CHAPTER XI

THE TWILIGHT ZONE OF INHERENT RIGHTS

THE subject of inherent rights includes the claim of the Roman Church to be a legal or juristic personality in virtue of Divine Right, exclusive and unique, which the State in objective truth and duty should recognize as Divine and, therefore, as fundamental in the political order; 1 incidental to such juristic personality are the right of propaganda and the right to acquire property within the State. The claim to these rights means that, in the theory of the Church of Rome, its relations to and with the State are those of one sovereign power with another.

These rights which the Church of Rome claims as inherent, other associative bodies or corporations, religious as well as secular, acknowledge to be created by and received from the State. The Roman claims date far back in history, to the Imperial Edicts 2 of a. D. 313 and 321 when the Emperor Constantine after his conversion gave political recognition to the rights of the Church to propaganda and ownership of property with freedom of taxation. Prior to that time the Roman Empire would have laughed to scorn these claims of the

16 in principle, as a matter of objective duty, the State is bound to recognize the juridical rights of the (Roman) Church in all matters spiritual, whether purely so or of mixed character, and its judicial right to determine the character of matters of jurisdiction, in regard, namely, to their spiritual quality.” C. E., vol. xiv, p. 252 c. 2 Ibid., vol. iv, p. 299 c; vol. xii, pp. 466, 467 d.

3

Roman Church which we are now considering. Whether Constantine in his Imperial grant intended to recognize inherent rights, or to confer rights de novo upon the Church, is open to question. It was but natural that the Church should claim that the Imperial grants were given in recognition of inherent and sovereign rights (dominium eminens). So recent an authority as Pope Pius IX has expressly taught that the Roman Church is endowed with proper and perpetual rights of her own, conferred upon her by her Divine Founder, and that it does not appertain to the civil power to "define what are the rights of the (Roman) Church, and the limits within which she may exercise those rights." " By proposition XXVI of the Syllabus he condemned the claim that the Roman Church "has no innate and legitimate right of acquiring and possessing property." The Catholic Encyclopedia" affirms that all authorities. within the Church

"... show plainly that the principle of absolute ownership and free administration of ecclesiastical property has always been maintained . . . The (Roman) Church has proved that she takes for granted her dominion over the goods bestowed upon her by the charity of the faithful."

The properties of the Latin Church were, in theory, sacred things, and the sacred character once imparted

3 Supra, p. 6, note 10.

4 C. E., vol. xii, p. 467 d.

5 Syllabus, Proposition XIX, see appendix II, p. 295 C. E., vol. xii, p. 466 c, citing Encyclical Quanta Cura of Pius IX; Ibid., vol. iv, p. 50 c, citing the Bull Clericis laicos of Boniface VIII.

• Appendix II, p. 296.

7 Vol. xii, p. 466 d.

to them remained perpetually attached to them by the law of Church 8 and State in the Middle Ages.

"It is to this inalienability of all the possessions of the (Roman) Church, which like the 'hand of a dead man' never loosens its grip of what it once has clutched, that the prejudice against property held in 'mortmain' grew up in the thirteenth century."

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Thus the theory of the Roman Church requires immunity from interference by the State, both with the sources, the title and the disposition of its property.10

The result of this theory is to promote the accumulation of property. Furthermore, by the law of the Roman Church, each of the many institutions within it is the owner of the property with whose title it is vested, but always in subordination to the supreme jurisdiction of the Roman See. While the Roman See thus practically controls a specific property, the latter is not liable for the debts of the Church at large, but only for those of the subordinate corporation holding the title. If the subordinate corporation within the Church comes to an end, or revolts from its obedience, its property passes to the Church at large.11 The accumulation of landed estates and wealth by the Roman Church has formed one of the great causes of conflict with the State. The avarice of the State has often played a part in this conflict; but the chief cause is to

8 C. E., vol. xii, p. 467 b.

9 Ibid., p. 471 a. "Mortmain, dead-hand, or 'such a state of possession of land as makes it inalienable'. Ibid., vol. x, p.

579 a.

10 Ibid., vol. xii, p. 469 c, d.

11 Ibid., p. 471 d.

...

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be found in the acquisition by the Church of property which was, in the opinion of the State, out of all proportion to the services rendered by the Church, and destructive of economic equilibrium.

All the inherent claims and theories of the Church of Rome to juristic personality and to the rights of propaganda and property, as we have seen, are implicitly denied in the Constitution of the United States, and the law of American States gives to that Church only the same status that it gives to other religious corporations.12

No public question of the general limitation of the ownership of church property, or church exemption from taxation, has yet arisen in the United States. In the prodigious increase of national wealth and in the abundance of land, the perennial land question has not found a congenial ground. But the justification of freedom from taxation of the property of religious societies is already questioned and may at any time become a practical issue. In other countries exhaustive struggles have gone on between the Church of Rome and those whom its authorities designate as "the usurpers of church goods"; 18 e. g., the people of Italy,14 Germany,15 France,16 and Mexico. Space permits only a brief reference to Mexico, and this not to cast judgment in the deplorable Church controversy

12 Chapter X, p. 203.

13 C. E., vol. xii, p. 471 d.

13

14 Italy (1870), see C. E., vol. viii, p. 236 a.

15 Germany, the Kulturkampf (1871-1891), see C. E., vol. viii p. 703 d.

16 France, the Associations and Separation Laws (1905C. E., vol. vi, pp. 184–186.

), see

there, or to minimize the loss and suffering of the Roman Church, but to illustrate the logical results of its claims and doctrines. The Mexican situation is typical of the conflicts that may arise between the Roman Church and the modern State where the constitutional and inherent claims of that Church have been given recognition in the social and political development of the State. In Mexico the Roman Church has had as free a hand as a human institution could have in such social and political development. It came to Mexico with the support of the Government of Spain. It has been for much of the time since its arrival there, four centuries ago, the State Church of Mexico. It maintained the Spanish Inquisition until 1813. Its authorities admit that its wealth is large. Out of the population of some 15,200,000 it is said Roman Catholics number 15,000,000.17 Undoubtedly unscrupulous politicians in Mexico have preyed upon the Roman Church, frequently interfered with its plans and despoiled its possessions. With such evils religion must of necessity contend. In view of all this it is difficult to see what factor in the Mexican situation has morally a greater responsibility for the moral standards of the Mexican people than the Church of Rome. That Church has been from the beginning the undisputed custodian of the religious interests of the Mexican people. If, as the Church says, the sovereignty of that people is destroying religion and Mexican society is marching back to paganism, what but the Church of Rome is responsible? By its own admission ninety-five per cent. of the Mexican people claiming any religion are Roman Catholics. Yet today that 17 Supra, p. 92, note 18.