Donation (in Canon Law) - History of Ecclesiastical Donations

History of Ecclesiastical Donations

Even before the Edict of Milan (313) the Church was free to acquire property by donation either as a juridically recognized association (collegium) or as a society de facto tolerated (note that the right to acquire property by last will and testament dates only from 321 in the reign of Constantine I). Nevertheless, the Church was held to observe the pertinent civil legislation, though on this head it enjoyed certain privileges; thus, even before the traditio, or handing over, of the donation to a church or a religious institution, the latter acquired real rights to the same (L. 23, C. De sacrosanctis ecclesiis, I, 2). Moreover, the insinuatio or declaration of the gift before the public authority was required only for donations equivalent in value to 500 solidi (nearly twenty-six hundred dollars) or more, a privilege later on extended to all donations (L. 34, 36, C. De donationibus, VIII, 53). Finally, bishops, priests, and deacons yet under parental power were allowed to dispose freely, even in favour of the Church, of property acquired by them after ordination . The Franks, long quite unaccustomed to dispose of their property by will, were on the other hand generous in donations, especially cessiones post obitum, similar to the Roman law donations in view of death but carrying with them the renunciation on the donor's part of his right of revocation; other Frankish donations to the Church reserved the usufruct. The institution known as precaria ecclesiastica was quite favourable to the growth of donations. At the request of the donor the Church granted him the use of the donated object for five years, for his life, or even a use transferable to the heirs of the first occupant. Synods of this epoch assert to some extent the validity of pious donations even when the legal requisites had not been observed, though as a rule they were not omitted. Generally speaking, the consent of the civil authority (princeps) was not indispensable for the acquisition of property by religious corporations. The restrictions known as the "right of amortization" are of later date, and are the outcome of theories elaborated in the Middle Ages but carried to their logical issue in the modern civil legislation (of Continental countries) concerning biens de mainmorte, or property held by inalienable tenure, i.e. the property of religious corporations, they being perpetual. The Church does not accept such legislation; nevertheless the faithful may act accordingly in order to secure to their donations the protection of the law.