I. General History: (§ 1) Res Sacræ. Every Church requires external means of existence, the so-called temporalities, in order to maintain its institutional organism; and these it derives either from contributions or from other property at its command. Such property constitutes the patrimonium or peculium ecclesi. Of such things (res ecclesiastic), those which are designated and accordingly consecrated for use in the sanctuary service are distinguished as res sacræ, sanct, sacro-sanct, for the reason that according to Roman law they are withdrawn from trade (extra commercium): under canon law they do indeed stand in the light of property, but subject to the rule that they shall never be convertible in any way contrary to the sanctuary purpose to which they were once applied. Any crime committed against them bears its own stamp as such. To this category on the Protestant side belong church buildings, cemeteries, and church furniture; on the Roman Catholic side, the same as prior to the Reformation, the churches, the altars, the utensils accessory to the worship, especially to the Mass or Holy Communion; such as the chalice and paten, which are to be wrought of precious metals,--contingently of tin,--but not of wood or glass; the Eucharistic cruets (ampull); likewise the monstrance (ostensorium), for the reservation of the consecrated host, which on festival occasions is exposed for adoration; the censers (thuribula), crucifixes, images, lights, holy water basin, sprinkling brushes, banners, etc.; the sacred vestments; and bells.
When the Church was first recognized by the Roman State, it was already in possession of property. Constantine decreed (321) that the churches might inherit through testamentary provisions; and similar principles obtained in the German realms.
(§ 2). Res Religiosæ. The individual ecclesiastical foundations were regarded as titular possessors of this ecclesiastical estate, prior to the Reformation. In a natural sense, only man can be the possessor of rights; hence, also, of property rights. Legal construction, however, can think of an enduring purpose as property-holder: for instance, the purpose that at a specified place and by a specified succession of persons the cure of souls shall be constantly exercised through the administration of word and sacraments; or the purpose that certain persons shall live together according to the rule of a certain order to the glory of God (the medieval term for property devoted to this end is res religios, from religio, in the sense of "monastic life," "monastery"); or the purpose of healing the sick or caring for the poor; or that masses be read, or perpetual lamps be maintained, etc. The nature and course of the purpose in question are always defined. The legally effective arrangement by virtue of which this kind of ideal property-holder is qualified to stand as a so-called legal personality is called foundation or endowment; and in fact the like personalities themselves are then designated as foundations or endowments: church foundations, cloister endowments, hospital foundations, etc. If in the case of medieval donations and legacies the patron saint is named instead of the institution, this is only a popular expression. Again, where the idea occasionally expressed itself in earlier times that the subject of church property in the diocese was the metropolitan church, there is simply a product of the conditions whereby in the small Eastern episcopal provinces that church was the only parish church with full prerogatives.
(§ 3). Changes at the Reformation. This is not the place to take up in detail the obscure fancies that Christ, or the poor, are "owners of the Church's property"; however, the question is pertinent as to how the Reformation idea is related to the foregoing pre-Reformation views. The answer appears in the contemporary visitation minutes and church regulations, which latter nearly always contain a section with respect to church property. They both assume that the possessors of church property prior to the Reformation, namely the local parochial foundations, continue in possession, after the Reformation in so far as effective, of all the property rights to them belonging before the Reformation. They both strive to safeguard for them the prerogatives which belong to them under this construction, against the manifold injuries wherewith they were threatened on account of confusing Reformatory misconceptions. It is obvious that a good many aspects of church property before the Reformation ceased with the Reformation: above all, the fraternity foundations that were frequently attached to town churches, mass endowments, vicarages, endowments of perpetual lamps, etc., because their very object was lost. The property conditions in question might have been diverted to the State exchequer as bona vacantia; but in consequence of Luther's tract on "Spiritual Possessions" (Ordnung eines gemeinen Kastens, Rathschlag, wie die geistlichen Güter zu handeln sind, 1523) they were nevertheless, in so far as not simply applied to the actually needy pastoral estate, reserved frequently for distinctly new foundations, in order to serve as additional means for church purposes, education, care of the poor, etc., the so-called poor-boxes (Gotteskasten), and the like.
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, Göttingen, 1869, p. 421, note; K. Rieker, Rechtliche Stellung der evangelischen Kirche, Leipsic, 1893, pp. 196 sqq.).
(§ 4). Jesuitical Theories. 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 can accordingly withdraw the same in 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.
(§ 5). Territorialism and Collegialism. 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 to what at bottom is likewise consistently the present territorial theory, which represents the State Church in this very light (cf. Mejer, ut sup., p. 422, note 7; C. Meurer, Begriff und Eigenthümer der heiligen Sachen, i. 331 sqq., Düsseldorf, 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.
(§ 6). Distribution and Administration. 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; church fabric, some other way of caring for the poor being devised. In Frankish lands, however, the unity of 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 ECCLESIÆ) 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.
(§ 7). The State and Church Property. When the State does not proceed on the principles of territorialism, it can empower itself with no other prerogatives with respect to the property of ecclesiastical foundations, than such as it holds in relation to the 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.).
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- ject placed a very low limit upon the amount of property which might he held by any one religious organization. The public policy respecting the accumulation of property by religious bodies gradually became more liberal, and their legal facilities were more adequately defined. The manner in which property may now be devoted to the purposes of religion, the title by which such property is held, and the powers of religious societies or their trustees over it, depend in each state upon the statutory enactments and also upon the nature of the conveyance and the character and legal form of the church organization seeking to hold it. There is a general harmony in the policies of the several states in the matter of the taxation of church property. All of the states at the present time exempt property devoted exclusively to the purposes of religion from taxation, but not from special taxes levied in the form of assessments for local improvements. This exemption is not extended to property that is held by a religious body for investment and revenue and not actually used for purposes of religion. By statute in some jurisdictions the amount of land which may be held by religious corporations is still limited. Where a statute provides a limitation solely as to the quantity of land, these bodies are not limited as to the value of the property which they may hold. It depends upon the terms of the statute whether this limitation extends to unincorporated as well as to incorporated societies. Such a limitation applies only to single societies and not to religious denominations. It is the general rule applicable to all religious bodies that a conveyance of property in trust for the use of a certain church to certain trustees and their successors, invests their society with the legal title, and not with any beneficial interest; and the trustees have no power to transfer the title of the property from the body for whose use they hold it. The legal title must remain in them while they remain in office; and when they resign or are displaced, it will either remain in them or be in abeyance until their successors are chosen. In either case it is their duty to hold the property until some one is invested with authority to receive it.
2. Methods of Holding It: While the provisions for the holding of the property of religious societies or churches differ greatly in matters of detail, there are throughout the United States only five general methods in use: (1) where the churches themselves become corporations upon the execution and filing of articles of association or by securing charters in accordance with law as in Indiana and Pennsylvania; (2) where the churches are required to elect trustees, such trustees being constituted the corporation as in Maryland, Montana, and New Jersey; (3) where, as in Virginia and West Virginia, trustees are appointed by the courts for the churches in order to secure their property rights; (4) where, as in the Roman Catholic Church, the property is held by the bishop or archbishop of the diocese. An official thus holding church property may be regarded as a corporation sole, although in some of the states he would not be so regarded. Delaware has legislation prohibiting this method of holding church property. In certain states, however, as in Oregon, special legislation has been secured permitting this method. (5) Church property in the United States is still sometimes held by unincorporated churches. If they have no trustees it is doubtful whether lands can be granted by deed to them, but it would appear that they may receive both real and personal property by will. Every effort is made by the courts to protect the property rights of such churches.
3. American Rule of Specific Trusts: While all property devoted to the purposes of religion is, broadly speaking, trust property, to some property there are attached specific trusts. Property which by deed or by will of the donor, or by other instrument, is held for the express purpose of teaching some specific form of doctrine, or for any other religious object, can not be diverted from such purpose or object, so long as there are any persons willing to carry out the objects of the trust, or who, having a standing in court, are prepared to insist upon the execution of the same. For instance, a trust created to support the teaching of the Presbyterian system of doctrine, or for the maintenance of a home for the orphans of deceased Baptist ministers, can not be diverted to any other purposes. If, in the case of a given specific trust, the trustees fail, the courts, if applied to, will provide new trustees, and will carry into effect the intent of the donor or testator so far as the same can be ascertained.
4. Property and Church Divisions: (§ 1). Succession from Denomination. The rules regulating ecclesiastical property rights in cases of schism have been developed by the civil courts, both state and federal, in a series of notable cases, and may be summarized as follows: if a church acquires property when it is connected with a denomination as a subordinate branch of such denomination, it loses title to the property so acquired by severing its connection with the denomination. This rule is not to be interpreted, however, as meaning that no congregation can change any material part of its principles or practises without forfeiting its property. Individual members who, disapproving of the use of the property for the denominational purposes for which it was acquired voluntarily leave the society and enter into another, must be regarded as abandoning their rights and privileges in respect to such property. But a majority of a congregation excluded from the church building by a minority and holding its meetings in another place does not thereby secede where it forms no new congregation and maintains the same officers and is recognized as the original church by the council of the denomination. Nor do the members of a faction withdraw from the church by supporting only their own organization (holding separate services) at separate times under another pastor and attempting to discharge the original pastor. The mere fact that the members withdraw from the control of the supreme body of the denomination preserve identical theological belief and religious observances with those of the body from which they withdraw does not prevent them from losing title to the property.
(§ 2). Schism in Local Church. In case of a schism in a church which is in connection with and a constituent part of an ecclesiastical organization and which has a head invested by its constitution or recognized usage with supervisory and supreme control over the constituent parts to determine all questions producing schisms and division between the members and to recognize and decide what faction is in the right, the civil courts have laid down the following rule: The title to the property is in that part of the congregation which is acting in harmony with its own law, and with the ecclesiastical laws, usages, customs, and principles which were accepted among them before the dispute began. In such cases it is the duty of the civil court to decide in favor of that faction, whether a majority or a minority, which adheres to the doctrines maintained by the congregation. The only exception to this rule is the case of a usurpation of power in the governing body so revolutionary in its character as to result either in the creation of a new and essentially different organization or in such a radical change of the articles of faith as to constitute an essentially different religion.
(§ 3). Particular Cases. Where there has come to be a voluntary division in the denomination where the controlling ecclesiastical authority of the denomination allows each congregation to decide for itself to which branch of the division it will adhere, this question is to be determined according to the vote of the majority, and the minority can not therefore retain control of the property on the ground that such action of the majority constitutes a diversion. The particular church may also refuse to adhere to either branch and will not thereby lose its title to property which has been specifically conveyed to it. The rule as to chapels and other subordinate organizations founded in connection with a congregation or parish is that they will not be allowed to secede from the church by which they were established and carry with them the property acquired in part or in whole by the contributions of the parent church or its members, or that which persons not connected with either organization may have given for its support as an adjunct, to the parent church. In cases where property is purchased by a congregation or society to be held for its benefit free from the interference and control of the denomination at large, the ownership of the property is in the congregation or society and will remain with the majority in case a minority secedes and develops a separate organization. The fact that persons not members of the church or society contributed to the fund which was used by it in the payment of land sought to be impressed with a trust for charitable uses does not make them owners of the land itself, nor authorize them to impose restrictions on the right of alienation, the church not being a mere owner under a donor for charitable uses, though the grantor as to the balance of the price was a donor. When a church which has withdrawn from its denomination returns to its ecclesiastical connection it is not thereby reinstated in its former property rights.
(§ 4). Self-Governing Churches. Many American churches are strictly congregational in their polity, each being governed solely within itself either by a majority of its members or by such other local organization as it may have instituted for the purpose of ecclesiastical government, its property being held either by way of purchase or donation with no specific trust attached. In such cases where there is a schism which leads to a separation into distinct and conflicting bodies the rights of such bodies to the use of such property must be determined by the ordinary principles which form voluntary associations. If the majority rules, then the numerical majority of members must control the right to the use of the property. If, however, the power and control are vested in officers of the congregation, then those who adhere to the acknowledged organization by which the body is governed are entitled to the use of the property. The minority in choosing to separate into a distinct body and refusing to recognize the authority of the governing body can claim no rights in the property from the fact of their membership in the church or congregation. As there was no trust imposed upon the property when purchased or given, the court will not imply one for the purpose of expelling from its use those who by regular order or succession constitute the church merely because they have changed in some respects their religious views.
GEORGE JAMES BAYLES.