As promised, I have posted another section of the book The Canonical and Civil Status of Catholic Parishes in the United States (c)1926, by Fr. Charles Augustine, OSB, DD.
As stated before, please bear in mind that this was written about 10 years after the codification of Canon Law in 1917. Nonetheless, the historical significance and perspective, I think, is essential for a better understanding of what we are witnessing in the Church today, with the sexual abuse lawsuits, the bankruptcies, and the various schisms (such as St Stanislaus):
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3. Corporate Rights
1. The term corporation is derived from the Latin corpus, body. This body, par excellence, under the Romans law was the populus Romanus in its entirety.(56) Within this large public body minor bodies were allowed to form a union or association, which went by the name of collegium. One of the most ancient of these collegia was that of the priests, which was legally recognized by the Roman Republic as a public corporation.(57) This was a logical consequence of the intimate union existing between the civil and the religious power.
There were also sodalities or collegia templorum. Every corpus or collegium required for its existence a legislative act by virtue of which it was incorporated into the general body politic of the republic. In this legislative act approval was given to the statutes, which had to be submitted in each individual case to the senatus consultum or decree of the Senate. Whether a certain amount of autonomy was granted by this sanction appears doubtful to some writers, but is more generally affirmed. Be that as it may, all agree that, after the grant by the Senate, a corporation was entitled to hold meetings, to set up ordinances or resolutions by majority vote, to admit and exclude members, to determine fees and fines, to select committees, and to elect officers with the power of a quasi-magistrate. (58)
Another element is the right of ownership, which, at the beginning of the corporate development, caused some trouble on account of the public character of corporations. But the jurists borrowed the proprietary right from that inherent in the individual, in other words, from the ius privatum, and considered the universitas or collective unity of the members of a corporation as the subject and carrier of that material, but important, right of ownership. However, it should be noted that the Roman law, under the republic at least, did not identify the sum-total of the individuals' proprietary rights with the collective right of the corporate members as such. The law or the senatus consultum granted or attributed to the corporation so much of the ownership as seemed necessary to carry out its purpose or end. Therefore, the right of proprietorship attached to the corporation was sharply distinguished from the right of ownership inherent in each member as a citizen or individual. It is the corporate right of ownership which the law attributed to a corpus or collegium, expressed, especially for this purpose, as an universitas, which was represented by the syndicus, procurator or agent.
This conception of the corporation as an universitas led to another, viz., that of a juridical person (personae vice fungitur).(59) Whether we are thus compelled to introduce a fictio juris is disputed among learned writers.(6o) At any rate it requires some imagination to make one person out of a number of individuals, unless we simply state that the collective will of the corporation is the subject of rights, and in particular of proprietary rights.
It only remains to be added that each corpus or collegium was supposed to have a particular purpose, which was clearly defined in the statutes submitted to the senatus consultum or, later on, to the imperial constitution. It was the purpose, therefore, which distinguished one corporation from another.
According to Roman law, therefore, a corporation may be defined as a juridical person, lawfully organized for a definite purpose. The elements are: (a) a legal constitution, (b) a plurality of members ("tres faciunt collegium"),(61) and (c) a definite purpose.
2. The next question is whether a parish is a corporation in ecclesiastical and civil law. A parish is a part and parcel of the Church Catholic, which is represented in Holy Scripture as a visible society or institute for religious purposes.(62) An invisible, merely spiritual church is warranted neither by Scripture nor by tradition. The Church of Christ is indeed, a mystic body, but one which appears and acts like a body politic, and derives its existence, not from men, but from God, not from the State, but from its Founder, who laid down the essential features of this living organism.(68)
Consequently, its existence and duration depended on no senatus consultum or imperial constitution. The history of the persecutions shows that the Church was not a mere appendix to the State, but an entity distinct from, though not necessarily opposed to, the State.
When the Church entered as a peaceful subject into the ius publicum of the Roman Empire, the latter's first edict was that recognizing her right to hold property.(64) This property right was acknowledged as residing, not in the universal Church, but in the single churches, understood as juridical persons, and vindicated, therefore, to the "concilium" or "conventiculum" or "corpus" of the faithful who worshipped in that particular place or meeting house.(65) It is the "most holy," - the "venerable," the "religious" or "blessed" church of such and such a city or town that is endowed with property rights. No other notion of ownership is in keeping with the Justinian Code.
The Corpus iuris civilis promulgated by Justinian presupposes the property right as inherent in the individual or local church, subject to the bishop of the diocese.(66) It need not surprise us if we read of Christ, or an archangel, or a saint being the owner of this or that property,(67) for this invisible owner took, or was supposed to take, the place of a visible person. Justinian's legislation with regard to religious corporations was neither original nor progressive. It merely applied the old Roman notions of corporation to ecclesiastical institutions. Yet a difference is noticeable in Justinian's legislative acts, inasmuch as it would be next to impossible to find a law text which purports to be a creative or constituent act of foundation.
In other words, the imperial theologian nowhere makes the foundation or creation of an ecclesiastical corporation dependent on an imperial constitution or rescript. On the contrary, these religious institutions were simply inserted and adopted as they had previously existed, and were now recognized as juridical persons with a more or less fictitious feature. The above named fictitious ownership invested in Christ, or an angel, or a saint, had also a sacred, or, as some were pleased to call it, a transcendent character, as it insinuated the purpose of the property held.
The property held by the church was intended for the service of God. It was, therefore, not to be enjoyed by the community, or parish, or diocese, as primary usufructuary, but to be used as something sacred, viz., for the service of God, and shared by those who belonged to the so-called corporation only in as far as they partook of the altar. This naturally led to a gradual change in the aspect of the corporate character: it developed into an institute or permanent administrative organization with a definite purpose. At what time this notion
began to be fixed in the Roman law cannot be determined with certainty.(68)
The Canon Law further developed and gave precision to the juridical concept of an institute with a corporate character. Out of the idea of the universal Church, the mystic body of Christ and mother of all the faithful, sprang,(69) as so many offshoots, the smaller limbs or living units, viz., the individual churches, which were admitted in law as persons, and enjoyed the right of ownership together with other rights.(70)
Such appears to have been the view of the ancient sources of Canon Law and their commentators. Yet it would be difficult to prove that even at the height of the Roman-canonical literature an adequate distinction between the purely corporate notion and that of institution or pious foundation was elaborated, especially with regard to parishes. Canonists and legists started from the "universitas corporum" and applied it to various collective bodies. To cathedral and collegiate chapters they could unhesitatingly apply the formula: "Plurium corporum distantium rationabilium uno nomine eis deputata collectio." But a difficulty arose when a single parish was to be subsumed under this category. For by reason of the essentially hierarchic character of the Church, the parishioners could not be considered as members co-equal with the rector. In order to obviate this difficulty, some canonists maintained that the rector or priest had the same position and rights as the prelate in collegiate bodies. He could go to law for his parish and could sue and be sued, either personally or by proxy; only concerning alienation he was not entirely free on account of administrative measures.(71)
However, the Canon Law did not vindicate the right of ownership to the parish as such, as if the parishioners, taken collectively, were the owners of the church property. Being of the laity, these parishioners could neither administer nor dispose of ecclesiastical property. Nor is mention made anywhere in the law sources that the consent or advice of the parishioners was required for valid or licit acts permitted by law to the church authority. Furthermore, the very constitution, administration, and cessation of a parish was placed entirely into the hands of the superiors. If the parishioners were taxed or asked to contribute to the parish funds, this is similar to the State taxing its citizens, who have not on that account a claim on the public exchequer (fiscus).(72)
Where there was no complete separation of Church and State, the latter organized the parishioners per modum corporationis for the administration of the endowment, for the payment of taxes where such were required, and for the protection of accessory rights, such as advowson, if there were any. Otherwise the State acknowledged the parish as a canonically and locally organized religious institute administered by a lawful rector. The members of this religipus organization, i.e., those who live within a determined precinct, are served by the same rector and in the same church as to their spiritual wants, and contribute pro rata to the support of the church and rector.(73)
In the United States it was customary, though not everywhere, for the bishops to hold all the church property of the diocese in fee simple. This custom, however, was certainly opposed to the spirit, if not to the letter, of the law. For the freeholder could legally transfer the property to anyone he wished, and thus alienate the property from its true purpose. Heirs of the bishop could, where no other legal provision had been made, claim such property for their inheritance.
Not without good reason, therefore, did the Apostolic See abolish the fee simple method of holding church property, at the same time recommending the parish corporation, more especially in the form acknowledged by the statutes of the State of New York. Where the civil law did not admit such corporations, another form, viz., the corporation sole, was to be selected. Where this latter form was adopted, however, the bishop, in the administration of church property, was obliged to proceed according to Canon Law; that is to say, he had to hear those interested, and confer with the diocesan consultors, whose advice was absolutely necessary, and whose consent was of great importance.
What has the Code to say about parish corporations? But little, and that little widely dispersed.(74)
a) The pastor holds his parish in titulum, which means that he is the holder, not the owner, of the parish and of its property.(75) Therefore, the pastor, - be he an individual priest or an artificial person, such as a religious community, - is responsible for the parish and its proper administration. This is exactly what the older canonists, up to the Council of Trent and afterwards, held.
b) As a benefice, the parish is called a juridical entity (ens iuridicum), established by competent authority and consisting of a sacred office, together with the right to receive the revenues from the endowment attached to that office.(76) From the general title of Part V, Book III of the Code ("De Benefiiciis aliisque lnstitutis Ecclesiasticis non Collegialibus") we may conclude that a benefice or parish is not a collegiate or corporate body, but falls under the pious foundations (fundationes piae) mentioned in can. 1544. This is all the more probable, since parishes are not named among those non-collegiate ecclesiastical institutes which may be established as juridical persons by a decree of the local Ordinary.(77) Yet can. 99 shows that the Code attaches to benefices the notion of a moral or juridical person, though not of a collegiate person, and therefore does not regard them as corporations in the strict sense of the term. For a corporation in the strict sense requires at least three individuals.(78)
c) Such juridical persons or non-collegiate corporations are endowed with property rights, and, therefore, a parish is the owner of the church property invested in the benefice,(79) i.e., either in the bishop or the pastor.
======Notes======
56 See O. Gierke, Das deutsche Genossenschaftsrecht, 1881, Vol.III, p.77 ff.
57 See l.1, Dig. 48, 4;l.2, Dig. 47, 22; an exception to this general law seems to
have been the collegia tenuiorum.
58 Gierke, l.c. III, 8+ f.; Gaius in l.I, Dig. 3. 4
59 See l. 22., Dig. 46, l. 9, § 2, Dig. 4, 2; Gierke, l.c., III, 195.
60 Gierke, l.c., page 103, is strong for the fiction: "As part of the iuspublicum the universitas was a reality, but no person; as subject of the ius privatum the universitas was a person, but no reality." Other writers just as reasonably assume a collective will, centered in the unity, as represented by the lawful head of the corporation, or syndic.
61 Fr. 85, Dig. 50, 16, where Marcellus says: "Neratius Priscus tres facere existimat collegium, et hoc magis sequendum est."
62 See Rom. XII, 4 ff.; I Cor. XII, 4 ff.; Ephes. I, 22 f.; Col. I,24.
63 Gierke, l. c., III, 111.
64 Edicts of Milan 3I2-313;see Funk, Manual of Church History, 1913, 1, 47f.
65 This excludes the theory, still held by some, that there are two subjects of property right, one immediate, the other mediate.
66 See 11.15-17; 20; 22; 23, Cod. 1, 2; Nov. 67, cap. 1, 2; Aug. Knecht, System des Justinianischen Kirchenvermogensrechtes, 1905, 28 ff. (Stutz, Kirchenrechtl. Abhandlungen, n. 22).
67 The classical text is 1. 25, Cod. Just. 1, 2, of Oct. 20, 530; also Nov. 131, cap. 9, of March 18, 545.
68 See Knecht, l. c., pp. 6, 16 ff.
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69 An Anglo-Saxon writer says: "ealle we habbadh aenne heofonlicne faeder and ane gastlice moder, seo is ecclesia genamed, that is Godes cirice, and thy we sin gebrothra." (Gierke, I. c., II, 547).
70 Gierke, l. c., 11, 548 f.; 959; 111, 116.
71 Gierke, l. c., 111, 419 ff. and 272, where the sources are quoted.
72 Schulte, System des Allgemeinen Kathol. Kirckenrechts, 1856, page 479.
73 See U. Lampert, Die kirchlichen Stiftungen, Anstalten und Korperschaften, Zurich, 1912, page 37 ff.
74 S.C.C., July 29, 1911 (Ecclesiastical Review, 19II, Vol. 45, 585 f.).
75 Can. 451, § 1.
76 Can. 1409.
77 Can. 1489, § 1.
78 Can. 100, § 2.
79 Can. 1495, § 2; can. 1499, § 2.
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