USURPATION OF ECCLESIASTICAL PROPERTY. — This is the spoliation or unlawful appropriation of ecclesiastical property by private individuals or, as often happens on a large scale, by public authority. When carried out by the latter, it is also called confiscation or secularization of ecclesiastical property, or suppression of mortmain (v. ECCLESIASTICAL PROPERTY).
Usurpation denotes the action by which someone takes another’s property as his own, whether he acts through violence, fraud, or any other title or pretext, even if he does not hold the aforementioned goods with hostile intent. In canonical language, usurpers are not only those who take property away but also those who, in fact, hold or possess goods or rights usurped from others, having received them either mediately or immediately from the direct usurpers, under any title (donation, sale, inheritance, etc.). Consequently: 1) civil laws that regulate the administration of Church property are not legitimate and cannot produce effect unless tolerated by the Church (Council of Trent, sess. XXII, c. 11 de reform.); 2) civil authority cannot divert ecclesiastical property to other uses (cf. again the first proposition condemned by Wyclif: Denz-U, no. 596); 3) all spoliations, invasions, or confiscations of Church property, whether administrative or penal, are unjust. This is evident in the case of confiscation; less evident when it is concealed under the palliative of abolishing mortmain.
I. THE SO-CALLED PROPERTY OF MORTMAIN
Property held by the Church, monasteries, or other religious places has long been termed mortmain (dead hand) because, once acquired, the Church retains it more permanently than usual, not permitting alienation or allowing it only under certain strict conditions. Such property is thus withdrawn from ordinary commerce and is, in a sense, dead. To prevent the excessive accumulation of such immovable property, the civil authority in many states enacted laws requiring permission from the civil authority—sometimes for any acquisition by the Church, sometimes only for acquisitions above a certain value.It is certainly within the right of the state, by virtue of its eminent domain and for the common good, to enact laws regulating contracts, modes of acquisition, and other provisions concerning public order, provided that the right of property is not violated. However, the Church does not submit to this eminent domain of the state and cannot be deprived of its free and independent right to acquire property. Nor is it valid to argue that such property, withdrawn from commerce by its immobility, hinders the division of property and the free activity of citizens, or that mortmain property is poorly cultivated. The Church does not simply forbid alienation but only requires that it not be done by private authority of the beneficiary or administrator. Moreover, the usufruct of such property remains with the society and thus better serves the needs of both religious and civil society (the poor, churches, schools, apostolic works, support of the clergy, public assistance, etc.) than would any rapid transfer of property (v. ECCLESIASTICAL PATRIMONY). Even if, despite all this, the state were truly burdened by the immobility of Church property, the path remains open through a concordat, which the Church does not refuse.
Mortmain property is also criticized for the loss it causes to the public treasury, since such property is exempt from taxes due upon transfer of ownership. This issue is connected with the doctrine of the immunity (v.) of ecclesiastical property from civil tax laws. Here too the Church does not refuse agreements, especially concerning property that does not serve divine worship directly but only indirectly. Moreover, the beneficial effects that the state derives from Church property rightly compensate for any reduction in public revenue.
II. THE CRIME OF USURPATION OF ECCLESIASTICAL PROPERTY
The usurpation of ecclesiastical property is not only an injustice but, in canon law, is classified as a crime, whose gravity varies according to the quality of the property usurped as well as other constitutive elements of the offense. The usurpation of property or rights belonging to the Roman Church is punished with a latae sententiae excommunication reserved in a special way to the Apostolic See, to which is added, for clerics, deprivation of dignities, benefices, and pensions, and ineligibility for them (can. 2345). The Lateran Pacts of 11 Feb. 1929 contain (art. 28) a settlement of the spoliations that followed the occupation of 1870, but do not include absolution from incurred censures.The usurpation of other ecclesiastical property is punished with a simply reserved excommunication (can. 2346). If the usurper is a patron of the same church or property, he must be immediately deprived of the right of patronage. If he is a cleric, he must be deprived of any benefice, declared ineligible for any other, and suspended from the exercise of orders at the discretion of the Ordinary (ibid.). By ecclesiastical property is meant, in accordance with can. 1497 § 1, those goods belonging to all ecclesiastical moral persons, whether constituted as moral persons by divine ordinance or common law, or erected by formal decree of the competent superior for religious or charitable purposes. Pious foundations are also ecclesiastical property. Excluded, however, are goods belonging to the quasi-private patrimony of clerics or religious. For the crime to exist, it is required and sufficient that the matter be grave in relation to theft. To incur excommunication, it is not enough that the usurper (whoever he may be; the penalty is not excluded even in the case of a bishop) converts the goods to his own use, as in theft, but that he does so in an usurpatory, authoritative manner, as if they were his own. Thus, those who usurp such property as public authorities and dispose of it for public uses incur this excommunication. A private individual who, claiming a right of his own, converts to his own use any patrimonial right of the Church also incurs II. Those who purchase from usurpers or acquire by any other title (donation, inheritance, etc.) do not escape the excommunication, because they effectively occupy the goods as their own and convert them to their use (S. Penitenziaria, 14 Jan. 1920 and 13 Dec. 1923; Pius XI, const. 3, Unquam, 15 July 1924 and Edicto a Nobis, 30 Jan. 1933). This includes lessees of usurped lands. Also liable to the censure is one who prevents those entitled from receiving the fruits and revenues of ecclesiastical property.
Absolution from the simply reserved censure cannot be granted by the local confessor unless the guilty party has first made full restitution of the ecclesiastical property or removed the impediment to the perception of its fruits. If he cannot do so immediately, a serious promise suffices, and this condition must also be required by the confessor who absolves in urgent cases (can. 2254).
Since the matter is often public and reconciliation is frequently necessary, absolution given in the sacramental forum is often not sufficient; the intervention of the Ordinary or the Holy See is required. The latter has issued various instructions for effecting reconciliation with those who have committed the offense and cannot make full reparation (cf. the decrees cited above and also S. Penitenziaria, 3 Jan. 1906; V. also FUND FOR CULT).