USURPATION OF ECCLESIASTICAL PROPERTY. - It is the despoiling or misappropriation of ecclesiastical property by private individuals or even (as often happens on a large scale) by public authority. When it is 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 occupies another's thing as his own, whether he acts with violence, with fraud, or under any other title or pretext, even if he holds the aforesaid goods without a hostile intent. In canonical language, usurpers are not only those who take away, but also those who actually hold or possess goods or rights usurped by others, having received them mediately or immediately from the direct usurpers, under any title (donation, sale, inheritance, etc.). Consequently: 1) civil laws that regulate the administration of the Church's property are not legitimate; nor can they produce effect, except by the Church's tolerance (Council of Trent, sess. XXII, c. 11 de reform.); 2) the civil power cannot destine ecclesiastical property to other uses (cf. again the 1st proposition, condemned, of Wycliff: Denz-U., n. 596); 3) all despoilings, invasions or confiscations of the Church's property, whether administrative or penal, are unjust. All this is evident in the case of confiscation; less evident when it hides under the palliative of the abolition of mortmain.
I. SO-CALLED MORTMAIN PROPERTY
Property in the possession of the Church, of monasteries, of charitable or religious institutions, has for some time now been classified as mortmain, because the Church, once it has acquired properties, preserves them more permanently than is normal, not permitting their alienation or permitting it only under certain determined conditions. Such property is therefore withdrawn from ordinary commerce, and hence almost dead. So that the quantity of such immovable property might not grow too much, the civil power of many States promulgated laws requiring the permission of the civil authority, sometimes for any acquisition to be made by the Church, sometimes for an acquisition exceeding a determined sum.
It is certainly the right of the State, by virtue of its high dominion, for the common good, to promulgate for its own citizens laws regulating contracts, modes of acquisition, and to issue every other provision in matters of public order, saving nevertheless the right of property. But the Church does not intend to be subject to this high dominion of the State, and cannot be harmed in its free and independent right to acquire property. Nor is it of any avail to say that properties thus withdrawn from commerce by their immobility hinder the division of property and the free activity of citizens, or that mortmain properties are badly cultivated; because the Church does not simply forbid alienation, but only wills that it not be done by the private authority of the beneficiary or the administrator. Their usufruct, moreover, always remains within society, and thus serves better the needs of religious and civil society (the poor, churches, schools, works of the apostolate, support of the clergy, public assistance, etc.) than any rapid transfer of the properties (v. PATRIMONIO ECCLESIASTICO). And if, despite all this, a real burden were to come to the State from the immobility of the Church's properties, the way is always open by means of a concordat, from which the Church does not shrink.
Mortmain properties are also reproached with the harm to the public treasury, since such properties are free from taxes to be paid on the occasion of the transfer of ownership. This question is connected with the doctrine of the immunity (v.) of ecclesiastical properties from civil tax laws. Here too the Church does not shrink from agreements, especially when it is a matter of properties that do not serve immediately for divine worship, but only mediately. Besides, the good effects that derive to the State from the Church's properties justly compensate for that diminution of public revenue.
II. THE CRIME OF USURPATION OF B. AND
The usurpation of ecclesiastical property is not only an injustice, but in canon law it is still classified as a crime, which assumes greater or lesser gravity, besides on account of the other constitutive elements of law in general, also according to the quality of the property usurped. The usurpation of property or rights belonging to the Roman Church is punished with excommunication latiae sententiae reserved in a special manner to the Apostolic See, to which is added, for clerics, the deprivation of dignities, benefices and pensions, and incapacity for the same (can. 2345). The Lateran Pacts of 11 Feb. 1929 contain (art. 28) a settlement of the spoliations that followed the occupation of 1870, but they do not include absolution from the censures incurred.
The usurpation of other ecclesiastical property is punished with excommunication simpliciter reservata S. Sedi (can. 2346). If the usurper is a patron of the same church or of the property, he must be deprived immediately of the right of patronage. If he is a cleric, he must be deprived of any benefice, rendered incapable of any other benefice and suspended from the exercise of orders, at the discretion of the Ordinary (ibid.). Here by ecclesiastical property are meant those goods which, in accordance with can. 1497 § 1, belong to all ecclesiastical moral entities, whether they are constituted as moral persons by divine ordinance or by common law, or have been erected by formal decree of the competent superior for a religious or charitable purpose. Pious foundations too are ecclesiastical property. Not included, however, are the goods that belong to the private patrimony or quasi-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 the excommunication it is not enough that the usurper (whoever he may be; not even the bishop is excluded from the penalty in this case) convert those goods to his own use, as in theft, but that he convert them to his own use in a usurpatory manner, authoritatively, as if they were his own things. Therefore those who usurp the aforesaid goods as public authorities, and dispose of them for public uses, incur this excommunication. But the private person also incurs it who, claiming a right of his own, converts to his own use any patrimonial right of the Church. Those who buy from the usurpers or acquire by another title (donation, inheritance, etc.) do not escape the excommunication, because they occupy the goods in fact as if by right and convert them to their own use (S. Penitenzieria, 14 Jan. 1920 and 13 Dec. 1923; Pius XI, const. Si unquam, 15 July 1924 and Indice a nobis, 39 Jan. 1933). So too the tenants of usurped lands. He also incurs the censure who prevents those entitled from receiving the fruits and revenues of ecclesiastical property.
Absolution from the censure, simply reserved to the Holy See, cannot be granted unless the guilty party first restores the ecclesiastical property in full, or removes the impediment opposed to the receiving of the fruits from those goods. If the penitent cannot do so at once, a serious promise is also sufficient. And this condition must also be required by the confessor who absolves in urgent cases (can. 2254).
Since, moreover, the case is very often public, and not rarely a settlement is necessary, absolution given in the sacramental forum is often not enough, but the intervention of the Ordinary or of the Holy See is required. The latter has given various instructions for making a settlement with those who have committed the crime and can no longer make full reparation (cf. the decrees cited above and furthermore S. Penitenzieria, 3 Jan. 1906; see also FONDO PER IL CULTO etc.).
BBL.: for questions of public ecclesiastical law, cf. the relevant treatises. For moral questions, cf. the treatises de iustitia and de censuris. For the part on criminal law, cf. the relevant treatises, such as A. Boudinon, Biens d'Eglise et peines canoniques, Paris 1909, pp. 141, 148 ff.; E. Magnin, Biens d'Eglise, in DSoc, III, coll. 959 ff., especially 972-88; M. Piacentini, Manomorta (imposta di), in Nuovo Digesto ital., VIII, Turin 1939, pp. 101-15; P. Pelle, Le droit pénal de l'Eglise, Paris 1939, p. 313 ff.; E. Jombart, in Traité de droit canon. (edited by R. Naz), IV, ibid. 1949, n. 1214, p. 742 ff.; A. Depoorter, De usurpatione bonorum ecclesiasticorum, in Collat. Brug., 47 (1951), pp. 214-20. For the history of governmental usurpations of ecclesiastical property in Italy, cf. S.
Iacini, La polit. eccles. ital. da Villafranca a Porta Pia, Bari 1938; I. M. Larocca, Il patrim. degli Ordini relig. in Ital. Soppressione e incameramento (1848-73), Rome 1939; M. Roberti, La legisla. eccles. nel periodo napoleonico, in Chiesa e Stato, I, Milan 1939; pp. 255-332; P. S. Leicht, La legisla. eccles. liberale ital. (1848-1914), ibid., pp. 407-28; P. Pirri, Pio IX e Vittorio Emanuele II, etc., I, La lucizzazione dello Stato sardo (1848-56), Rome 1944; D. Masse, Il caso di coscienza del Risorgim. ital., Alba 1946; see also below under PATRIMONIO ECCLESIASTICO.
Pietro Palazzini