Foundation

Foundation

(Lat. fundatio; Ger. Stiftung)

An ecclesiastical foundation is the making over of temporal goods to an ecclesiastical corporation or individual, either by gift during life or by will after death, on the condition of some spiritual work being done either in perpetuity or for a long time. It would be difficult to say exactly when foundations, as distinct from oblations or offerings, began to be considered as a normal means of ecclesiastical support. Offerings which were given on the occasion of some ecclesiastical ministration are a distinctive feature of the Apostolic Church. In early Christian times (the first three centuries) these offerings were spontaneous, but in the course of time the Church had to exercise her right to demand support from the faithful. The custom of giving and consecrating the first-fruits (primitiœ) to God and the maintenance of His ministers appears to have lasted until about the fifth century. Quite ancient also are the decimœ, or tithes (not necessarily a tenth): a portion of the harvest, or goods, or wealth, offered for the same purpose of maintenance of the clergy and for the due preservation of the services of the Church; this also has now almost entirely disappeared (see TITHES). Such popular contributions are often mentioned in early Christian writers, e.g. St. John Chrysostom, Hom. xliii, in Ep. I. ad Cor., ch. xvi; St. Jerome, vol. VI, in c. iii Malachiæ; St. Augustine, "Enarratio in Ps.", cxlvi. Under Emperor Constantine the mutual relations of the Church and State were readjusted; the prerogatives of the Church and the sphere of her action were enlarged. Having obtained political recognition, she acquired also the right of accepting donations and legacies, which, as a rule, were set apart by the bishops for the erection and maintenance of hospitals for the sick, orphan asylums, and homes for the aged and those destitute of all other means of support. At a Synod of Orléans (541) it was enacted that if an overlord wished to have an ecclesiastical district established on his property he must previously make a competent provision in land for the maintenance of the church and of the ecclesiastics who were to serve it. To the voluntary offerings made to the clergy must be added the numerous legacies which the Church began to receive from the converted barbarian peoples from the sixth and seventh centuries on; also, at an earlier date, the contributions of corn and wheat granted annually out of the public granaries by order of Constantine. In the West these revenues were usually divided into four parts, and allotted respectively to the bishop, the clergy, the poor, and the care of the ecclesiastical buildings. At the end of the twelfth and the beginning of the thirteenth century the energy displayed by the clergy in political affairs gave rise to a spirit of public enterprise which manifested itself in the formation of industrial guilds and the creation of charitable institutions, such as orphan asylums, foundling homes, hospitals, houses for the aged and infirm, hospices, and leper-hospitals, the majority of which were liberally endowed. For an account of this wonderful era of popular generosity, see Thomassin, "Vetus ac nova eccles. disciplina", III, 1-30; and Lallemand, "Hist. de la Charité" (Paris, 1906).

In general, the Church now derives its support mainly from voluntary offerings, civil aid or subsidy, and pious foundations. Foundations for pious uses may come under any one of the following heads: legacies for Masses; legacies to a particular diocese, church, school, etc.; to a charitable institution, e. g. an orphanage or a hospital; to any society established for an educational or charitable purpose, or in general for a religious end.

Foundations are contracts; therefore there must be mutual consent between the founder and the administrator of the institute receiving the gift. Moreover, there is the obligation of performing some work specified in the deed of foundation. The consent of the bishop, or, in the case of a regular community, the consent of the regular prelate, must be obtained, since it would not be just that ecclesiastical institutions should be placed under obligations which they are unable to fulfil (Sacred Congregation of the Council, 23 Nov., 1697). Benedict XIV considers supervision of the execution of pious legacies one of the most solemn and important duties of a bishop (De Synodo, Bk. XIII). The Council of Trent says (Sess. XXII, ch. ix): "The administrators, whether ecclesiastical or lay, of the fabric of any church whatsoever, even though it be a cathedral, as also of any hospital, confraternity, charitable institutions called 'montes pietatis', and of any place whatsoever, shall be bound to give in once a year an account of their administration to the ordinary, all customs and privileges to the contrary being set aside; unless it should happen that, in the institution and regulations of any church or fabric, it has been otherwise expressly provided. But if from custom, or privilege, or some regulation of the place, their account has to be rendered to others deputed thereunto, in that case also the ordinary shall be employed jointly with them, and all acquittances given otherwise shall be of no avail to the said administrators."

In the list of questions to be answered by bishops on their Roman visits ad limina the Congregation of Propaganda asks the following (nos. 49, 50): Are there any pious foundations in the diocese or legacies bequeathed for pious purposes? Are the proceeds of such bequests properly administered and the canons relating to such matters attended to? (See also the Constitution of Leo XIII affecting congregations of simple vows and known as "Conditæ a Christo", 8 Dec., 1900.) The bishop by a general statute may stipulate that foundations are only to be accepted under certain conditions. It is to be noted that acceptation without the consent of the bishop does not invalidate the legacy, but it is in the power of the bishop to rescind the contract if he judge it proper, although in the case of Masses in perpetuity Urban VIII approved a decree which postulates the consent of the bishop as necessary before such obligation can be incurred. The founder can, on the occasion of his gift, make any reservations that please him, provided the conditions are possible and fitting, are in no way adverse to the Divine and natural law, and are admitted by the bishop. The specific works which have to be fulfilled must be set forth in the deed of foundation. On the other hand, the founder, or his heirs, and the bishop cannot change the terms of a foundation once canonically erected, especially if the change would be to the detriment of a third person.

In the decrees of Urban VIII, "Cum Sæpe" (21 Jan., 1625), and Innocent XII, "Nuper a congregatione" (23 Dec., 1697), it is ordered that the stipulated Masses or other works must be fulfilled as a matter of justice; and, if not fulfilled, those responsible for the omission sin gravely and are bound to restitution. Money left as a foundation must be invested as soon as possible. A list of founded Masses is to be kept in a conspicuous place in the church; and when the Masses have been celebrated the fulfilment of the obligation is to be noted in a book kept for that purpose. The obligation of a foundation ceases absolutely when the income or principal is lost without fault on the part of anyone; but non-fulfilment, even for a lengthy period, does not prescribe against a foundation in perpetuity. The reduction of a foundation obligation is a matter for the judgment and decision of the Holy See, although it is not uncommon for bishops to receive faculties to make such reduction. Condonation and absolution for past omissions in the fulfilment of foundation obligations belong also to the Holy See, though here again bishops usually receive triennial faculties to act in such circumstances. Commutation of the wishes of the founder similarly belongs to the Holy See; but if it is merely a matter of interpretation of the wishes of the founder, bishops are competent to act, since they are the executors of all pious dispositions whether the endowment is given in the form of legacy, or the grant should take effect during the lifetime of the donor (Council of Trent, Sess. XII, ch. viii). It may be noted that, with regard to foundations for Masses, if the founder has given no definite instruction as to intention, the Congregation of the Council has often decided that the Masses must be applied for the founder, the interpretation being that he intended them for himself.

The synods of Westminster (Eng. tr., Stratford-on-Avon, 1886) have the following decrees: "It is fitting that the bishop select from the body of the chapter or from the body of the clergy prudent men to help him in the temporal administration of the diocese. He should often use their advice." "New obligations should not be accepted without the consent of the bishop. If those which he has already to fulfil appear to be too burdensome, or there does not exist a congruous endowment, let the priest apply to the bishop or lay the matter before him at the visitation." "If any of the faithful wish to found a daily or anniversary Mass the matter must be treated with the bishop, and the sum contributed for this object must be profitably invested so as to produce an annual interest for a perpetual endowment, as far as circumstances of time and places will allow, the canonical sanctions being observed." For similar legislation concerning Ireland see the "Acta et Decreta" of the plenary Synod of Maynooth, 1900 (Dublin, 1906), pp. 67-78. In the United States secular priests cannot accept foundations of Masses without the written permission of the bishop. Regulars must have the consent of their superiors general or provincials. No general rule has been laid down as to the requisite amount of the fund, each ordinary being free to fix the sum for his diocese. The councils of Baltimore urge that great circumspection should be used in accepting foundations, especially of perpetual Masses. It would seem advisable to accept foundations only on the following conditions: That the obligation to celebrate shall cease, if the fund, no matter from what cause, be either entirely lost or yield no income; that the ordinary shall have power to reduce the number of Masses if the interest on the capital, no matter for what reasons, becomes insufficient to make up the stipend fixed by the founder; that if, for whatever cause, the church in which the Masses are to be said is destroyed or deprived of a priest, the Masses can be said in any church to be designated by the ordinary.

In order to prevent the annulment or failure of a foundation particular attention should be given to the civil law of the place in question. In England (but not in Ireland) bequests to what the civil law regards as superstitious uses are void, as, for example, to maintain a priest, or an anniversary or obit, or a lamp in a church, or to say Masses for the testator's soul, or to circulate pamphlets inculcating the pope's supremacy. Legacies of money for charitable purposes, as for the use of schools, churches, etc., are valid; but if the money is to be laid out in the purchase of land for such purposes, the direction to purchase land shall be disregarded and the money shall be held for the charity. Land may be given by will for charitable purposes; but, by the Act 54 and 55 Vic., c. 73, the land must (with certain exceptions) be sold within a year from the testator's death; gifts of land for charitable purposes, otherwise than by will, are valid if the requirements of the Act 51 and 52 Vic., c. 42, are observed. Of these the principal ones are:

• the conveyance must be by deed;
• the gift must take effect twelve months before the death of the donor; and
• the gift must be without any reservation or condition for the benefit of the donor.

For the English legislation and Court practice concerning trusts and bequests for Catholic religious uses see, in general, Lilly and Wallis, "A Manual of the Law specially affecting Catholics" (London, 1893), 135-167. In the United States property cannot legally be devised to a corporation (e. g. to a church when incorporated) unless such corporation is authorized by its charter to receive bequests by will. Many theologians believe that bequests for religious and charitable purposes are valid and binding in conscience, even though null according to law; however, D'Annibale does not agree (Summula Theol. Mor., II, 339).

For the ecclesiastical legislation of the Diocese of Quebec see "La discipline du diocèse de Quebec" (Quebec, 1895), 131; for the ecclesiastico-civil law of the Province of Quebec, Mignault, "Le droit paroissial" (Montreal, 1893), 138, 260-62. (See PROPERTY, ECCLESIASTICAL; MASS; ENDOWMENT.)

For the law of ecclesiastical foundations in Germany see Sägmüller, "Kirchenrecht" (Freiburg, 1904), III, 800-3; and for the German civil law, Görtz in "Staatslexikon" (2nd ed., Freiburg, 1904), V, 574-78. For France see Bargilliat, "Prælectiones Jur. can." (Paris, 1907), nos. 1363-81; also André-Wagner, "Dict. de droit canonique" (2nd ed., Paris, 1901), II, 225-28. For the administration of the important ecclesiastical foundations in Hungary see Vering, "Kirchenrecht" (3rd ed., Freiburg, 1893), 149; in Baden: op. cit., 249-50.

TAUNTON, Law of the Church (London, 1906); SMITH, Elements of Eccles. Law (New York, 1886); BOUIX, De Episcopis (Paris, 1859); BARGILLIAT, Prœlect. Jur. can. (27th ed., Paris, 1907); LUCIDI, De visit. sac. liminum (3rd ed., Rome. 1883); VON OBERCAMP in Kirchenlexikon, s. v. Causœ Piœ; FERRARIS, Bibliotheca prompta (ed. Rome, 1883).

DAVID DUNFORD