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Copyright, 1927







Corporate organization represents one of the supreme achievements of highly civilized society. The substantial benefits to be derived from such a legal mechanism have been recognized both by Church and State, which have in turn adapted the corporate scheme to their respective needs. The relation between Church and State may be gleaned by an analysis of the position which the State assumes toward the ecclesiastical juristic personality. This generalization is limited neither by temporal nor geographical variations. It covers the situation which obtains today in the United States. True, the corporate aspects of the Church in this country have not been widely discussed; it is a domain which few have traversed. Yet in the determination of the temporal rights and obligations of the Church before the law, it is of extreme importance to understand the status and forms of the ecclesiastical legal personality. More particularly, the problem reduces itself to this: What view does the Church take of the canonical personality, and how does that idea compare with the recognition actually accorded this juristic person in the United States? This implies a statement of the legal standing which the Church is justly entitled to enjoy, and the practicability of obtaining such a status under the present constitution of American society and government.

In general, it is the Catholic attitude to regard the Church and Holy See as moral persons by virtue of divine law; to consider the inferior ecclesiastical moral persons, for example, individual churches, as possessing this character of juridical personality from the Church; and to de1Canon 100.

clare that in both instances these legal personalities enjoy certain inalienable rights and privileges apart from the State. But in the United States, the Church, as such, is not recognized as a juridical personality endowed with civil rights. This is true in both public and private law. This legal mentality seems to be an inheritance from the English common law, where there prevails the "Concession Theory" of corporations, namely, that the State is the creator of corporations, a legal principle which coincides with the Hobbes philosophy of the superiority of the State.


There is, then, in the United States, a conflict between Church and State in the matter of public and private corporate law. But in practice this clash of theories is softened by the State's allowing Catholics the right to practice their religion without molestation, and as citizens of the United States to exercise indirectly the corporate rights which are directly denied the Church by refusal to recognize her corporate capacity. The practical consequences of corporate personality are chiefly in the realm of Church ownership of property and its administration.*

The vigilance of the Church in the United States in this respect is indicated by the directions of the Third Plenary Council of Baltimore with reference to the holding of ecclesiastical property. Insistence upon proper civil recognition may also be found in the formulations and Pastoral Letter of the Second Plenary Council of Baltimore. To quote from the latter document: "While cheerfully recognizing the fact, that hitherto the General and State Governments of our country, except in some brief intervals of excitement and delusion, have not interfered with our ecclesiastical organization or civil rights, we still have to lament that in many of the States we are not as yet permitted legally to make those arrangements for the security of Church property, which are in accordance with the

Tyler, American Ecclesiastical Law, $110.


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Strong, Relations of Civil Law to Church Polity, 40.

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