§ 160. Privileges of Church Property

By the Edict of Milan in the year 313, freedom of religion was proclaimed in the Roman state, and at the same time it was ordained that all goods that had been taken from the Church during the persecutions should be restored to her.[1] Two years later a special law was issued in favor of the Church, ordaining that all movable and immovable goods that were church property should be free from every impost and tax.[2] By the law of the year 321, whereby Constantine the Great recognized the Church’s right to receive bequests by will,[3] the way was opened for the Church to acquire great and rich property. The example of Constantine in granting privileges to church property was followed by all the Greco-Roman emperors, except Julian (the Apostate) and a few other emperors who were under the influence of persons hostile to the Orthodox Church. From the complete exemption from paying every tax on her property, which Constantine had granted the Church, the Church herself renounced, wishing by her own contributions to assist also with the needs of the state. As a result of a law of Julian’s, that church goods should have no privilege whatever as against other owners in the state, the emperors Theodosius I (in the East) and Valentinian II (in the West) issued a new law, by which the former principle regarding church property was re-established, and it was ordained that the Church must be free from all the so-called munera sordida to which other owners were bound;[4] and the emperor Honorius declared church possessions free from every extraordinary tax (extraordinaria collatio) and prescribed a monetary penalty, and in case of persistence a penalty of banishment, for anyone who should dare in any way to violate the privileges granted to the Church with regard to her property.[5] Theodosius II confirmed Honorius’s law and himself exempted certain churches even from paying the regular tax.[6] The emperor Marcian added his own law to the earlier ones, by which there was to belong to the Church not only the independent administration of her own property, but also the supreme oversight over everything that anyone should bequeath in favor of some charitable institution.[7] The succeeding emperors, especially Leo and Anthemius, and likewise Zeno, taking note of this ordinance of Marcian’s, placed under the direct dependence of the Church both the property of all the various charitable institutions and the very administration of those same institutions.[8] All these laws on the privileges of church property were afterward codified by Justinian the Great, who for his own part also issued several similar laws.[9] Subsequent Byzantine legislation follows Justinian’s in everything. The iconoclast emperors deprived the Church for a time of the privileges granted her;[10] but the succeeding emperors re-established the former privileges and extended them even further.[11] Speaking of the acquisition of church property, we have mentioned several of these privileges, and of some we shall speak further later.

All the various privileges that the Church received from the Byzantine emperors with regard to her property were prompted by the interest of the state itself in this. Owing to the general inclination of the Orthodox people, both in earlier times and today alike, to leave in their wills considerable sums for the benefit of the church and for various pious purposes, the Church became the possessor of great goods, and thus had the means, as much to meet all the needs of her own worship and her own ministers, as likewise to satisfy the needs of the many poor, the infirm, widows, orphans, and so on. By this the Church relieved the state of the care of all this, and the state too, by affording the Church facilities to attain to ever greater wealth, and by freeing church property from those extraordinary burdens to which the private property of individuals was subject, thereby assisted the general social welfare and consequently acted in the interest of the good of the state itself.

In the course of time the Church began to lose these privileges of hers with regard to her property. On account of the excessive making-over, through wills or bequests, of enormous lands to the clergy and to various church confraternities, from which the state began to suffer harm, the acquisitions of the Church were placed under the control of the state authority, and in the thirteenth century various rulers in the West began to issue the so-called leges amortisationis, that is, that some donation or bequest to the church, or for some pious purpose (ad manum mortuam), might be permitted only up to a fixed sum and subject to the state authority.[12] From the West this passed also into the Orthodox states, and in the sixteenth century we find a similar law in Russia as well.[13] After various changes, now in a milder, now in a more decisive sense, these laws exist today in all states, either in fact or in principle.[14]

And the earlier laws on the full ownership of the Church over her property, and thus on the inviolability of church property, underwent in the course of time a change harmful to the Church. We mean here the so-called secularization of church goods (saecularisatio bonorum ecclesiae) by the state authority. The first traces of this secularization are already observed in the seventh century in the Frankish state; it then developed especially in the West under the influence of the Reformation in the sixteenth century and the centuries following down to our own.[15] In Russia church property felt chiefly the influence of this reform as early as the beginning of the eighteenth century.[16]

Of all those many former privileges the Church once enjoyed, today only a very small part remains to her. She must pay the state tax on her property entirely on an equal footing with other private owners. The right of the state, in case of need, to secularize church goods exists in principle in all states, just as, in the main, the laws of amortization also exist. The former right of asylum, which the state used to grant the Church, no longer exists anywhere today; nor does any state grant privileges of prescription with regard to church goods to the extent we have seen in Justinian’s legislation and in later legislation as well. All that the Church enjoys today with regard to her property is: the immunity of churches and church buildings,[17] exemption, at least in most states, from the house tax on those buildings designated for the residence of clergy holding permanent posts in the administrative hierarchy,[18] and the fact that every theft or violation of a thing belonging to church worship is regarded as sacrilege and is punished more severely.[19] In everything else regarding property, the Church is today regarded, in the respective states, as any other lawfully existing corporation. Of the state oversight to which the administration of church property is subject, we speak in the following paragraph.