USURPATION OF ECCLESIASTICAL PROPERTY. — This is the stripping or unlawful appropriation of ecclesiastical property by private individuals or also (as often occurs on a large scale) by the public authorities. When carried out by the latter, it is also called confiscation or secularization of ecclesiastical property, or suppression of mortmain (v. BENI ECCLESIASTICI).
Usurpation denotes the action by which someone occupies another’s property as his own, whether he acts through violence, fraud, or any other title or pretext, even if, without hostile intent, he holds the aforementioned property. In canonical language, usurpers are not only those who take property away, but also those who actually hold or possess property or rights usurped by others, having received them directly or indirectly from the immediate usurpers, under any title whatsoever (donation, sale, inheritance, etc.). Consequently: 1) civil laws that order the administration of the Church’s property are not legitimate, nor can they produce any effect except through the toleration of the Church (Council of Trent, sess. XXII, c. 11 de reform.); 2) the civil power cannot assign ecclesiastical property to other uses (cf. also the 1st proposition of Wicliff, condemned: Denz-U., no. 596); 3) all stripping, invasions, or confiscations of the Church’s property, whether administrative or penal, are unjust. All this is evident in the case of confiscation; it is less evident when it is concealed beneath the palliative of abolishing mortmain.
I. THE SO-CALLED MORTMAIN PROPERTY
Property in the possession of the Church, monasteries, and more or less religious institutions has for some time now been termed mortmain, because the Church, once it has acquired property, preserves it more permanently than usual, not permitting its alienation, or permitting it only under certain specific conditions. Such property is therefore withdrawn from ordinary commerce, and thus is almost dead. In order to prevent the quantity of such immovable property from increasing excessively, the civil authority in many States enacted laws requiring the permission of the civil authority, sometimes for any acquisition to be made by the Church, and sometimes for acquisitions exceeding a specified sum.The State certainly has the right, by virtue of its eminent authority and for the common good, to enact for its citizens laws regulating contracts and the methods of acquisition, and to issue every other provision concerning public order, while nevertheless respecting the right of ownership. But the Church does not intend to submit to this eminent authority of the State, and cannot be harmed in her free and independent right to acquire property. Nor is it valid to say that property thus withdrawn from commerce, through its immobility, obstructs the division of property and the free activity of citizens, or that mortmain property is poorly cultivated; for the Church does not simply prohibit alienation, but only wishes it not to be carried out at the discretion of the beneficiary or administrator. Its usufruct, moreover, always remains within society, and thus serves the needs of religious and civil society (the poor, churches, schools, apostolic works, the support of the clergy, public assistance, etc.) better than any rapid transfer of property (v. PATRIMONIO ECCLESIASTICO). If, despite everything, the immobility of Church property should truly impose a burden on the State, the way is always open through a concordat, from which the Church does not shrink.
Mortmain property is also reproached with harming the public treasury, since such property is exempt from taxes payable on the occasion of the transfer of ownership. This question is connected with the doctrine of the immunity (v.) of ecclesiastical property from civil tax laws. Here too the Church does not shrink from agreements, especially when the property in question does not serve divine worship immediately, but only mediately. In any event, the beneficial effects accruing to the State from the Church’s property justly compensate for that reduction in public revenue.
USURPAZIONE DEI BENI ECCLESIASTICI - UTILE
II. THE OFFENSE OF USURPATION OF ECCLESIASTICAL GOODS
The u. of e. g. is not only an injustice, but in canon law it is also classified as an offense, which assumes greater or lesser gravity, not only according to the other elements constitutive of law in general, but also according to the nature of the goods usurped. The usurpation of goods or rights belonging to the Roman Church is punished by excommunication latiae sententiae specially reserved to the Apostolic See; for clerics there is added deprivation of dignities, benefices, and pensions, together with incapacity to hold them (can. 2345). The Lateran Pacts of 11 Feb. 1929 contain (art. 28) a settlement concerning the spoliations that followed the occupation of 1870, but they do not include absolution from the censures incurred.The usurpation of other ecclesiastical goods is punished by excommunication simpliciter reservata S. Sedi (can. 2346). If the usurper is the patron of the church or of the goods in question, he must immediately be deprived of the right of patronage. If he is a cleric, he must be deprived of every benefice, rendered incapable of holding any other benefice, and suspended from the exercise of orders, at the discretion of the Ordinary (ibid.). Here, ecclesiastical goods means those goods which, according to can. 1497 § 1, belong to all ecclesiastical moral entities, whether they have been constituted as a juridical person by divine ordering or by common law, or whether they have been erected by formal decree of the competent superior for a religious or charitable purpose. Pious foundations, too, are ecclesiastical goods. Goods belonging to the private patrimony, or quasi-patrimony, of clerics or religious are not included. For the offense to exist, it is required—and is sufficient—that the matter be grave in relation to theft. To incur excommunication, it is not enough for the usurper (whoever he may be; not even the bishop is excluded from the penalty in this case) to convert those goods to his own use, as in theft; he must convert them to his own use in a usurpatory and authoritative manner, as though they were his own property. Those who usurp the aforesaid goods as public authorities, and dispose of them for public uses, therefore incur this excommunication. But it is also incurred by a private individual who, claiming a right of his own, converts to his own use any patrimonial right of the Church. Those who buy from usurpers or acquire the goods under another title (donation, inheritance, etc.) do not escape excommunication, because they in fact take possession of the goods as though by right and convert them to their own use (S. Penitenzieria, 14 Jan. 1920 and 13 Dec. 1923; Pio XI, const. Si unquam, 15 July 1924 and Indice a nobis, 39 Jan. 1933). The same applies to lessees of usurped lands. Anyone who prevents those entitled to do so from receiving the fruits and revenues of ecclesiastical goods also incurs the censure.
Absolution from the censure simply reserved to the Holy See cannot be granted unless the guilty party first returns the ecclesiastical goods in full, or removes the impediment placed in the way of receiving the fruits of those goods. If the penitent cannot do this immediately, a serious promise is also sufficient. The confessor who grants absolution in urgent cases must likewise require this condition (can. 2254).
Since the case is very often public, and a settlement is not infrequently necessary, absolution granted in the sacramental forum is often insufficient; the intervention of the Ordinary or of the Holy See is required. The latter has issued various instructions for settling matters with those who have committed the offense and can no longer make complete restitution (cf. the decrees cited above and also S. Penitenzieria, 3 Jan. 1906; V. 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 criminal-law aspect, 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, cols. 959 ff., esp. 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, no. 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 goods 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; V. PATRIMONIO ECCLESIASTICO. Pietro Palazzini