CANONICAL PROVISION. - It is the act by which the competent ecclesiastical authority grants an ecclesiastical office in accordance with the sacred canons.
I. NOTION AND HISTORICAL OUTLINE
No ecclesiastical office can be validly obtained without the p. c. This principle, expressly enshrined in the CIC (can. 147) and completed by the other maxim whereby the Supreme Pontiff has the right to reserve to himself the collation or conferral of benefices in the universal Church (can. 1431), sums up the doctrine always strenuously reaffirmed by the Church through centuries of struggles against external interference.
The dogmatic and logical foundation of this doctrine, whereby the Church affirms its exclusive competence in the appointment of the holders of ecclesiastical offices or benefices, is made to rest on the very nature of the Church as a perfect society (that is, in modern public-law terminology, an original order), and therefore sovereign in its own sphere, for the exercise of the activities relating to the attainment of its ends. From this there obviously follows its full freedom and independence in the appointment of its own ministers. The numerous exceptions which even today are seen to be admitted in practice, with a greater or lesser interference of the lay power in the appointment of parish priests, canons, bishops, are explained by canonists not as a renunciation of the Church's right, nor as a transfer of it to the civil authority, but only as a concession of the exercise of the right, under special conditions, and always subject to the approval of the Church itself. On this point it has been authoritatively taught: "this participation of the lay power in the exercise of the right of appointment, whatever the form and the motive of the concession, is always an act that proceeds from the Church and necessarily returns to it... every and any right or privilege that the State has had or may have in the aforesaid matter is a grace, a favor, a benign concession of the Church. One must, however, carefully distinguish the true concession from simple tolerance, which occurs when the Holy See for any just reason does not protest against the State, which exercises de facto a right or privilege that it has not obtained from the competent ecclesiastical authority" (Cappello). Therefore, if historically a positive lay interference was possible, not only in the choice of ecclesiastics but also in their investiture, this, according to canonical doctrine, always came about through abuse and never because the primitive constitution of the Church required it.
From the 6th century to the 11th century the investiture of ecclesiastics by laymen was more or less widely practiced. After the first centuries, in which the Christian Roman emperors already exercised a certain influence in the matter, the very collaboration between Church and State came to favor some interference of the latter in the provision of offices of the Church. Especially in France, under the Merovingians and the Carolingians, the State claimed for itself the right to appoint bishops and abbots, who on the other hand exercised civil powers as officials of the Sovereign. Only in 1073 did Gregory VII, in order to cut to the root the evils of this system and principally the simony (v.) practiced on a large scale by the emperor Henry IV (v.), with the traffic in bishoprics and abbeys, issue the famous decree that forbade laymen to confer and ecclesiastics to receive any investiture that was not made according to the canons. From this originated the great investiture struggle (v.) concluded with the Concordat of Worms (v.). At this time Ivo of Chartres elaborated the well-known doctrine (afterwards adopted in that concordat by Callistus II) which separated in investiture the concession of the jurisdiction inherent in the office from the conferral of the temporal goods annexed to it. Famous contrasts in the matter occurred still in the following centuries, among others with England, afterwards settled concordatially. And always in this form and with indults the Church subsequently regulated lay interference in the provision of benefices in the various States, except where the interference occurred without or against the will of the Holy See, in implementation of the various systems of relations between State and Church - Gallicanism (v.), regalism (v.), Josephinism, etc. - inspired by anti-curial doctrines, upheld by Marsilius of Padua (v.), L. Richer (v.), Febronius (G. N. Hontheim [v.]), Van Espen (v.), etc.
In practice it is not always easy to distinguish where the true concession ends and where simple tolerance begins; where the former really has a spontaneous character or is justified by a bilateral agreement, and where its origin must be sought in the hazy antiquity of more or less abusive customs or in more or less open impositions of the civil power. It is certain, however, that the Church has always been careful to make clearly evident that, however princes or other laymen may influence the choice and the designation of the ecclesiastic, the effective conferral upon him of the faculty to exercise his mission cannot derive from any power other than its own. Thus was interpreted, among other things, the right of appointment of bishops already belonging to the various States, and in particular to the French one, as a simple designation: "rex Franciae unum nobis nominare, et... per nos... provideri" (Concordat 1516: A. Mercati, Raccolta di conc. su materie eccles. tra la S. Sede e le autor. civili, Rome 1919, p. 236).
II. CANONICAL PROVISION IN CURRENT LAW
The doctrine of the Church governing the p. c. is set out in the CIC in two places: in book I (De personis), title IV, chapter 1, De provisione officiorum ecclesiasticorum (cann. 147-82), and in book III (De rebus), title XXV, chapter 3, De beneficiorum collatione (cann. 1431-47); thus obeying the modern concept that distinguishes in principle the notion of ecclesiastical office from that of benefice, since there can be, as there are, offices that are not benefices. The CIC sought in this way to react against the systematization of the earlier doctrine, which tended to make the matter concerning offices coincide with that of benefices and in practice merged them into a single study. However, since in fact the substratum of the benefice is the sacred office, which indeed stands to it as cause and end (v. BENEFICIO ECCLESIASTICO), and on the other hand in canon law there is no conferral of a beneficed office without conferral of the benefice united to it, the norms on the provision of the office and of the benefice turn out to be for the most part common and in any case closely connected and united, so as to be integrated and practically merged into a single body of discipline. The cornerstones of the system resulting from the norms on the matter do not depart from the traditional teaching of the Church.
Already the doctrine ante codicem, defining provision or provvision as "the complex of those acts whereby the benefice (or the office) is legitimately conferred on a person capable of holding it," distinguished within it three acts or moments that are still at the basis of current law and are identified as follows: a) the choice or determination of the person (designatio personae); b) the conferral of the title or office with the faculties and rights pertaining to it (collatio; institutio tituli collatica); c) the putting into possession, or investiture (possessionis datio, investitura).
Of these three phases of the p. c., the second (collatio) constitutes its central act, inasmuch as through it the sacred power is truly transmitted, and the holder is established in the corresponding grade of the hierarchy of jurisdiction. The Church therefore reserves it to itself as being of its absolute competence and cannot recognize it in outsiders or laypersons, whereas it can permit these to designate, under determinate conditions, the person to be provided for or to give that person possession of the benefice. The collatio corresponds in substance to the canonical mission (v.) required for admission into the ecclesiastical hierarchy (can. 109): without it no value can be attributed to the designation or imposition of the person, nor to the putting into or taking of possession by anyone whosoever, independently of the canonical penalties laid down for those who unlawfully confer or accept it (can. 2393-95). Whoever should take possession of the office without the grant of the competent ecclesiastical authority would be guilty of intrusio. The intrusio, moreover, if it has occurred with violence, becomes invasio.
Whenever the ecclesiastical Superior, together with the conferral, also has the choice of the person, there will be a "free" collation; otherwise a "necessary" collation, also called institution, confirmation or admission, according as the benefice is conferred on the presentation of a patron (v. PATRONATO, DIRITTO di) or following the elective choice of a college.
Save in the case of free collation - in which the person is chosen by the same authority that proceeds to the p. c., so that the choice itself is considered only an introductory formality, which does not confer, before the collation, any right on the person designated - the three acts constituting the p. of the benefice have different effects. According to the doctrine, the designation of the person, if validly made, attributes to that person an ius ad rem with respect to the benefice; the collation, on the other hand, confers an ius in re; while the putting into possession has only procedural importance. But these are concepts that are disputed and that in any case fall within the broader question concerning the nature of the ecclesiastical officeholder's right over the benefice (v.).
III. REQUIREMENTS FOR VALIDITY. FREE COLLATION
For the validity of the canonical provision (p. c.), requirements of various kinds are demanded, together with the observance of certain forms: some objective, some concerning the competence of the active subjects, and some concerning the suitability of the person provided for. An old rule laid down: «Beneficia ecclesiastica dignioribus, statim, gratis, singula singulis, saecularia saecularibus, regularia regularibus, sine diminutione et legitime conferantur.»
In current law, the matter having been definitively settled through a complex historical-juridical evolution, it is required: a) that the office to be conferred be vacant in law, on pain of invalidity of the provision. A promise for a next vacancy has no juridical value (cann. 150-51). The aim was thus to eliminate every turpem expectationem mortis alterius, by abolishing the so-called expectancies, in ancient times very widespread; b) that two incompatible offices not be conferred. Not only are those offices considered incompatible which cannot be fulfilled simultaneously by the same holder, but also two benefices one of which is sufficient for the honest support of the beneficiary (cann. 156, 1439). Here too the norm is aimed at avoiding the abuses produced in past centuries by the accumulation of benefices; c) that no new burdens be imposed on the benefice, save the right of the ordinary to draw pensions within strict limits (cann. 1440, 1429). Furthermore, deductions from the fruits (annates), or indemnities or tributes stipulated in the act of canonical provision, for the benefit of the collator, the patron or another person, are rigorously condemned as simoniacal (can. 1441); d) that the vacancy of an office not last beyond six months, save for another special term set by law (can. 153); e) that the provision of any office be evidenced by a written act; f-g-h) that, if it concerns a benefice, the provision be of itself perpetual; that no one confer a benefice upon himself; that the person provided for accept the conferral (cann. 1436-38); that finally secular benefices be conferred only on secular clerics, and religious ones on religious (can. 1442).
Besides the objective requirements examined thus far, others must be present both on the part of the authority that must make the canonical provision (active subject) and on the part of the person to be invested. Among the latter are first of all the clerical state and the priesthood, required in particular for all offices that involve a care of souls. It is also necessary to have reached the minimum age required for various offices (thus 30 years for a bishop, vicar general or capitular, etc., 35 for the master of novices of a religious order, 40 for the supreme Superior of a religious order, for the confessor of religious women, etc.); to possess the knowledge necessary to hold the office itself, to be upright, of honest life, piety, prudence, etc., and not to be hindered by impediments deriving either from generic incapacity (absence of the use of reason, etc.), or from infamy (v.), censure or irregularity.
As for the active subjects of the canonical provision, given the principle that this by its nature belongs to the ecclesiastical authority, to which the collation of the office is in every case reserved, even when it is preceded by a designation on the part of third parties, a distinction is made between ordinary and extraordinary collators. The former are the prelates endowed with ordinary jurisdiction to whom the collation of offices or benefices belongs ex iure: such are the Pope in the provision of all major benefices and the Ordinaries in that of the minor benefices of their own territory. All others are extraordinary collators, e.g., the metropolitan or another prelate who provides by devolutive right, in case of negligence, fault or crime in the course of an ordinary provision. The general rule is that all offices are of free collation; in this sense there is always a presumption iuris tantum.
The Pope, by virtue of his supreme jurisdictional power, has the right to confer all the offices of the Church; in particular, however, there belongs to him the free collation of cardinalates and of episcopal offices, besides that of the other dignities and minor offices for which he has expressly reserved to himself the right to provide. Bishops have the right to confer freely all the minor offices of the diocese, including canonries, save for benefices burdened by a right of patronage. Parish priests, on the other hand, have no power of collation, and their assistants must be chosen by the bishop.
IV. ELECTION, POSTULATION, PRESENTATION
Besides free collation, the other forms of canonical provision are:
1. election, which is the summoning of a suitable person to a vacant office, made by a college of persons competent for this. Such is the form of provision of the supreme office of the Church, the pontificate.
The rules for the other permitted cases of election are, however, laid down in detail by the CIC (cann. 160-78). By accepting the election, the electee acquires the right to the office, but must request confirmation from the Superior (bishop or Holy See, can. 175) within eight days.
2. Postulation, which occurs when a college elects a candidate lacking some requirement or having some dispensable impediment and asks (postulates) the competent Superior to grant confirmation that it wishes to accept him nonetheless. In short, it is a petition for a favor, subsidiary to election (cann. 179-82).
3. Presentation, which occurs in the exercise of the right of patronage, of the privilege of nomination granted in concordats or otherwise, and in other special cases (cann. 471 § 2, 525). As for the case of patronage, v. the relevant entry. For presentations not of true patronage, based on a concordat or other act (such as royal or state nominations), the procedures deducible from the tenor of the indult apply (can. 1471). Presentations or popular elections, still in force in some places, are tolerated only in the case that the choice or presentation takes place among three candidates proposed by the bishop (can. 1452). In any case the candidate legitimately presented, and accepted, must have the canonical institution necessary to occupy the office, and the same ecclesiastical authority to which the provision belongs is competent to grant it.
The last act of provision, the induction into possession (v.), is not necessary to perfect the provision itself, since the titular already has the planum ius in re by effect of the collation. It is, however, essentially valuable for fixing a starting point for the effective exercise of the rights belonging to the investee; in particular for the possession of the temporal revenues annexed to the office and for the running of the terms of prescription (three years of possession in good faith) in favor of the cleric, should his title present defects (can. 1446).
V. CANONICAL PROVISION IN MODERN CONCORDATS. ITALIAN LAW
The participation of States and of laypersons in general in the p. c., whose admissible limits under canon law have been seen above, after having been endured or accepted by the Church through centuries of struggle, is in our times normally regulated by concordatory agreements which at least in part abolished the old institutions through which the jurisdictionalist regimes had more or less forcibly imposed their interference. The content of such interference, whether undue or admitted by the Holy See, can practically be reduced to two opposing manifestations, which were designated respectively as the right of nomination and the right of exclusive. The first affects the choice of the person in a positive way, through the designation, or presentation, of a suitable candidate, so that the Church may grant him canonical institution; the second in a negative way, in the form of a veto, excluding a less acceptable person, so as to constitute for that person an incapacity to hold the office or benefice. Of this latter form the greatest expression was the now suppressed and condemned veto (v.) for the election of the Pontiff. The ancient forms of royal assent, exequatur (v.), placet, etc., were substantially in the end nothing but manifestations of the second form, though exercised after the provvista, and therefore not admitted by the Church, which on the other hand sometimes accepts it, as with the Italian Concordat, in preventive form.
Referring to the treatments on the various States for historical or positive-law information on the matter, it will suffice here to give the main outlines of the system in force in Italy. It should be recalled first of all how in pre-concordat law the State, while in no way considering the ministers of worship as its officials, had reserved for itself in the forms of the exequatur and the placet a substantial power of approval over the appointment of the holders of ecclesiastical benefices; it took no interest, on the other hand, in the appointment of the holders of non-beneficial ecclesiastical offices, even very important ones (e.g., the vicar general). This was based on the concept that ecclesiastical property was in a certain sense the property of the nation, and that therefore, while leaving the Church free to confer its offices, such freedom should be limited whenever the holders of these offices were at the same time to be the administrators of part of the ecclesiastical property.
Also on the basis of the Concordat of 11 February 1929 the Italian State, while renouncing any interference over everything that is the activity of the Church in purely spiritual matters, reserves for itself on the other hand a certain power of control over what is its patrimonial life. Therefore it still continues to take into particular consideration among ecclesiastics only the holders of benefices. For these alone the Concordat establishes the rule (not applicable to Rome and the suburbicarian sees) that they must be Italian citizens (art. 22), and only with their appointment does it concern itself. In fact, according to art. 25, the appointment of those invested with major and minor benefices and of whoever temporarily represents the vacant see or benefice takes effect from the date of the ecclesiastical p., which shall be officially communicated to the Government. On the other hand, now as before, the state authorities are not to receive communication of any appointment to ecclesiastical offices to which the administration of a benefice is not attached.
However, while for those invested with benefices in general it is simply a matter of knowledge of the appointment, without the State having the right to intervene in the matter, such a right is instead recognized for it in the case of the holders of benefices that entail a real power of spiritual direction over the faithful, that is, bishops and parish priests. The placet and the exequatur, already maintained by the Law of Guarantees for such appointments, are abolished; in their place it is established (Concordat, arts. 19, 21, 24) that the aforesaid beneficiaries are appointed exclusively by the competent ecclesiastical authorities according to the law of the Church (the Holy See for bishops; the bishops, as a rule, for parish priests) without the State having any right of proposal, though there is required, in addition to the requirement of Italian citizenship, common to all beneficiaries, that they speak the Italian language (ibid., art. 22). These requirements being established, in order to proceed to the appointment, the Church must furthermore (always excepting Rome and the suburbicarian sees) proceed with the following procedures: before proceeding to the appointment of an archbishop or of a diocesan bishop or of a coadjutor cum iure successionis, the Holy See shall communicate the name of the person chosen to the Italian Government in order to assure itself that the latter has no reasons of a political character to raise against the appointment. The relevant proceedings shall be carried out with the greatest possible promptness and with all confidentiality, so that secrecy may be maintained regarding the person chosen, until the appointment of that person takes place (ibid., art. 19). For the appointment of those invested with parochial benefices it is instead simply provided that they are communicated confidentially by the competent ecclesiastical authority to the Italian Government and cannot proceed before thirty days have passed from the communication. Within this period the Italian Government, should grave reasons oppose the appointment, may manifest them confidentially to the ecclesiastical authority, which, should the disagreement persist, shall refer the case to the Holy See. It should be noted that while for bishops it is specified that the Government is not permitted to raise objections that are not of a political nature, when it is a matter of the appointment of parish priests objections are admitted for grave reasons of any kind. Once the appointment of a bishop has taken place, the State no longer possesses, under the terms of the Concordat, any right to propose measures against him. For parish priests, on the other hand, should grave reasons arise that make the permanence of an ecclesiastic in a given parochial benefice harmful, the Italian Government shall communicate such reasons to the Ordinary, who in agreement with the Government shall take, within three months, the appropriate measures. In case of disagreement between the Ordinary and the Government, the Holy See shall entrust the solution of the question to two ecclesiastics of its choosing, who in agreement with two delegates of the Italian Government shall take a definitive decision (ibid., art. 21). Here too the Concordat refers generically to grave reasons, without limiting them only to those of a political nature.
In harmony with the guiding principles of the above norms, by which the State recognizes full freedom for the Church in the p. of ecclesiastical offices - save for the prior communication, for its possible objections, for the appointments of parish priests, bishops and archbishops -, the State furthermore renounced in the Concordat the royal patronage over major and minor benefices and every privilege relating to the appointments and provisions of benefices relating to the palatine clergy (ibid., arts. 25, 29).
Bibliography18 works
Arnaldo Bertola