secular law which might impede the church be pleaded against it.

Likewise from the Council of Seville, [II], at which Isidore was present, [c. 1]. PART VI. At the first proceeding, a petition of Theodulf, prelate of the church of Málaga, was presented to us, asserting that the ancient parish of the same city was once severed by the danger of military hostility, and that some part of it was retained by the churches of the cities of Astigi, Elvira, and Cabra. Concerning this matter it pleased us that every parish which anyone proved his church to have retained by ancient dominion before the military hostility should be restored to its privilege. For just as by worldly law ancient possession is restored by the right of postliminy to those whom barbarian severity carried away under the necessity of captivity when they return, so no differently will the church also receive back the parish which it held before, together with its property, whether it is possessed by other churches or has passed into the possession of anyone whatever. For prescription of time is not to be pleaded where necessity of hostilities has intervened.

Likewise Pope John [VIII] to Bishop Paul, serving as legate in Germany and Pannonia. Moreover, if perhaps a claim is made concerning the number of years, let him know that a fixed number has been appointed among Christians and those who are of one faith. But where the fury of pagans and unbelievers is in question, however much time may pass, it does not prejudice the right of churches, which, knowing nothing of bodily arms, patiently await only the Lord and their defender, whenever it shall please Him to show mercy. But if length of years impedes in such matters, God Himself is to be reproved, who after four hundred and thirty years freed the children of Israel from the harshest servitude of Pharaoh and the iron furnace; and the Redeemer Himself also, by Himself, after thousands of years rescued the human race from the enclosures of hell. PART VII. GRATIAN. Those dioceses which, while their own bishops were negligent, others recalled from heresy to the integrity of faith are also taken away by prescription. Hence it is read in the Ninth African Council, [c. 88]:

It pleased us that whoever neglects to gain for catholic unity the places pertaining to his see is to be approached by diligent neighboring bishops, so that he may not delay in doing this. But if within six months from the day of the approach he shall not have accomplished it, let those places pertain to him who shall have been able to gain them; yet in such a way that, if he to whom they appeared to pertain shall be able to prove that his negligence was chosen by the heretics so that they might remain there with impunity, and that his diligence was forestalled so that his more solicitous care might thereby be avoided, when the bishop-judges shall have learned this, let them restore the places to his see. GRATIAN. That prescription of long time by which Gelasius denies that the status of parishes can be changed can also be understood in another way. For long time, as is held from the laws, is understood as ten or twenty years. Therefore, by the authority of Gelasius and secular laws, this prescription of long time cannot be pleaded against churches. PART VIII. § 1. Some prescriptions were introduced out of disfavor toward the claimant and favor toward the possessor; others solely out of disfavor toward the claimant. For one who in good faith and under a just title shall have held the property of a person present for ten years, but that of an absent person for twenty years, will be protected by a perpetual defense, not only against others but also against creditors to whom that property had been pledged, and even against the true owner. But if by some event he shall have fallen from possession, he will be able effectively to vindicate the property even against the true owner. But if under no title, yet in good faith, he shall have possessed another’s property for thirty years, he will enjoy a similar protection. Good faith, however, is referred not to the course of the intermediate time but to the beginning of possession. For it is sufficient that at the beginning anyone commenced possession in good faith, even if in the intermediate time he shall have had knowledge that the property belonged to another. § 2. These prescriptions were introduced in favor of the possessor and out of disfavor toward the claimant, because the law favors those who possess in good faith and under a just title, or in good faith alone, but disfavors and punishes those who are negligent and idle concerning their own property. § 3. But if anyone shall have begun to possess another’s property in bad faith, after thirty years he will be protected by a defense against every claimant. But if by some event he shall have fallen from possession, he will have no action, because this prescription was introduced not in favor of a possessor in bad faith but solely out of disfavor toward one who neglects to pursue his own property. But if the property shall come to its creditor or owner, he will have the advantage of detention; if, however, it shall come to another person, the creditor or owner will be able to proceed against him, nor will the defense of the intermediate possessor profit him, because he did not have his basis of possession from that possessor. But if possession shall have come to them violently, the possessor in bad faith will receive the advantage of possession without distinction. § 4. These things are to be understood concerning prescriptions of ten, twenty, or thirty years, if the things are proved to have been possessed without interruption. But if possession shall have been interrupted by actual detention, a new thirty years for prescription will in all cases be counted from the day possession was recovered.

If it was interrupted through joinder of issue, forty years will be counted from the final day of the litigation. But if anyone obtains possession from one who was in a position to prescribe, he will be able to join the preceding time with the time of his own possession. § 5. But if the person whose property is being prescribed for shall be unable to join issue, either because of the absence, infancy, or madness of his adversary when that adversary has no guardian or curator, or because the adversary is established in great power, let him approach the provincial governor within the established periods, present a petition to him, bring this into complaint, and thus effect an interruption of time. But if he shall be unable to approach the governor, let him at least go to the bishop of the places or the defender of the city and hasten to manifest his will in writing. But if the governor, bishop, or defender shall be absent, let him be permitted to post it publicly where the possessor has his domicile, either with the subscriptions of public notaries or, if the city does not have public notaries, with the subscriptions of three witnesses; and let this suffice for every interruption of time, whether the prescription is of three years, of long time, or of thirty or forty years. § 6. These things concern prescriptions between private persons. But against religious places only a prescription of forty years runs. Hence in the Authentics: “Actions which a prescription of thirty years bars are barred in forty years if they belong to a religious place.” And in the Novels: “Neither of ten years nor of twenty years, etc.” But in the canons a church is permitted to prescribe against a church in thirty years, and a monastery against a church only in forty years. But if a private person shall have possessed first fruits and tithes either under a title or without a title, he will be able to be protected by no prescription of time. For things which cannot obtain effect in law from the beginning do not acquire validity through the course of time. § 7. Hence, if a free man is held as a slave for a long time, even if the courses of forty years shall have been exceeded, the rights of liberty will by no means be mutilated by length of time alone. § 8. Furthermore, as the church stands in relation to the commonwealth, first fruits and tithes have the character of civil public obligations. § 9. Moreover, public obligations cannot be prescribed against. Hence in book VII of the Code, title On the Prescription of Thirty or Forty Years, Emperor Anastasius:

“We command that those who have possessed any property through the continuous course of forty years without any lawful challenge are by no means to be removed from possession or ownership of the property; but that they are to be compelled to pay the public obligations, either the civil canon or any other public assessment imposed upon them, and that a prescription of any period pleaded against this part is not to be admitted.” [GRATIAN.] Although estates, whether of a private person or of a church, can be prescribed for, the revenue of first fruits and tithes cannot be taken away by prescription, even if any layman shall have obtained a rescript concerning them from the Roman Pontiff. § 1. For rescripts obtained contrary to written law, unless they are of such a kind that they profit some and harm no one, are judged to be of no force. § 2. Likewise: Tithes were set apart for priests and Levites by God’s command, so that those who are numbered in the Lord’s lot might live from the Lord’s lot. Therefore they cannot be conceded to laymen by anyone’s privilege, lest human authority bring prejudice upon divine commands. § 3. Hence Emperors Valentinian and Theodosius: “We command that all lands which were sold or alienated by any other compact in any province by tenants or emphyteutic lessees from imperial domains, the right of the commonwealth, or temples be restored by those who hold them wrongly and contrary to the laws, with no prescription of long time standing in the way, in such a manner that it is not even permitted to reclaim the price from the unjust purchasers.” PART IX. § 4. But concerning prescriptions of long time, it is found in the Authentics, collection VIII, constitution six: “Actions which otherwise a prescription of thirty, ten, or twenty years bars are barred in forty years if they belong to a religious place, while those which have their place by usucaption have prescription of four years.” PART X. [GRATIAN.] But only by prescription of thirty years and thereafter, from which prescription, however, the privileges of the Roman Church are excluded, which can be prescribed for only by a period of one hundred years. Hence John VIII writes to King Louis:

Let no one take support for resistance from the number of years, because the privileges which the holy Roman Church—which by God’s authorship we serve—received upon the firm rock of Peter’s stability are narrowed by no periods of time and prejudiced by no divisions of kingdoms. But the venerable Roman laws, promulgated divinely through the mouths of princes, admit prescription of its property only after one hundred years.