The Canon Law of Property.

The ecclesiastical courts could hardly claim so extensive a jurisdiction over property relations as they exercised over family relations and inheritance. 9 Yet their jurisdiction in property matters was by no means meager, and out of it came a substantial body of law.

To be sure, the canon law of property was influenced by contemporary secular law to a much greater extent than was the canon law of family relations. For one thing, it was never suggested that property -­even ecclesiastical property -- had a sacramental character. Material resources of the church were always treated as part of its "temporal" power. Moreover, in the context of feudal land tenure, ecclesiastical property rights were often closely interconnected with secular property rights. For example, a parish might "hold" its land and building "of" a bishopric or an abbey (ownership of parish churches by monasteries was very widespread throughout Europe from the twelfth century on), and the bishopric or abbey might "hold" the same land "of" a baron. Disputes over ground rent owed by the parish to the bishopric or abbey would usually be within the jurisdiction of ecclesiastical courts and would be

-237-

settled by canon law, whereas disputes over feudal dues and services owed by the bishopric or abbey to the baron would normally be within the jurisdiction of secular courts and would be settled by secular law although jurisdiction in the latter case might be a matter of contest between the

ecclesiastical and the secular courts.

Most church lands and buildings in the period from the late eleventh to the fifteenth centuries were held by a tenure known in English as "free alms" (in Norman French, frankalmoign; in Latin, libera elemosina). Typically, a donor (or several donors jointly) would make a gift to God and to a named ecclesiastical corporation, its officers and members: for example, "to God and to St. Wilfred of Dumfries Abbey and the Abbot Duncan and the monks of St. Wilfred." If the purpose was to build a church, or a hospital, or an educational institution, the gift might include not only land but also resources for construction and maintenance of the building and for carrying on its operations in the future. But the donor of land would often retain rights in it for himself and his heirs. In particular, he would often retain the right to "present" a new priest to the church to be built on the land, whenever the priestly office was vacant: such a right of patronage (advocatio, "advowson") was valuable property -- it gave power to nominate someone (perhaps a relative) to what might be a lucrative office.

Ecclesiastical property presented a sharp contrast with feudal property

-238

not only by virtue of its emancipation, in many instances, from feudal obligations but also by virtue of its corporate ecclesiastical character; that is, it was always the property of an ecclesiastical corporation, never of an individual person. Moreover, it was always committed to the purposes of the corporation. It was what in German is called Zweckvermugen ("property for a purpose"). According to canon law, it was required to be used for the purposes for which it was acquired; in that sense, it was impressed with a trust. The officers of the ecclesiastical corporation which owned the property_________________________________________________________

whether it was an abbey (monastic house) or a bishopric (diocese) or a parish or a university or a hospital or, for that matter, an archbishopric or the papacy itself______________________________________________________ were trustees, required by canon law to use the property conscientiously for the benefit of those for whose benefit it was acquired.

To speak of ecclesiastical property in the twelfth century as a "trust" is to take some liberties with a word which came to have specific meanings in English law four centuries later.

The "use" (like the later English "trust") presupposed three parties: a donor, a donee, and a beneficiary. The donee took the gift as a trustee for the beneficiary. Normally, however, property given to an ecclesiastical corporation was owned by the corporation; it was the donee. Nevertheless, it was also a beneficiary. If its officers had power to possess, use, and dispose of the corporation's property, they were required to exercise such power as its "trustees." That is still the rule of English company law as well as of American corporation law. It was, and is, also the rule of the canon law of the Roman Catholic Church.

The canonists also developed a legal device called a "foundation" or "corporation of goods" (universitas bonorum), as contrasted with "corporation of persons" (universitas personarum). This had been wholly missing from the older Roman or Germanic law. Although it has no exact parallel in later English secular law, it was received into the secular legal systems of other European countries. (In German it is called a Stiftung, in French a fondation.) It consisted of a personification of the purposes to

-239-

which property, money, land, and incorporeal rights had been dedicated.

economic activities adhering to the office, and all other perquisites of it____________________________________________________________ was treated as a legal

person, with power through its officers to conduct its own economic and legal affairs as a single entity. A hospital or poorhouse or educational institution, or a bishopric or abbey, could be viewed not only as a corporation of persons but also as a corporation of goods.

In addition to developing the modern concepts of corporate ownership, trust, and foundations, the canonists also developed modern concepts of possessory remedies. In particular, they developed in the twelfth century a legal action for the recovery of possession of land, goods, and incorporeal rights, whereby a prior possessor who had been violently or fraudulently dispossessed could recover against a present possessor merely by proof of the wrongful dispossession and without the necessity of proving a better title.

Possessory remedies were needed because of the widespread practice of violent taking and retaking of land by rival claimants. The church was directly affected when two persons claimed the same bishopric or abbey and the person in possession was ousted by armed supporters of his opponent. The disputants might be ecclesiastics -- bishops or abbots themselves -- or they might be secular lords claiming the right of presentation of bishops or abbots. The forcible ejection of the possessor was called spoliatio ("spoliation" or "despoiling"). In dealing with this problem, church councils as well as patriarchs, popes, and others at various times prior to the twelfth century had occasionally decreed that the prior possessor was entitled to be restored to possession before the question of the ultimate rights of the parties could be decided.

In Causae II and III of his Decretum (called originally The Concordance of Discordant Canons), Gratian dealt with the question of spoliation in the context of two fairly complex cases, each involving a bishop who had been forcibly dispossessed because of alleged crimes.

The first is headed, "That one who has been despoiled cannot be brought to trial is established by many authorities." Three popes are then quoted to the effect that "before suit everything must be restored to the one who possessed it." A letter of Bishop Eusebius to the monks of Alexandria and Egypt is quoted: "We find in your letters that certain bishops in your countries have been accused by their own flock... and some have been despoiled of their things and some have been expelled from their sees. You know that they cannot be called before either a provincial or a general synod... [or] judged anywhere else before all that has been taken away from them is wholly returned to their power, ac­

-240-

cording to the laws." Two other papal letters are then quoted to a similar effect.

Quaestio 1 of Causa III is headed, "Whether restitution shall be made to anyone whomsoever who has been despoiled." Once again, Gratian quotes from two papal epistles stating that bishops who have been despoiled or expelled should have everything wholly restored (redintegranda, "reintegrated") before crimes are charged against them. In one papal epistle it is stated: "nor may any among their superiors or their subordinates bring any charges against them so long as they are deprived of their churches, things, or powers." ¹⁰

Gratian then drew from these two papal epistles, which had been written with reference to specific cases, a rule of very great breadth. Anyone is entitled to a judicial decree of restitution of everything that has been taken from him, including incorporeal rights and powers, whether it has been taken by force or by fraud; and further, the remedy lies not only against the initial wrongdoer but also against third persons.

The jurists who "glossed' Gratian Decretum in the last half of the twelfth and the first half of the thirteenth centuries seized on the breadth of this rule. The Ordinary Gloss, that is, the accepted interpretation, written by Johannes Teutonicus in 1215, annotated Causa II, Quaestio 2, by stating: "The difference between this quacstio and quaestio 1 of Causa III is that here the restitution is prayed by means of an exceptio [that is, an affirmative defense to a criminal accusation], while there it is prayed by means of an action [that is, an independent cause of action]." The gloss of John Faventinus said: " Causa III, quaestio 1: Note that what is said about the despoiled bishops is generally understood to extend to all ecclesiastics." (In fact, Gratian extended it to all persons.) And Huguccio wrote: " Causa III, quaestio 1, c. 3: If anybody has been despoiled of his things with violence, or by threats, or with fraud by his adversary, or by any deceit, he must be restored."

Gratian's rule was called the canon redintegranda("rule of restitution"). Shortly after Gratian, the canonists created a new action called condictio ex canone redintegranda, which was later called actio redintegranda and still later actio spolii ("action of spoliation"). ¹² The actio spolii was available for any kind of spoliation (including spoliation by fraud); it could be used to recover possession of incorporeal rights as well as of movable and immovable things; it was available against third persons, including persons not in possession of things claimed; and the plaintiff was not required to show title to the land or goods or rights which he claimed. Finally, the action was available even to one who was himself wrongfully in possession. To take the most extreme case, if A forcibly dispossessed B, and then in retaliation B forcibly dispossessed A, A would be entitled to a judicial decree restoring him to possession. The principle was that a person out of possession who could prove that he had been forcibly or

-241

fraudulently dispossessed should have a preliminary judicial remedy of restitution before anything else concerning the matter was considered, and he was not to be benefited by taking the law into his own hands.

The protection of possession was of utmost importance in a feudal society in which what today is called ownership was characteristically divided among several persons. The feudal tenant held his land of his superior lord, who might also hold it of the king: the lord might lawfully enter the land for certain purposes, and he might have rights in certain products of the land; the tenant did not own the land, yet he needed legal protection against interference with his possessory rights by strangers. The canonists' analysis of the right of one who had been despoiled to be restored to what he had had, without proof of anything more than the "spoliation," was therefore of general significance.

One of the main forces behind the growth of royal law in twelfth- and thirteenth-century Europe was the need for a stronger central authority to keep peace among the barons. In this connection, too, the canonists' rule discountenancing self-help, even on the part of one who had the better right, had much to commend it.

The Roman law of Justinian's texts, by contrast, offered very little help in solving the twin problems of protection of possession and discouragement of self-help. The matter is dealt with only briefly in the Code, the Digest, and the Institutes.

In the Code, three examples are given of an interdict issued by praetors in the reigns of the Emperors Diocletian and Maximian and the Caesars. ¹³ (An interdict was an order given directly to the parties, stating the rule of law governing the case which they had brought to the praetor.) The interdict in question was called the interdict unde vi ("Whence by force"). In Justinian's three examples it is adapted to three different factual situations. In the first, the praetor states: "A person lawfully in possession has the right to use a moderate degree of force to repel any violence exerted for the purpose of depriving him of possession, if he holds it under a title which is not defective." This seems to refer solely to the right of defense of property against an attack in progress, a matter which for the canonists was wholly outside the scope of the problems which gave rise to the canon redintegranda and the actio spolii. Note also that ownership is protected by this rule but not mere possession. The second example of the interdict unde vi follows immediately after the first: "It is a positive rule of law that, by the employment of the interdict, those who have been forcibly ejected from property can have it restored to them if the available year has not expired, and that the heirs shall be liable for the amount which in the meantime has come into their hands." Again, this seems to have little bearing on the problem of self-help. In addition, there is no indication whether or not the plaintiff must prove his title in order to recover possession. The third example adds little or nothing to the second.

242-

The Digest is somewhat more elaborate. In a passage entitled "Concerning the Interdict Vi et Armata," there are two relevant passages, one from Ulpian, the other from Pomponius. Ulpian quotes a slightly different version of the interdict from those given in the Code: "The Praetor says: 'If you or your slaves have forcibly deprived anyone of property which he had at that time, I will grant an action, only for a year; but after the year has elapsed, I will grant one with reference to w hat has come into the hands of him who dispossessed the complainant by force.' " Ulpian then comments: "This interdict was established for the benefit of a person who has been ejected by force; as it is perfectly just to come to his relief under such circumstances. This interdict was devised to enable him to recover possession." One is still left in uncertainty with respect to the defense of ownership, which in Roman law was sharply distinguished from possession. Can the true owner use force to dispossess one who occupies under a claim of ownership which is faulty? Ulpian does not say. He does, however, limit the scope of the interdict very substantially by stating: "This interdict does not have reference to all kinds of violence, but only to such as issued against persons who are deprived of possession. It only relates to atrocious violence, and where the parties are deprived of the possession of soil; as, for instance, to a tract of land, or a building, but to nothing else..." Pomponius adds a brief remark: "If, however, you are ejected by armed force, you will be entitled to recover the land, even if you originally obtained possession of it either by violence, or clandestinely, or under a precarious title." Note that the true owner may have obtained possession by violence or clandestinely or under a precarious title. 1 4_

Finally, in the Institutes there is a passage concerning the interdict uncle vi which follows very closely a passage in the Institutes of the great Roman jurist Gaius, who lived in the second half of the second century A.D., and which clears up some matters but leaves others in even worse confusion. First it is stated that the interdict (applicable only to land and buildings) gives a remedy even though the person who was forcibly ejected himself possessed, as against the ejector, "by force, or secretly, or at will" (vi, clam, precario). Then it is stated that "if a person has taken possession of a thing by force, and it is his own property, he is deprived of ownership of it..." It is not clear, however, whose property it becomes. Finally, the passage makes reference to the Lex Julia relating to private or public violence, and states that one who forcibly deprives another of his possession is liable for private violence if it was done without arms, but for public violence if he expelled the other from possession by arms. "By the term arms we understand not only shields, swords, and helmets, but also sticks and stones." 15

A comparison of the treatment of the remedy against wrongful dispossession in Justinian's texts and in Gratian's Decretum is most illuminating. In some ways, the papal epistles play a role for Gratian

-243- analogous to that which the praetor's interdicts play for Ulpian, Pomponius, and Gaius. However, the quoted comments of the Roman jurists stick much more closely to the language of the interdicts. They tend to bind themselves to the terms of the authoritative rule rather than to extrapolate from them, although they may add to the cases covered by them. They generally follow the distinctions stated or implied in the rule. Thus if the interdict says "land," the Roman jurist in commenting on it tends to say that it means "land, not goods." With Gratian, however, the tendency is to look for the principle underlying the authoritative rule. If land, why not goods as well? and if land and goods, why not rights? The authorities say "bishop"; Gratian adds abbot or any priest and, ultimately, anyone at all, since the principle is to him the same. Thus Gratian concludes his analysis of spoliation with a comprehensive principle, applicable to a wide variety of situations, while the Roman texts yield only a set of discrete rules, rather narrowly conceived and difficult to rationalize.

It was the genius of the Romanist legal science of the twelfth and thirteenth centuries to extract from Roman texts such as those quoted here a coherent doctrine relating to the rights of persons wrongfully dispossessed of their property. The Romanists did so by applying to the interdicts unde vi and vi et armata and to the comments of Ulpian and Pomponius and Gaius the same kind of logic that Gratian applied to the decisions of the early popes and that later canonist glossators applied to Gratian's work. Under the influence of both canonist and Romanist legal science the various secular rulers of Europe enacted their own laws providing that even the rightful owner is not entitled to drive out the possessor by force or fraud, and that the possessor whose position rests on a prior wrongful dispossession is to give up the possession even though he might ultimately, in another action, regain the property if it is his.

Whatever policies may have motivated the secular authorities, the canonists' canon redintegranda and actio spolii were designed not primarily to protect possession as such but to punish self-help and bad faith. This is apparent from another innovation of the canonists, namely, the modification of the doctrine of Roman law that permitted a possessor to acquire title to land by a sufficient lapse of time, provided only that he came into possession lawfully. One who purchased land in good faith, for example, but later discovered that his seller had not had title to it, could ultimately acquire absolute ownership "by prescription." For the canonists, however, if the possessor knew that the land was not rightfully his, and if he knew to whom it rightfully belonged, then it was bad faith, and a sin, for him to retain possession of it. In the twelfth century, shortly after Gratian's treatise appeared, an anonymous author classified such retention as theft, and thereafter Pope Innocent III decreed that he who claimed by prescription must not at any time have been aware that

244- the object belonged to another. This provision of canon law conflicted sharply with the secular law in most parts of Europe. It nevertheless represents a basic structural element in the system of the canon law of property.