§ 157. Ownership of Church Property

In the question of the ownership of church property, one must distinguish the standpoint of church law from the standpoint of civil law, in order to arrive at a well-defined concept of that ownership.[1]

1. Church property is by its nature designated exclusively for the purposes of the Church, and accordingly it cannot be applied to any other purpose. In this it differs from ordinary property, which its possessor may use as he pleases. It cannot, therefore, be disposed of like private property, but only according to its established purpose. In this sense it may be said quite correctly that church property is the property (vlaština) of Christ, or of the poor, as we find it stated in various church documents—for by this is signified not ownership as such, but that to which this same property is designated. From this character of church property there arises for the Church a threefold right, namely: the right to administer and use this property according to its purpose; further, the right to supervise how those concerned carry out this administration of the same property, and whether they apply it to the prescribed ends; and finally, the right, in case the designated purpose can no longer be attained, or in case of urgent need, to apply this same property to another similar purpose, or to sell it. These rights constitute the content of ownership over church property. The same rights were exercised at the outset by the bishop within the district entrusted to him. But in the course of time, within every episcopal district, lesser subordinate churches and various local institutions arose, each possessing its own separate property, and as a result the earlier right had to change its form. The administration and use of the property in question passed to the respective church or local institution, which then became the possessor as such and the subject of ownership over the property that belonged to it. The right of oversight, however, remains with the bishop, as does the decision in the case when a need arises to sell something of that property. This is a duty for the bishop, arising from his position in the Church as chief pastor. In case of any injustice or violence on the part of any member of the Church with regard to church property, the Church has the right to brand this as sacrilege and to impose the penalty of excommunication from her communion, just as she has the right to subject her own ministers to the strictest spiritual penalties for any misappropriation of church property. Apart from these spiritual means, the Church possesses no other means at her disposal, whatever the harm done to her property.

II. Since through church property the Church must often come into contact with civil relations, it is important to know what position the state authority and civil law must adopt with regard to that property. The right and duty of the Church to use and administer church property according to its purpose are of such a nature that the Church, for this, has no need whatsoever of the participation of the state authority. Just as, in the case of ordinary property, the possessor concerned, as the owner of a thing, is sufficient unto himself to dispose of his property without need for the state authority to interfere therein, so it is likewise with church property. The Church disposes of that property by her own duty and by her own discretion, and asks nothing else of the state authority than that it concern itself with nothing in the matter; and accordingly, so long as the Church asks only this and nothing else, the state authority has no reason even to know of that property. Should the state authority, uninvited by the Church, interfere in her property affairs, or hinder her from applying church property to its designated purpose, this signifies that this same authority wishes to hinder the very worship of the Church, and there already begins a state of persecution. When the Church independently administers her own property, this becomes for the state a mere factual relation—a relation which, moreover, may also be a legal one, insofar as the members of the Church, if they have the right freely to profess their faith, likewise have the right that the property designated for that profession of their faith be respected also. From this it follows that when the state authority today, in its various laws, declares that church property must always be kept inviolate according to the purpose of the Church, it thereby expresses only what, by the very concept of a state governed by law and of the inviolability of everyone’s property in general, is self-evident; thereby it merely gives a new legal guarantee that it will, both for itself and for others, respect the inviolability of church property.

But from contact with third parties, ownership of church property inevitably enters the domain of civil law. This shows itself in three acts, namely: in the right to recover through the civil court some church good that someone has unlawfully appropriated to himself; further, in the right to compel, by civil court, one who refuses to fulfill some obligation toward the Church arising from a contract, a delivery, or a bequest; and finally, in this, that every change in the ownership of some church good is valid for the respective new owner as a civil title of acquisition. The Church cannot grant herself such rights, but can possess them only if she is recognized within the state as a juridical person with the right of inheritance. This question falls within the exclusive competence of positive civil law, nor does the Church have the power to compel the state authority to this, which acts in the matter according to its own particular discretion. For the rest, every Christian state authority not only recognizes of itself these rights of the Church, but considers it, by its own Christian character, a duty to protect these same rights of the Church by every lawful means. Nor does even a non-Christian state authority deny these rights to the Church, so long as that authority grants to its Christian subjects the free profession of their faith. When civil legal significance is recognized in church property, then at once the same legal protection is extended over that property that covers every private possession, and accordingly a violation of that church ownership is regarded as unlawful in exactly the same way as a violation of private ownership, by whomsoever, and for whatever non-ecclesiastical purpose, that violation may be committed.