Usurping ecclesiastical property (Can. 2346)

The rest is clear from what has been said above. Canon 2346 VI. Si quis bona ecclesiastica cujuslibet generis sive mobilia sive immobilia, sive corporalia sive incorporalia, per se vel per alios in prosprio usus convertere et usurpare praesumpserit aut impedire ne eorumdem fructus seu reditus ab iis ad quos jure pertinent percipiantur, excommunicationi tamdiu sub- (If anyone shall presume, by himself or through others, to convert to his own use and to usurp ecclesiastical goods of any kind whatsoever, whether movable or immovable, corporeal or incorporeal, or to prevent their fruits or revenues from being received by those to whom they belong by right, let him lie under excommunication for so long) jaceat quamdiu bona ipsa integre restituerit, praedictum impedimentum removerit, ac deinde a Sede Apostolica absolutionem impetraverit. (let him lie under it until he has fully restored those goods, removed the aforesaid impediment, and thereafter obtained absolution from the Apostolic See.)

One who, with full knowledge of the crime and its penalty, converts ecclesiastical property of any sort to his own use, or prevents its revenues going to the persons to whom they belong, cannot obtain absolution, which must be asked of the Holy See, until he has made full restitution and removed the obstacle in the way of the revenues going to those who have a right to them. Canon 2351 VII. [Mortui ex duello aut ex vulnere inde relato privantur ecclesiastica sepultura nisi ante mortem aliqua dederint poenitentiae signa, ac praeterea] duellum perpetrantes aut simpliciter ad illud provocantes vel ipsum acceptantes vel quamlibet operam aut favorem praebentes, nec non de industria spectantes illudque permittentes vel quantum in ipsis est non prohibentes, cujuscumque dignitatis sint, subsunt ipso facto excommunicationi Sedi Apostolicae simpliciter reservatae. (Those who die from a duel, or from a wound received in it, are deprived of ecclesiastical burial unless before death they have given some signs of repentance; and besides, those who fight a duel, or simply challenge to one or accept one, or lend any help or favour whatsoever, as also those who deliberately look on and permit it, or, so far as in them lies, do not forbid it, of whatever dignity they may be, are ipso facto subject to excommunication.)

1. Euphemius owes 10,000 lire to the fabric of the parish church from a certain contract of sale legitimately made to him by the parish priest. The parish priest having died immediately, he did not pay the debt. But now, after ten years, he determines to pay the aforesaid debt, considering himself excommunicated.

It is asked: Whether Euphemius incurred excommunication?

R. Negatively. For Euphemius is not a usurper of ecclesiastical goods. Whence the S. C. C., Feb. 27, 1569, decreed: "Nor do those incur the excommunication of the Council (of Trent) who do not pay debts, although they can." Nor indeed can there be any difficulty in the Case from the fact that Euphemius thought that he had incurred excommunication. For our false opinion does not change the truth of the thing. Here there is no question of guilt, which depends on one's own conscience, but of penalty, which depends on the will of the legislator. Commentar. in C. Apostolicae Sedis n. 73, 74; I. M. 1202.

2. Robertinus bought from the usurping government a Convent of Religious. Then he sells it.

It is asked: Whether Robertinus incurred two excommunications?

R. Robertinus incurs only the Tridentine excommunication on account of the purchase from the state domain of the aforesaid Convent; but no excommunication on account of its alienation. For those incur the Tridentine excommunication to whom ecclesiastical goods come by purchase from usurpers. But only those incur excommunication on account of alienation who are legitimate administrators of ecclesiastical goods. Cf. Comment. in C. Apostolicae Sedis n. 73, 86; I. M. 1202, 1209.

3. Fructuosus bought from the government, which had usurped it, a rural fund of the church. He cultivates the fund and sells the fruits.

It is asked: 1.º Whether tenants cultivating the fund incur excommunication? - 2.º Whether the buyers of the aforesaid fruits incur excommunication?

R. To the 1st. Negatively. For the tenants are not usurpers of the fund, nor are they cooperators as regards the usurpation, nor do they in any way become participants in the usurped thing. Indeed, the tenants cultivating the fund seem to be excused even from the sin of cooperation, for their cooperation is not formal and proximate.

To the 2nd. Buyers of the aforesaid fruits incur the Tridentine excommunication if they buy them in their own species or nature, and if they buy them in a notable quantity, and not only that quantity which constitutes grave matter in theft. For it is a question of the censure of excommunication, which is borne only on account of graver and atrocious crimes. Trid., s. 25, C. 3, de R. But if the fruits of the fund are converted into a new species, e.g., from wheat bread is made, which is sold, from the wool of a flock cloth is made, which likewise is sold, etc., since through specification the buyer of the fund in the Case, according to more recent laws, does not acquire ownership of the new species, but the new species yields to the alien matter, the same thing would have to be said as in the preceding hypothesis. But since there is question of goods of the Church, which is still ruled by Common Law, by which through specification the ownership of the specified thing is acquired, if the new species cannot be reduced to the former and rude matter, Instit., l. 2, tit. 1, de Rerum divisione, § 25, Fructuosus then, usurping and destroying the fruits of the fund, sins and incurs excommunication by this new sin; but since he sells his own thing, the buyers neither sin nor incur excommunication. Cf. Comment. in C. Apostolicae Sedis n. 73; I. M. v. 1, 906; v. 2, n. 1202.

These things indeed seem to have to be said in the rigor of law and right. For from the Council of Trent, s. 22, C. 11, de R., anyone to whomsoever the goods of the Church and their fruits shall have come in any way is subjected to anathema. Nevertheless D'Annibale raises a doubt, Comment. in Const. Apost. Sed., ed. 4, n. 97, note 65, and, inclining to the more benign opinion, says: "Therefore do those also who buy the saleable fruits of estates from a usurper, and consequently those who buy from the buyers, and so thereafter, incur this excommunication? I would not dare to affirm it; but I prefer rather to say what Modestinus said about a certain Edict of D. Marcus: Although especially the words of the law have this meaning, nevertheless the mind of the legislator wills something else, L. 15, § Aliud de Accusat. tutor.; than, contrary to the mind of the legislator, Trid., s. 23, C. 3, de R., to fill all things with excommunications."

5. When certain ecclesiastical goods were being sold publicly under the hammer, three brothers, Lucius, Lucillus, and Lucinus, a priest, who had undivided patrimony, entered into counsel among themselves concerning buying goods of this sort. Lucius, the firstborn, gave a mandate to Lucillus that he buy those goods. But Lucinus, having a scruple in this matter, indeed consented to the purchase, but declared that he in no way wished to have a part in the ownership of these goods. Hence Lucillus, counsel having first been sought from Luciano, an advocate, bought the aforesaid goods with money of the common patrimony. Only Lucius and Lucillus retain the property of these goods undivided, with the obligation of paying Lucinus the interest of the third part of the whole sum of money which was necessary for buying those goods and which had been taken from the common patrimony. But Lucretius, the steward of the three aforesaid brothers, after the purchase was completed, assumes the administration of these goods.

It is asked: What to the Case?

R. Lucius and Lucillus incur the Tridentine excommunication as acquiring usurped goods of the Church. But Lucretius incurs excommunication since a right in usurped goods of the Church truly came to him, namely the right of administration from the cession and procuration made to him by the aforesaid brothers. For the Council of Trent, s. 22, C. 11, de R., bears excommunication against those presuming, by themselves or through others, to convert to their own uses and usurp ecclesiastical goods, and therefore against usurpers and those mandating usurpation; likewise against those to whom the aforesaid goods shall have come in any way, and therefore against those acquiring and retaining those goods in whatever way and from whomever they have acquired them; and not only against those to whom the goods themselves shall have come, but also against those to whom some right in the goods of the Church shall have come, as is the right of administration of those same goods. Finally, against clerics who shall have been the contrivers or consenters of a wicked fraud and usurpation of this sort. Hence it is also clear that Lucinus the priest did not incur excommunication, since he did not acquire the goods; nor indeed was he a contriver or consenter in the wicked fraud of usurpation, in the Case. For there is no question of usurpers and of usurpation, but of acquirers and of mere acquisition; and as regards mere acquisition, only acquirers incur excommunication, from the obvious text of the Council of Trent. The advocate, giving mere counsel, also by no means incurs excommunication, since no mention is made of one giving counsel, but only of one mandating usurpation and of a cleric who is a contriver of a fraud of this sort, or consenter, by positive and efficacious consent, in the same fraud or usurpation. I. M. 1202.

6. Seius hires for five years a mill which Gneus built on a certain field of the Capuchin Fathers, bought by him, but which had been usurped and sold by the Government. Likewise he hires for five years the field, which was entirely dry when it was possessed by the Capuchin Fathers and not planted with any trees. Gneus greatly increased the value of this field by inserting into it vines taken from his own vineyard. Does Seius incur excommunication?

R. Since there is question of ecclesiastical goods, judgment concerning them must be made from Canon Law and from Roman Law. Now Instit., l. 2, t. 1, de Rerum divisione, § 28 seqq., has these things: "Everything that is built on land yields to the land... If someone on another's land has built a house with his own material, the house becomes his whose the land is... If Titius has placed his own plant in the land of Maevius, the plant will be Maevius's, if only it has taken root." Therefore the mill and the vineyard are of the Church. But by hiring the mill and vineyard of the Church, without the Church's permission, goods of the Church come to him who hires them, against the prohibition of the Council of Trent, which condemns with anathema both the usurpers of goods of this sort and all those to whom these goods shall have come in any way. Hence, unless he is excused by invincible ignorance of law or fact, Seius incurs excommunication simply reserved to the Supreme Pontiff. M. E. v. 9, p. 2, p. 275; I. M. 1202.

7. Adauctus, without order of the Holy See, receives ecclesiastical estates in emphyteusis from the usurping Government. Besides, he emancipates estates in emphyteusis previously received from the Church. Moreover he redeems other estates assigned to various chaplaincies and benefices. Finally he redeems various censuses. Does Adauctus incur excommunication?

R. In the first case he incurs excommunication, because from the usurper there came to him the very right of useful ownership of things of the Church. He incurs excommunication in the second case, because from the same usurper there came to him the very right of full ownership, direct and useful, of ecclesiastical goods. He incurs excommunication in the third case; for he truly buys that part which the fisc attributes to itself, and he usurps that part which the fisc restores to him. Therefore things of the Church come to him and he retains them; and at the same time he retains the fruits which ought to be converted to the necessities of ministers. Nor will it profit that he pays annual or monthly money to the chaplains and beneficiaries, because one thing cannot be paid for another against the will of the creditor; and because this does not prevent him from retaining the goods, rights, and fruits of the Church. In the last case, whether he incurs excommunication can be deliberated, says D'Annib., Comment. in Const. Apost. Sed., ed. 4, n. 97, note 66. "For since all censuses are redeemable, he seems to use his own right. Let us see whether he redeems them 1.º from the churches themselves, or 2.º from the usurper, or from those who have succeeded into his place. If the first, it must be said that he does not even sin, provided that, if in redeeming them he has paid less than the received lot, he restores that to the churches. S. Poenit., June 1, 1869, ad 10. But if the second, if indeed he has redeemed under compulsion, the same, if I think anything, is the law; but if spontaneously, although he sins as regards intention, since he does not restore to the owner, nevertheless I do not think that he incurs excommunication, both because he rather pays what is not due, and because the money with which he redeems is his own, nor meanwhile does he affect the church with loss, to which it is prohibited to pay the canons." But Gennari, Consult., p. 1, Cons. 44, simply affirms it, if namely the matter is grave, that is, of the capital, not of the canon. His reason is that, by restoring the capital to the Government, someone cooperates in its usurpation and vindicates for himself a thing pertaining to the church; and because among the extraordinary faculties communicated by the Penitentiary to bishops on June 1, 1869, there was also this, of absolving from excommunication those "who redeemed censuses and ecclesiastical rights redeemable by their nature, provided that first they deliver to the Ordinary whatever they paid less of the capital sum."

But from the Letter of the S. Penitentiary directed to the bishops on Jan. 24, 1890, only those are admitted to composition who from the redemption of rights redeemable by their nature profited WITH DAMAGE TO THE CHURCH. And if the matter is not grave, namely if the value does not exceed 25 gold scudi, 225 lire, then there is no need of Pontifical permission, but the bishop himself can give it, for redeeming the canon, since they are not immovable goods or precious movable goods prohibited from being alienated by Canon Law without Apostolic Beneplacitum. I. M. 1202, 1209.

8. "Whether those are to be held to have incurred the censure inflicted by Chapter 11, session 22, de R., of the Council of Trent, who illicitly acquired ecclesiastical goods, movable or immovable, usurped by the Government, when the value of the same does not exceed the value of ecclesiastical goods which can be alienated without the Apostolic Beneplacitum; or at least to what amount approximately the value of ecclesiastical goods usurped by the Government and illicitly acquired must rise, so that those who acquired them are to be held bound by the Tridentine censure."

R. "Very Illustrious and Reverend Lord, as Brother. The Pro-Vicar General of Your Amplitude has asked from this Sacred Congregation of the Council how great the value of ecclesiastical goods must be so that one who acquires the same without any permission is bound by censures. Since nothing has been determined concerning this, approved authors are to be consulted, who, as is very well known, teach that censure is not incurred unless there is grave sin. I pray God that He grant Your Amplitude all prosperous things, I profess myself. - Rome, Aug. 13, 1898. -

As brother of Your same Amplitude,

A. Card. Di Pietro, Prefect. -

B. Archbishop of Nazianzus, Pro-Secretary. -

To the Most Reverend Archbishop of Udine."

9. Aurelius, without Apostolic Beneplacitum, sold goods which pertained to a lay chaplaincy. From the sale made he established from public securities a sum sufficient for the daily celebration of Mass, which was the only burden of that chaplaincy, no alms having been fixed by the testator. Aurelius remitted the sum to the Ordinary of the place, so that he and his heirs might be freed from that burden of conscience.

It is asked: 1.º Whether Aurelius incurred the Tridentine excommunication, or the excommunication of the Extravagant Ambitiosae? - 2.º Insofar as negatively, whether he acted rightly?

R. Since there is question of a lay chaplaincy, its goods are not ecclesiastical goods. Wherefore no excommunication is present in their alienation. Moreover, since Aurelius, in the Case, diligently provides for the certain fulfillment of that burden of celebrating Mass, there does not seem to be reason why he should be blamed. It is confirmed from the Response of the S. Penitentiary, Dec. 14, 1898: "Buyers of goods pertaining to merely lay pious causes, speaking generally, do not need composition, unless by reason of burdens imposed upon those same goods some right belongs to the Church." M. E. v. 10, p. 2, p. 267; D'Annib., ed. 3, p. 3, n. 71, 84.

10. "Whether Catholic workers of the goods of a church usurped by the Turks can enjoy the portion which falls to them from having worked such goods; and whether they can hide fruits, grains, etc., which fall to the usurping Turks, in order to hand them over to the parish priest who in reality is the owner, and to have as many Masses celebrated for the benefactor.

R. Affirmatively as regards the first part, and negatively as regards the second." S. C. de P. F., Apr. 18, 1757, Collect. n. 1615.

750. Things to be noted. - I. Some goods of the Church were plundered by the Government itself, others by private persons.

II. Pius VII entered into a convention on August 15, 1801, with Napoleon, First Consul, by which he freed the acquirers of ecclesiastical goods from restitution.

III. The Sacred Penitentiary, in a rescript to the Most Illustrious D. Bouvier, March 20, 1818, declared thus: The Sacred Penitentiary, by express apostolic authority, declares to the consulting petitioner that ecclesiastical goods occupied by the Government before the convention entered into in the year 1801 between the Holy See and the Gallican Government are in the full power of the acquirers.

IV. Pius VII directed a Brief to the Bishop of Poitiers on October 20, 1821, in which he declared that the concession of goods previously made by the Supreme Pontiff can be applied to all ecclesiastical goods previously usurped by the Government, whether it had already alienated them before the convention of the year 1801, or had not yet alienated them then.

751. Resolves. - 1. Those who usurped ecclesiastical goods by their own authority sinned gravely, and are still held to restitution; for they are thieves, nor has any condonation been made for them.

2. But those who occupied those goods with the civil law favoring them sinned, and were held to restitution before the convention of the year 1801, but not afterward, by the concession of the Supreme Pontiff.

3. Those who after this pact accepted goods of the Church not yet alienated, sinned against justice, and were obligated to restitution, because by force of the convention the concession had not been made except for goods already alienated ¹.

¹ This resolution seems, from the premises in the preceding number, to be understood of goods which someone acquired from the government after the year 1801 and before the Brief of the year 1821.

1193. IX. "If anyone, against the prescription of can. 120, has dared to drag before a lay judge... another Bishop (namely not his own Ordinary), even merely titular, or an Abbot or Prelate nullius, or one from among the major Superiors of religions of pontifical right, he contracts excommunication latae sententiae, simply reserved to the Apostolic See."¹

¹ Code, Can., 2341. - This censure is new, contained only implicitly in n. VII of the Bull Apostolicae Sedis.

Titius, the verger of a certain church, lets seats to the faithful for the parish priest. Caia had rented one of the principal seats, but she passed the summer season in distant regions. According to custom, other members of the faithful occupied Caia’s seat in her absence. Julia comes to Titius seeking a seat to be rented during the summer; he denied that any was vacant except Caia’s seat, which she could have, in Caia’s absence, upon payment of a fourth part of the whole annual price and without Julia’s name being put in place of Caia’s. Titius retained for himself the money paid by Julia as the fruit of his industry, as he says. But when the parish priest discovered Titius’s transaction by accident, he proposed the theological question whether he had acted justly. Hence it is asked:

1. What is a right which constitutes the object of commutative justice?

2. How are the fruits of a thing distinguished, and to whom and by what right do they belong?

3. What are ecclesiastical goods, and are the offerings of the faithful to be numbered among them?

4. What is to be said of the case?

1. What is a right which constitutes the object of commutative justice ?

A right is a moral power of having, doing, or exacting something.¹

1 Manual of Moral Theology, vol. i, p. 343.

2. How are the fruits of property distinguished, and to whom and by what right do they belong?

Fruits of property are natural, industrial, mixed, and civil. Natural fruits of the soil, for instance, due alone to its natural fertility, belong to the owner of the soil. Industrial fruits, due to man’s labor, belong to the laborer. Mixed, or partly natural, partly industrial, should be divided equitably between the laborer and the owner of the soil or other property which produces the fruits. Civil fruits, such as rent and interest, belong to the owner of the property rented or borrowed. These rules follow from the nature of the right of property, and so they belong to the natural law.²

2 The same work, pp. 374, 401.

3. What is ecclesiastical property, and are the offerings of the faithful ecclesiastical property?

Property which belongs to the Church, or to a religious corporation, or to a pious institute founded by ecclesiastical authority, is called ecclesiastical property. The private property of clerics is not ecclesiastical property. Whether the offerings of the faithful are ecclesiastical property or the private property of the clergy depends partly on the intention of the donors, partly on Church law, which for Britain and the United States of America is contained in the Second Council of Westminster, d. 8, according to the constitution of Leo XIII, Romanos Pontifices, May 8, 1881.³

3 The same work, p. 363.

4. The case. Titius, the verger of a certain church, let out the seats to the faithful for the parish priest. Caia hired one of the first, but as she was absent in the summer months her seat in her absence used to be given to others. Julia wanted to hire a seat for the summer months and Titius let to her Caia's on condition that Caia's name was not removed and that Julia paid what was equal to a fourth part of the annual rent of the seat. Titius kept this sum for himself as the fruit of his industry.

Titius has no right to the money, and he should hand it over to the parish priest. According to the Second Council of Westminster, bench rents form a part of the property of the Church, and so whatever Caia's seat brought in either from Caia herself, or from Julia, or from anybody else, was Church property, and could not be appropriated by Titius without sacrilege.