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ianship. As early as the fifteenth century the modern concept of the State had arisen, and with the abolition of the old confusion of public and private spheres of right the union of temporal sovereignty with spiritual dignity came to be regarded as anomalous, though for a considerable time it dragged out an ostensible existence in the constitution of Germany. The Curia demanded a restitution of the old status, including the restoration of the Holy Roman Empire, the reerection of the spiritual principalities, and the return of the property wrested from the Church, but all in vain. The sole consolation of the pope was his continued control of the States of the Church in Italy. Neither can the confiscation of royal fiefs and of Regalia (q.v.) be regarded as invasions of the rights of the Church, since they had been used distinctly for political ends. It is, however, a question what constituted a royal fief, some defining it as the temporal rights connected with an imperial bishopric or abbey, while others restrict it to specific estates and privileges. In the Frankish kingdom the royal monasteries were deemed the property of the king or of the treasury, while the king controlled, though in more restricted degree, the property of the dioceses. In Germany churches and their endowment were the possession of the laity who had established them, though after the twelfth century the Church succeeded in reducing this control to the mere right of Patronage (q.v.). From the end of the ninth century the great majority of German bishoprics, including all their estates and prerogatives, were the property of the Empire, so that the property belonging to a church really meant only the permanent usufruct of such estates and prerogatives. The object of Investiture (q.v.) was the bishopric and the episcopal office, or both temporal and spiritual functions, and it is clear that previous to the investiture controversy the king controlled the bishoprics, i.e., the temporal side. After 1111, however, the king not only restricted himself to the temporal aspect of the matter, but expressly granted that a part of the temporalaa, such as church edifices and oblations, belonged unconditionally to the Church.

The diversion of the property of the estates of the Roman Catholic Church to Protestant uses in territories where the new doctrines were introduced

was deduced from the reformatory 8. Legal rights of secular rulers as construed in

Alienation teenth century as distinct from the of Property. extinct positive law of the Middle Ages.

Historic relations to the western Church and the necessity of control in the midst of confusion had placed the empire in jurisdiction, and this was transferred to the territorial rulers. Since Protestantism gained its legal basis through the help of temporal lords, its endowment was accomplished in legal form; and the church organizations arising from the Reformation were not due to the exit of Protestants from the Roman Catholic Church, but to the cleavage of the Western Church into Roman Catholic and Protestant. On the basis of their legal position as assured in the religious treaties of peace, the Protestants could claim that since their orran-

ization was no less a legitimate continuation of the pre-Reformation Church than Roman Catholicism, so the property which they received from this preReformation body had not been decatholicized by the Reformation, and had consequently not been alienated from the Church to which it had been dedicated. On the other hand there was at least a formal injustice in the diversion of true church property for secular uses. It is true that many of the older secularizations represent a reaction against the excessive accumulations of property under mortmain, which disturbed the economic balance of society. But this plea can not be alleged in extenuation of the confiscation of church property in the early nineteenth century, nor is the excuse valid that many of the richer ecclesiastical corporations and institutions of recent centuries served the interests of the privileged classes rather than the ends of the Church. It must further be recognized that the false theories of the " law of nature," alleged in extenuation of the illegal confiscation of a great part of Roman Catholic and of no small portion of Protestant church property at the commencement of the nineteenth century, can not validate injustice. This holds true both of the theory of eminent domain and of the doctrine that the property of the Church is really the property of the State, and may be devoted to religious ends only so long as the State pleases. The modern theory of the State rejects the tenet of eminent domain [not, however, in the United States], and while recognizing the supremacy of the State over private property, forbids such property to be devoted to mere political or economic needs of the State [in the United States the rights of eminent domain operate only upon just compensation to the owners of property]. Equally erroneous is any foundation of the State right of secularization on the alleged supremacy of society, for the right of the State to sequester the property of corporations is bound by precisely the same restrictions as its right to confiscate the property of individuals. False also is the theory that the power of the State absorbs all social and spiritual life, for religion, in particular, is no function of the State. The Church is a special organization for the promotion of the moral life and has its own justification; its property serves its special end, and is as exempt from the capricious control of the State as is any other private property. It is with justice, therefore, that modern legislation declares the property of the Church inviolable and expressly guarantees its security, although, as in the case of private property, it reserves the right of escheatage; nor does the mere fact that the property of a particular foundation is designed for spiritual ends of itself make the diocese, and eventually the Roman Catholic Church, the legal heir in case the foundation in question lapses. At the same time, a number of modern codes expressly enact that the property of individual foundations which can no longer be applied to their original ends may be used only for religious purposes.

The modern Roman Catholic theory that, although the religious corporations were suppressed, their property was reserved for religious and educational purposes, so that the Roman Catholic