PATRONATO, DIRITTO di. - It is a privilege, with attendant obligations, belonging, by grant of ecclesiastical authority, to the faithful who have founded a church, a chapel, or a benefice, and to their successors in title (can. 1448).
I. HISTORY
It is founded upon the Church’s gratitude toward her benefactors. In the first centuries such gratitude was manifested by giving the founder’s name to the church (the Constantinian or Lateran Basilica, the title of S. Lorenzo known as in Lucina) or by inscribing that name on the façade of the church.In the East, in the sixth century, by virtue of Justinian legislation, founders of churches obtained for themselves and their heirs the right to appoint, with the bishop’s approval, the clergy necessary for worship (Nov. 57, c. 2; Nov. 123, c. 18), and also the right to concern themselves with the administration of the property of those churches (C., I, 3, 54).
In the West, the First Council of Orange (A.D. 441) recognized the right of presentation of a bishop who had built a church in another diocese (c. 1, C. XVI, q. 5), and the Fourth Council of Toledo (A.D. 633) granted the same privilege to laymen (c. 31, C. XVI, q. 7). The right of real patronage developed especially in countries occupied by Germanic peoples, among whom investiture was in force, that is, the right of a free man to dispose of his estate together with the movable and immovable property existing upon it; consequently, the feudal lords extended the rights deriving from investiture to churches situated within the fief and to the appointment and deposition of the clergy attached to them. Abuses also arose from mundium, that is, from the subjection of the inhabitants of an estate to its lord, who, considering himself the advocatus of his subjects, also interfered in the provision of lesser offices. Still graver inconveniences arose from the claim of sovereigns to interfere in the investiture of bishops; this, however, was remedied in 1122 Worms (v.). Subsequently Alexander III, the Third (A.D. 1179) and Fourth Lateran Councils (A.D. 1215) regulated the right of patronage, chiefly limiting the faculty of patrons to the designation of clerics. These norms were adopted and further specified in the decretals of Gregory IX and Boniface VIII, in the constitutions of Clement V and, finally, by the Council of Trent.
Since, however, the right of patronage constitutes a restriction upon the Church’s freedom in the conferral of ecclesiastical offices, she thereafter consistently sought to limit it; and in the CIC (can. 1450) she prohibited the establishment of new patronages under any title, while at the same time inviting Ordinaries to exhort present holders to accept, in place of the right of patronage or even of that of simple presentation (v. PROVVISTA CANONICA), spiritual suffrages for themselves and their families. Consequently, the CIC regulates only rights of patronage that arose before its entry into force and to which their holders have not renounced.
II. CONCEPT AND DISTINCTIONS
Before the CIC, some reduced patronage to the right to present a candidate to an ecclesiastical office, while others regarded it as a complex of rights and duties. Through its definition, the CIC placed this institution within the sphere of legal privileges, which at the same time entail rights and obligations. It is distinguished as real or personal, according to whether it is connected with a thing or with a person (there is also the strictly personal patronage which, unlike personal patronage, is not transferable); ecclesiastical, lay, or mixed, according to the nature of the title on which it is based; hereditary, familial, gentilic, or mixed, according as it is transferable to legitimate or testamentary heirs, or to members of the family or clan, or to those who are at the same time heirs and members of the family or clan of the founder (can. 1449). The right of patronage may also be distinguished as: full, if composed of all its elements; semi-full, if lacking the right of presentation; royal, if it belongs to a sovereign; public, if it belongs to a civil government; private, if it belongs to a private individual; of justice, if it originates in a foundation established according to the rules of common law; of grace, if it derives from a privilege of the Church; active, in the case of the person who has the right to present the candidate; passive, in the case of the person to be presented; singular, if it belongs to one person alone; collegial, if it belongs to several persons (co-patronage).According to can. 1448, the object of this right can only be a minor ecclesiastical benefice office, with the exception of royal patronage, whose object may also be a major benefice. The active subject is every person capable of acquiring ecclesiastical rights, and therefore every baptized member of the faithful, even if a layman, a woman, an infant, a minor, or an illegitimate child, as well as juridical persons, both ecclesiastical and lay. The incapable, on the other hand, are infidels, that is, the unbaptized, Jews, public apostates, heretics, schismatics, members of secret societies condemned by the Church, and excommunicated persons after a declaratory or condemnatory sentence (can. 1453 § 1). All capable persons exercise the right of patronage directly, with the exception of minors, who exercise it through their parents or guardian. If the right of real patronage is transferred to an incapable person, the exercise of the right remains suspended (can. 1453 § 3).
III. ACQUISITION
The existence of the right must be established by authentic documents or by other legitimate proofs (can. 1454).The ways of acquiring the right of p. may be original or derivative. Original are: a) foundation by ceding the land on which to build the church, or by constructing the church itself with one’s own means and with the consent of the Ordinary, and the endowment of the Church by assigning the means necessary for its upkeep, the exercise of worship, and the support of the ministers; for the constitution of the right, one of the three elements is sufficient, as are reconstruction and a new endowment in the event of the destruction of the preceding ones; all these acts may be carried out by a single person or by several persons (compatroni); b) the apostolic privilege or indult that gives rise to p. of grace; c) immemorial acquisitive prescription, constituting a praesumptio iuris for proof of the existence of the title, deriving from the exercise of the right of presentation for an immemorial period. Derivative are: a) alienation: the sale of personal p. is not permitted because it is simoniacal and consequently entails the loss of the right; the sale of real p. is permitted, with the approval of the Ordinary, unless it is made in favor of the compatron, provided that the price is not greater than the market value of the thing itself, since, if the price also includes the value of the right of p., the sale becomes simoniacal; likewise, exchange (v.) of real p. may be carried out on condition that the right of p. is not included in the valuation of the transaction; b) hereditary succession, both testamentary and intestate, except in cases in which the founder has reserved the right to his own person, excluding transmission upon death; c) ordinary prescription: if it concerns real p., it is transmitted to the new patron with the transfer of the property, whether ecclesiastical or lay; if the right is personal and lay, where there is a just title and good faith, it is transferred in ten years between persons present, in twenty between absent persons, and in thirty without title; if the right is personal and ecclesiastical, in forty years with title, and by immemorial prescription if without title.
IV. CONTENT
As already explained, patronage consists of a complex of rights and obligations, whose content is summarized in the expressions: ius honorificum, ius utile, ius onerosum. Among the rights, the most important and characteristic is that of presentation, that is, of designating a priest suitable for institution by the competent ecclesiastical authority to a vacant ecclesiastical office.Whether it is lay, ecclesiastical, or mixed patronage,
the presentation must be made, in the absence of legitimate impediments, within four months from the day on which the authority competent to institute the person presented has notified the patron of the vacancy of the benefice and, in the case of a benefice conferred by competition, of the names of the priests who obtained approval in the competition itself, unless, on the basis of the foundation deeds or legitimate custom, a shorter period is prescribed (can. 1457). Once the aforementioned legal period has elapsed without result, the church or benefice becomes subject to free collation by the competent ecclesiastical authority. The conferral of the church or benefice is instead suspended beyond the legal period and until the resolution of any dispute that may arise between the Ordinary and the patron, or among the patrons themselves, concerning the right of presentation, or among the persons presented themselves concerning the right of precedence: in case of necessity, meanwhile, the Ordinary may appoint an administrator to the vacant church or benefice (can. 1458).
When there are several patrons, they may agree among themselves, for themselves and their successors, on the manner of alternating in presentations; but for the validity of the agreement the written consent of the Ordinary is required, and once granted, it cannot validly be revoked either by the same Ordinary or by his successors against the will of the patrons (can. 1459). If, on the other hand, the right of patronage is collegial, the person who has received the majority of the votes in accordance with can. 101 § 1 must be presented; if, however, this majority has not been obtained in two ballots and in the third an identical majority is obtained by several persons, all of them shall be deemed presented. If the holders of the right of patronage are several persons who have not agreed on alternating presentations, the person who has obtained at least a relative majority of the votes shall be deemed presented; and if several persons have obtained a majority, all shall be deemed presented.
A person who derives the right from several titles shall have, in the presentation, a number of votes corresponding to the number of his titles. Moreover, before accepting the presentation, the patron may present several persons, either simultaneously or successively, provided that he does so within the prescribed period, so as not to exclude those whom he had previously presented (can. 1460).
The patron may not present himself, nor join with the other patrons in order to reach the number of votes necessary for his presentation (can. 1461). When the provision of the church or benefice is to take place by competition, even a lay patron may present only a priest who has been duly approved through competition (can. 1462). Popular elections and presentations to benefices, including parish benefices, if they are still in force, are tolerated by the Church only on condition that the people choose from a terna designated by the Ordinary (can. 1452). The person presented must be suitable, that is, on the day of presentation, or at least of acceptance, he must possess all the qualities required by common or particular law or by the foundation deeds (can. 1463). The presentation is to be made to the Ordinary of the place, who is responsible for judging the suitability of the person. The Ordinary must form a judgment, also through confidential information if necessary, and is not obliged to make known to the patron the reasons preventing the admission of the person presented (can. 1464). If the person presented is unsuitable, the patron may present another within the period mentioned in can. 1457, provided that the time available has not elapsed through his negligence; but if the second person is likewise deemed unsuitable, the church or benefice becomes, on that occasion, subject to free collation, unless the patron or the person presented has appealed to the Holy See within ten days of notification of the Ordinary’s refusal. In that case, as in the one provided for by can. 1458, the conferral is suspended until the dispute has been resolved, and meanwhile, if necessary, an administrator may be appointed to the vacant church or benefice. A simoniacal presentation is null, as is the subsequent institution.
The person who has been presented and deemed suitable acquires the
right to institution after accepting the presentation. But the right to grant canonical institution belongs exclusively to the Ordinary (to the vicar general only by special mandate). If several persons have been presented, the choice of the most suitable belongs to the Ordinary (can. 1466). Institution to any benefice, if there are no legitimate impediments, must take place within two months of the presentation (can. 1467). In the event that the person presented renounces or dies before canonical institution, the patron has the right to make a new presentation.
Among the other rights of honor, the CIC (can. 1450 § 3) lists, «si ira ferant legitimae locorum consuetudines», the rights to place the coat of arms of the family or lineage in the church, to take precedence over laypersons in processions and liturgical functions, and to have the most distinguished place in the church, but outside the presbytery and without a canopy. This indication of the CIC is considered illustrative, and it is held that, provided they do not conflict with local customs, the other ancient rights of honor also subsist, such as, for example, the ius sepulturae and the ius luctus ecclesiastici in the patronal church.
The ius utile is manifested principally in the patron’s right, when he has fallen through no fault of his own into a state of indigence, to receive ex sequitate the means of subsistence from the revenues of the church or benefice remaining after the expenses of either have been met, even if he has renounced the right of patronage in favor of the church or the pension was provided for in the foundation deeds but is no longer sufficient to relieve the patron from his state of indigence (can. 1455, n. 2). There is serious debate concerning the nature of this right to support, namely, whether it belongs to the patron as an impoverished donor or whether it is a direct consequence of the nature of this institution, independently of the donation. The question is particularly important for the purposes of the Italian legal system, and today the prevailing view in doctrine is that this right derives directly from the law. The ius utile also includes the right to intervene in the event of the renewal or suppression of the benefice and to administer temporal goods, if this is established in the foundation deeds.
The ius onerosum consists in the duty to supervise and defend the object of the right of patronage. Can. 1469 summarizes it as follows: 1) to notify the Ordinary if he considers that the goods of the church or benefice are in danger of being squandered, without, however, interfering in the administration of those goods; 2) to rebuild a destroyed church or carry out the repairs deemed necessary by the Ordinary, if the original title is that of construction and if the burden of rebuilding or repair does not rest upon another in accordance with can. 1486; 3) if, on the other hand, the original title is that of endowment, to make up the deficiency in the revenues if they are no longer sufficient to provide for the decent exercise of worship or the conferral of the benefice.
During the period in which the church is destroyed or deteriorating, or its revenues are dwindling, the exercise of the right of patronage remains suspended; and, in the event of the patron’s refusal and failure to fulfill his obligations within the period established by the Ordinary, the right itself ceases to exist.
In this case too, the question has arisen whether the holder is obliged to fulfill these duties as a donor or as the holder of the right of patronage: the latter opinion is predominant.
V. ESTINZIONE DEL DIRITTO
The right of p. is extinguished by subjective and objective causes. The subjective causes are: 1) extinction of the family, gens, or line to which the right is reserved by the foundation charters in the case of personal p.; 2) total or partial renunciation by the patron of his right, provided that the renunciation does not prejudice any other co-patrons; 3) an offense committed by the patron, namely, simoniacal sale of the right, apostasy, heresy or schism, unjust usurpation or withholding of the church’s property and rights, murder or direct or indirect mutilation of the rector or clergy assigned to the service of the church or of the beneficiary, following the declaratory judgment: in the latter case, unlike the preceding ones, the right is extinguished also for the offender’s heirs (can. 1470 § 2).The objective causes are: 1) deterioration of the property, in the case of real p.; 2) revocation of the right or perpetual suppression of the church or benefice by the Holy See; 3) failure by the patron to rebuild or repair the property within the period established by the Ordinary; 4) union of the church or benefice with another subject to free collation, or transformation of the church into an elective or regular one with the patron’s consent (can. 1470 § 1 n. 5).
VI. P. IN ITALIAN LAW. — The juridical nature of this institution in Italian ecclesiastical law is the subject of considerable debate. Some hold that it is a public ecclesiastical subjective right, insofar as it entails the patron’s participation in the exercise of ecclesiastical jurisdiction; others have considered it a personal honorary right; still others, a private right of obligation, deriving in large part from the right to maintenance. It is evident, however, that the right to maintenance does not characterize the right of p., but constitutes merely a remote and purely eventual consequence. The first opinion is predominant and more consonant with reality.
Without needing to enter into an examination of the value of canon law within the Italian legal system, the effectiveness of Church law in matters of p. is evident. The Italian Civil Code contains no trace of provisions regulating this institution; however, Art. 2 of the law of 9 Apr. 1850, no. 1013 assigned to the jurisdiction of the Italian judicial authority cases concerning active and passive nomination to ecclesiastical benefices, while the law of 29 May 1855, no. 878, and that of 15 Aug. 1867, no. 3848, provided for the transfer, in favor of holders of the right of p. at the time of publication of the law on abolition, of ownership of property belonging to benefices (right of recovery) and chaplaincies subject to lay p. (right of release).
Following the Lateran Pacts, although the rights of recovery and release were not modified, and some disputes concerning those rights were still pending, the Ministry of Finance, by circular no. 3719 of 31 Oct. 1930, recommended to the Finance Offices that, in all measures relating to legal relationships constituted under the operation of the subversive laws and still requiring regulation under those laws, administrative action should be guided «by the animating spirit of the Pact, namely, absolute harmony between the State and the Church, and by the common aim of both, namely, the welfare of the population consisting of the faithful who are also subjects».