Canonical Restraint On Administrators of Parish Property

 By Duane L.C.M. Galles

The canons on temporal goods provide a comprehensive legal system for the administration of church property. This is an ancient system which goes back to the Roman law rules drawn up for the administration of minors’ estates in the Early Christian era. It relies heavily on Roman law rules and institutions, although in the 1983 Code of Canon Law, the law has been leavened by more recent developments in the Roman or civil law countries. The canons are intended to provide a universal framework for the care of church property. It is understood that they may need to be supplemented by regional canon law and by secular law in the various localities. And while it aims at the careful maintenance of church property and securing it free from secular control, universal law does not make provision for extensive lay involvement in church property administration. In some countries that would not be possible, given the level of development of the Church or of the People of God there, but such involvement is not unknown in the history of the Church’s legal system.

The pastor is required to act in accordance with the law and especially canons 1281-1288, and canon 1284 requires him to act with respect to church property like a bonus paterfamilias or bon père de famille, as the term appears in the French civil law. This is a term of art for what American law calls the “reasonable man” standard of conduct and so the law is clear that the pastor administers church property as a trust and not as his own. He is to keep the property secure and in good repair, well insured, the mortgage paid and the title clear. He must keep accurate financial records and file an annual report with the bishop. If required by diocesan law, he is to make a report in the required form to the parishioners (c. 1287). He is not to engage in litigation on behalf of the parish without first getting the permission of the bishop (c. 1288).

In matters of “ordinary” administration, the pastor has, within the law, wide discretion and is pretty much free to do as he pleases. For matters of extraordinary administration (the term is not yet precisely defined by the episcopal conference in the United States) he needs a faculty from the diocesan bishop (c. 1281). In order to sell or encumber property of the parish above a certain value (say $500,000, but diocesan or particular law could establish a lower sum) he needs like permission and, if the value is over $3 million, also the permission of the Holy See (c. 1292).

In the St. Stephen’s case in 1988 the Church’s supreme administrative court, the Apostolic Signatura, held that, in an administrative appeal or recourse, parishioners did not have standing even to complain about the renovation of their parish church and the destruction of its historic and cultural property. Later, in the San Rocco case (another St. Joseph Foundation case), the same court did hold that parishioners do have standing to complain about the suppression of their parish; but in that case the only illegality was that the diocesan bishop had not consulted with the presbyteral council or senate of priests of the diocese before decreeing the parish’s suppression. He was not required to obtain their consent to the suppression or follow their advice. He merely had to explain his plan and the rationale for it and provide them with a sufficient amount of information to make a judgment about it (cc. 127, 515). Hence, after the Signatura’s decision, the diocesan bishop simply went to the presbyteral council, made the requisite consultation and re-published his decree of suppression with a current date.

Canon 222 states that the faithful have the duty to provide what is needed for divine worship, the apostolate, the works of charity and the support of church ministers. But the canon does not require Christ’s faithful to aid and abet the destruction of the cultural property of their parish. In the case of an unwanted and harmful renovation or suppression, they might prudently decide to adjust downward their financial contribution to their parish and transfer the saving to another (and less harmful) work of charity or of the apostolate. The Church’s patrimonial laws, sad to say, do not provide many other remedies in renovation or suppression cases.

Other provisions of law provide some avenues of approach. A renovation is an administrative act and canon 50 says that, before setting out, the one performing it is to seek out the necessary information. Thus, some sort of informative or consultative process is needed. This will normally involve some consultation. This should give parishioners some opportunity to learn what is to be done as well as to express their views on the project. And while Christ’s faithful are bound to show proper reverence for their sacred pastors, canon 212 makes it clear that they are at liberty to make known to their pastors their wishes as well as their needs. Canon 51 requires that an administrative act be in writing and that it disclose in at least summary fashion the reasons for it. Implicit here is the requirement that a proposal have a just cause or rational basis, i.e., the end must be rationally related to means employed. One aggrieved by a decree or decision, under canons 1732-1739, has the right to have recourse to the hierarchical superior of the maker of the decree, who can amend, rescind, revoke or confirm it.

Recently in the Milwaukee cathedral case, which is still under review by the Holy See, it appears that the Congregation for Divine Worship held that the liturgical norm which requires the presbyterium or sanctuary to be distinct from the nave of a church building would not permit a particular church renovation plan to go forward as proposed. Should this ruling become generally applicable, it would have the practical effect of inhibiting many church renovation plans which proceed along the “theatre in the round” plan. In the meanwhile it will be seen that parishioners do not have a large armory of remedies in such cases.

This rather jejune set of current norms on restraints on parish property administrators is not cast in stone and it may develop and grow over time as Christ’s faithful-at least in some regions-take a more active role in the affairs of the Church. Indeed, the law has never been static in this area. In the nineteenth century, in fact, canon law showed considerable ability to change. And some possibilities for the future might be suggested if we look to the law of a bygone era.

The episcopal-lay relations in this era are usually recounted under the story of “trusteeism.” To some extent this struggle was expressed in the battles-sometimes quite acerbic-between the bishop and the lay corporate trustees who sometimes had civil ownership of Catholic Church property in the early nineteenth century. The Catholic bishops quickly realized that the American concept of the religious corporation was informed by Protestant ecclesiology and that it was inimical to the Church’s ecclesiology as well as to their duties with respect to church property in canon law. For example, no provision was made for the bishop’s duty of vigilance over parish property nor the necessary faculty from the bishop before performing acts of extraordinary administration nor the permission of the Holy See before alienating certain property. Resisting the Protestant and specifically Calvinist ethos of the American religious corporation, the bishops mounted a united and consistent campaign against what they called lay trusteeism and, by the 1860’s, the battle was virtually won.1

But in this clash there were casualties and some were juridical. Some ancient Catholic canonical institutions were lost in American particular canon law. The (lay) right of patronage was one of them. This was an ancient provision of Catholic canon law, which dated back to feudal times. In exchange for building or endowing a church, canon law gave the donor and his heirs a limited hereditary right to present a suitable cleric to staff the church and live off its benefice or income. Unless the patron’s choice was canonically unsuitable, the bishop was then required to institute the cleric to the benefice.2 In short, within limits, the lay patron of a parochial benefice could in effect designate the local parish priest. And so it happened that in cases where there were many laymen with ius patronatus or a right of patronage over parish churches, the diocesan bishop might have little discretion in such parochial appointments. In eighteenth-century France, in some dioceses, the bishop could freely appoint only ten to thirty percent of the parish priests.

This canon law had been received into the Spanish held parts of what is now the United States, in particular in New Orleans. By the terms of the Real Patronado the King of Spain received the right of patronage to all ecclesiastical benefices in Spanish America in exchange for his efforts for the discovery and colonization of these domains and his duty to support the clergy here. In some cases the royal right was transferred to private individuals, as in the case of Carlos de Almonester, who in gratitude for his rebuilding of New Orleans’ cathedral and for the endowment of the two canonries which formed the cathedral chapter there, received the right of patronage to these two ecclesiastical benefices. There was in principle no reason why the right of patronage could not have been vested in a group of laity and, therefore, no reason why a body of lay trustees might not have legitimately exercised it. In England at the dissolution of the monasteries a group of notables of Colyton, Devonshire, bought from the monastic spoils the advowson or right of presentation to their local parish and had themselves constituted a close corporation with perpetual succession to exercise the right of patronage to the parish, which they did for the next four hundred years. Except for the dissolution and the royal theft of the monastery’s property, this transaction was entirely in accord with canon law. Nevertheless, in 1829, at the first provincial council of Baltimore the American bishops declared that the right of patronage did not exist in the United States. Had this canonical institute not been outlawed but, on the contrary, been received into American particular canon law, the lay right of presentation would doubtless have helped mute the vision of the Catholic Church in America as unduly disciplined, alien or even sinister in Protestant eyes. At the same time the nearly unbridled discretion that American Catholic bishops enjoyed in clergy appointments would have been reduced.3

Although legally distinct from the ius patronatus, lay demands for the latter were often mixed with calls for a lay-dominated fabric council as well. Sometimes in fact it was the equivalent of the fabric council that claimed the right of presentation, thus blurring the legal distinction between the two canonical institutes. Not surprisingly, American bishops tended not to distinguish between the two and branded both demands for participation as manifestations of “trusteeism,” which was regarded as a quasi-heresy. The results could sometimes be comical. The fabric council had quite naturally been received into the particular canon law of Quebec and provision for it was expressly made in Quebec’s civil code, which had merely civilized or given form in Quebec civil law to this ancient canonical institute. It remains in Quebec to this day. Thus, when Quebecois left their native province and crossed into Maine, they were understandably surprised when their demand for their traditional fabric council was denounced by the bishop of Portland, Maine.4

The struggle by the clergy for some voice in diocesan affairs began early and lasted at least until the Third Plenary Council of Baltimore in 1884. The Catholics in the United States ceased to be ecclesiastically subject to a vicar apostolic in England in 1784 when the entire country became a prefecture apostolic. In 1790 with the consecration of John Carroll, the United States acquired its first Catholic bishop, the diocese of Baltimore, coterminous with the United States, having been erected the previous year. These early days were a time of unparalleled collegiality among the American Catholic clergy. For the most part the priests were former members of the Society of Jesus, which had been suppressed in 1774 by Pope Clement XIV. These former religious had been accustomed to ecclesiastical self-government and, through a Maryland civil corporation called the Select Body of the Clergy, they were accustomed to collegial management of the Maryland plantations and other church property which had belonged to the former Jesuits. They had even been conceded the privilege (Rome made it clear that this was a one-time only privilege) of electing America’s first bishop. But after Carroll’s election, paradise was lost. For the next century struggle ensued between the Catholic priests who cooperated in the munus pascendi or pastoral office but had no part with the bishop in the munus regendi or office of governance. The bishops saw their priests as pastors but not rulers of the flock; the priests thought they should have a share in both offices.5 Vatican II’s call for presbyteral councils to advise bishops is a belated recognition of the legitimacy of the priests’ aspirations.

The drive by American Catholic priests for a share in the Church’s governance crystallized in a couple of ways. There was a repeated demand for the introduction into the United States of chapters of canons, which had existed from the Middle Ages onward as a sort of diocesan “senate of priests.” The canons were cathedral clergy who celebrated its solemn liturgy and with the bishop had a share in the governance of the diocese. The canons had to be consulted by the diocesan bishop on all-important matters and in some matters like the alienation of church property he needed their prior consent before he could validly act. A canonry was, moreover, a benefice and, like other holders of ecclesiastical benefices, canons enjoyed life tenure. Normally their number was fixed as well and so the bishop faced a more or less fixed group of counselors with whom he needed to act in concert to rule his diocese. The power of the canon in this regard was similar to that of the United States Senate to advise and consent to certain official appointments and to the ratification of treaties.

New Orleans from its creation as a diocese in 1793 had a chapter of canons prior to its becoming part of the United States. Chapters of canons obviously introduced a real restriction on the power of the diocesan bishops and to avoid this restriction American bishops refused to introduce them into the United States. In their stead, they invented their own more tractable surrogate canons called consultors. The battle against the introduction of canons occupied the greater part of the nineteenth century. In a deft display of political adroitness at the Third Plenary Council of Baltimore in 1884, the American Catholic bishops beat back a joint campaign for canons mounted by America’s priests and the Holy See, which had become concerned about the unbridled discretion exercised by American Catholic bishops. Instead of canons, the American Catholic bishops were merely forced to accept the more pliable consultors, who differed markedly from canons. Consultors were appointed by the bishop for a three-year term and they were, moreover, removable ad nutum episcopi, at the whim of the bishop. By contrast, canons enjoyed life tenure and were removable only by judicial privation. Canons also enjoyed distinctive titles and dress, which gave them the appearance of clergy intermediate between the bishop and the simple priest. These honors tended to lend authority to their office.6

At the same time that they strove to participate in the governance of the Church, American Catholic priests also strove for some security of tenure. From the Middle Ages onward a parish had been a benefice and, as with other benefices, institution to the office gave its holder life tenure. To remove a cleric from his benefice the bishop needed to resort to judicial process and prove some canonical fault or delict. However, in the United States this rule of universal canon law was deemed not to apply. American parishes lacked the fixed endowment for the incumbent called for by the corpus juris canonici. Thus, they were deemed not to be benefices and so not canonical parishes. American Catholic priests were regarded as mere rectors of churches or “missionaries” removable, as were the consultors, ad nutum episcopi. The result was that American bishops could control the manner of living and the exercise of ministry by the clergy in a way that no European bishop would have dared.

The existence of such institutions as chapters of canons or fabric councils did not, I argue, impair the legitimate exercise of the diocesan bishop’s role as a successor of the apostles. Had they existed in some form during the last thirty years, the sad loss of much of our artistic and historic patrimony, not to mention the pointless expenditure of hundreds of millions of dollars, might have been avoided.