PATRONAGE, RIGHT OF. — It is a privilege, with attached obligations, belonging, by concession 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
Its foundation lies in the Church’s gratitude toward its benefactors. In the early centuries this gratitude was expressed by naming the founder in the dedication of the church (e.g., the Constantinian or Lateran Basilica, the title of St. Lawrence called in Lucina) or by inscribing the founder’s name on the façade of the church.In the East, in the 6th century, under Justinianic legislation, founders of churches obtained for themselves and their heirs the right, with the approval of the bishop, to appoint the clergy necessary for divine worship (Nov. 57, c. 2; Nov. 123, c. 18) and to administer the property of the churches themselves (C., I, 3, 54).
In the West, the Second Council of Orange (A.D. 441) recognized the right of presentation to a bishop for someone 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 laypersons (c. 31, C. XVI, q. 7). The right of real patronage developed especially in lands occupied by Germanic peoples, where the practice of investiture prevailed—that is, the right of a free man to dispose of his land, including movable and immovable property thereon. Consequently, feudal lords extended the rights deriving from investiture to churches located on their lands and to the appointment and removal of the clergy attached to them. Abuses also arose from *mundium*, that is, the subjection of the inhabitants of a manor to its lord, who, considering himself the *advocatus* of his subjects, interfered even in the provision of minor offices. Even more serious inconveniences arose from the claim of sovereigns to interfere in the investiture of bishops; this was addressed in 1122 by the Concordat of Worms (v.). Later, Alexander III (1179) and the Fourth Lateran Council (1215) regulated the right of patronage, mainly limiting the patrons’ faculty 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 diminution of the Church’s freedom in the conferral of ecclesiastical offices, the Church has constantly sought to limit it; and the Code of Canon Law (can. 1450) forbade the creation of new patronage rights under any title, while inviting Ordinaries to urge current holders to accept, in place of the right of patronage or even of simple presentation (v. CANONICAL PROVISION), spiritual suffrages for themselves and their families. Consequently, the Code regulates only patronage rights that arose before its entry into force and to which holders have not renounced.
II. CONCEPT AND DISTINCTIONS
Before the Code, some reduced patronage to the right of presenting a candidate for an ecclesiastical office, while others saw it as a complex of rights and duties. The Code, with its definition, has placed this institution within the sphere of legal privileges, which entail both rights and obligations. It is distinguished as real or personal, according to whether it is connected with a thing or a person (there is also personalissimo patronage, which, unlike personal patronage, is not transmissible); ecclesiastical, lay, or mixed, according to the nature of the title on which it is based; hereditary, familial, gentilitial, or mixed, according to whether it is transmissible to legitimate heirs or testate successors, to members of the family or clan, or to those who are both 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 belonging to a sovereign; public, if belonging to a civil government; private, if belonging to a private individual; of justice, if arising from a foundation according to the rules of common law; of grace, if deriving from a privilege of the Church; active, for the person who has the right to present a candidate; passive, for the one presented; singular, if belonging to one person; collegial, if belonging to several persons (co-patronage).According to can. 1448, the object of this right can only be a minor ecclesiastical benefice, except in the case of royal patronage, whose object may also be a major benefice. The active subject is any person capable of acquiring ecclesiastical rights, and thus every baptized faithful, even if a layperson, a woman, an infant, an impubes, an illegitimate child, and juridical persons, whether ecclesiastical or lay. The incapable are instead the unbaptized, namely, non-baptized persons, Jews, public apostates, heretics, schismatics, members of secret societies condemned by the Church, and those excommunicated by a declaratory or condemnatory sentence (can. 1453 § 1). All capable persons exercise the right of patronage directly, except minors, who exercise it through their parents or guardian. In the case of the transmission of the right of real patronage 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 other lawful proofs (can. 1454).The modes of acquiring the right of patronage may be original or derivative. Original modes are: a) foundation, by the cession of land for the construction of a church or the construction of 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 preservation, the exercise of worship, and the support of the ministers; for the constitution of the right, one of these three elements suffices, as well as the reconstruction and new endowment in case of destruction of the previous ones; all these acts may be performed by a single person or by several (co-patrons); b) apostolic privilege or indult that gives rise to patronage of grace; c) immemorial prescription, constituting a presumption of law for the proof of the existence of the title, arising from the exercise of the right of presentation for an immemorial period. Derivative modes are: a) alienation: the sale of personal patronage is not permitted because it is simoniacal and thus causes the loss of the right; the sale of real patronage is permitted, with the approval of the Ordinary, except when it is made in favor of a co-patron, provided that the price is not greater than the penal value of the thing itself, since if the price includes the value of the right of patronage, the sale becomes simoniacal; exchange (v.) of real patronage may also be effected on condition that the value of the act does not include the right of patronage; b) hereditary succession, whether testamentary or legal, except in cases where the founder reserved the right to himself, excluding transmission by death; c) ordinary prescription: if it concerns real patronage, it is transmitted to the new patron with the transfer of the ecclesiastical or lay property; if the right is personal and lay, in the presence of a just title and good faith, it is transmitted in ten years between present parties, in twenty between absent parties, 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 encompassed in the expressions: *ius honorificum*, *ius utile*, and *ius onerosum*. Among the rights, the most important and characteristic is that of presentation, namely, the right to designate a suitable priest for institution by the competent ecclesiastical authority in an ecclesiastical office that has become vacant. Whether it concerns lay, ecclesiastical, or mixed patronage, the presentation must be made, in the absence of just impediments, within four months from the day on which the competent authority for instituting the presentato has communicated the vacancy of the benefice to the patron, and, in the case of a benefice conferrable by competition, the names of the priests who have obtained approval in the competition itself, unless, according to the foundation tables or legitimate custom, there is a shorter term (can. 1457). Once the aforementioned legal term has elapsed without effect, the church or benefice becomes subject to free collation by the competent ecclesiastical authority. The conferment of the church or benefice is instead suspended, beyond the legal term and until the resolution, in the event of a possible controversy that may arise between the Ordinary and the patron or among the patrons themselves regarding the right of presentation, or among the presentati themselves regarding the right of prelation: in case of necessity, in the meantime, the Ordinary may propose an administrator (*economus*) for the vacant church or benefice (can. 1458).In the case of a plurality of patrons, they may come to an agreement among themselves, for themselves and their successors, regarding the manner of alternating in presentations; however, for the validity of the agreement, the written consent of the Ordinary is required, which, once granted, cannot validly be revoked either by the Ordinary himself or by his successors against the will of the patrons (can. 1459). If, instead, the right of patronage is collegial, the person who has received the majority of votes according to can. 101 § 1 must be presented; however, if this majority has not been obtained in two ballots and in the third the same majority is obtained by more than one subject, all shall be considered as presented. If the holders of the right of patronage are several persons who have not agreed on the alternation of presentation, the person who has obtained at least a relative majority of votes shall be considered as presented, and in the case of a plurality of subjects who have obtained the majority, all shall be considered as presented.
A person who derives the right from a plurality of titles shall have, in the presentation, a number of votes corresponding to the number of his titles. Moreover, before the acceptance of the presentation, the patron may present more than one subject either simultaneously or successively, provided that it is done within the prescribed time, so as not to exclude those whom he had previously presented (can. 1460).
The patron cannot present himself nor join with other patrons to reach the number of votes necessary for his own presentation (can. 1461). In the case where the provision of the church or benefice must take place by competition, the patron, even if lay, cannot present anyone except a priest who has been legitimately approved in the competition (can. 1462). Popular elections and presentations to benefices, even parochial ones, if still in force, are tolerated by the Church only on condition that the people choose from a list of three 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 tables (can. 1463). The presentation must be made to the local Ordinary, who is competent to judge the suitability of the subject. The Ordinary must form his conviction, even by means of secret inquiries if necessary, and is not obliged to communicate to the patron the reasons that prevent the admission of the presentato (can. 1464). In the case of the ineligibility of the presentato, the patron may present another within the term specified in can. 1457, provided that the useful time has not elapsed due to his negligence; but if even the second is deemed ineligible, the church or benefice becomes, for that occasion, subject to free conferment, unless the patron or the presentato has appealed to the Holy See within ten days from the communication of the Ordinary’s refusal; in which case, as in that envisaged by can. 1458, the conferment is suspended until the controversy is resolved, and in the meantime, if necessary, an administrator may be appointed for the vacant church or benefice. Simoniacal presentation is null, and so too is any subsequent institution.
The person who has been presented and deemed suitable acquires the right to institution after the acceptance of the presentation. However, the right to grant canonical institution belongs exclusively to the Ordinary (to the vicar general only by special mandate). In the case where there are several presentati, it is for the Ordinary to choose the most suitable (can. 1466). Institution for any benefice, if there are no just impediments, must take place within two months of the presentation (can. 1467). In the case of renunciation or death of the presentato before canonical institution, the patron has the right to make a new presentation.
Among the other honorary rights, the CIC (can. 1450 § 3) lists, “if local customs do not prevent it,” the rights to affix the family or noble coat of arms in the church, to have precedence over lay persons in processions and functions, and to occupy the most honorable place in the church, though outside the sanctuary and without a canopy. It is held that this indication of the CIC is merely exemplary, and that, provided they do not conflict with local customs, other ancient honorary rights subsist, such as, for example, the *ius sepulturae* and the *ius luctus ecclesiastici* in the church subject to patronage.
The *ius utile* is manifested principally in the right of the patron, who has fallen into indigence through no fault of his own, to receive, by equity, sustenance (*alimenta*) from the revenues of the church or benefice remaining after expenses for the church or benefice, even if he has renounced the right of patronage in favor of the church or if a pension was foreseen by the foundation tables but is no longer sufficient to relieve the patron from his state of indigence (can. 1455, n. 2). There is considerable debate regarding the nature of this right to sustenance, namely, whether it belongs to the patron as an impoverished donor or whether it is a direct consequence of the nature of this institution, independent of the donation: the question is of particular importance for Italian law, and contemporary doctrine is now prevalent in holding that this right derives directly from the law. The *ius utile* also includes the right to intervene in the case of renewal or suppression of the benefice and to administer temporal goods, if so established in the foundation tables.
The *ius onerosum* consists in the duty to safeguard and defend the object of the right of patronage. Can. 1460 thus comprehends it: 1) to warn the Ordinary if he believes that the goods of the church or benefice are in danger of being dissipated, without however interfering in the administration of the goods themselves; 2) to restore the church if it has been destroyed or to carry out the repairs deemed necessary by the Ordinary, if the original title is that of building, and if the burden of restoration or repair does not fall upon others according to can. 1186; 3) if, instead, the original title is that of endowment, to supplement the revenues if they are no longer sufficient to provide for the decent celebration of worship or the conferment of the benefice.
In the period of destruction or decay of the Church
or of the diminution of its revenues, the exercise of the right
of patronage remains suspended, and, in the event of the patron’s refusal or inertia in fulfilling his obligations within the time
fixed by the Ordinary, the right itself ceases to exist.
Even in this case, a discussion has arisen as to whether the
holder is bound to fulfil his obligations as a donor or as
the holder of the right of patronage: the latter opinion is
prevalent.
V. EXTINCTION OF THE RIGHT
The right of patronage is extinguished for subjective and for objective causes. The subjective causes are: 1) extinction of the family, gens, or line to which the right is reserved by the foundation deeds in the case of personal patronage; 2) total or partial renunciation by the patron of his right, provided that the renunciation does not prejudice other possible compensations; 3) a delict of the patron, namely simoniacal sale of the right, apostasy, heresy or schism, unjust usurpation or detention of the goods and rights of the Church, murder or direct or indirect mutilation of the rector or of the clergy attached to the service of the Church or of the beneficiary, after a declaratory sentence: in this last case, unlike the preceding ones, the right is extinguished even in the case of the heirs of the guilty party (can. 1470 § 2).The objective causes are: 1) decay of the thing, in the case
of real patronage; 2) revocation of the right or perpetual
suppression of the Church or of the benefice by the Holy
See; 3) failure by the patron to reclaim or repair the thing
within the time fixed by the Ordinary; 4) union of the Church
or of the benefice with another of free conferment or trans-
formation of the Church into a parochial or regular one with
the consent of the patron (can. 1470 § 1 n. 5).
VI. PATRONAGE IN ITALIAN LAW
The legal nature of this institution is much debated in Italian ecclesiastical law. Some hold that it is a subjective public ecclesiastical right, inasmuch as it involves a participation by the patron in the exercise of ecclesiastical jurisdiction; others have considered it to be an honorary personal right; others again a private obligation right, deriving in large measure from the right to alms. It is evident, however, that the right to alms does not characterise the right of patronage, but constitutes only a remote and merely contingent consequence. The first opinion is the prevalent and more realistic one.Without entering into an examination of the value of canon
law in the Italian legal system, the efficacy of the Church’s
right in matters of patronage is evident. The Italian Civil
Code contains no provisions regulating this institution; yet
art. 2 of the law of 7 April 1850, no. 1013, transferred to the
competence of the Italian judicial authority causes concerning
the active and passive nomination to ecclesiastical benefices,
while the law of 29 May 1855, no. 878, and that of 15 August
1867, no. 384, established the devolution, in favour of the
holders of the right of patronage at the time of the publication
of the law abolishing them, of the ownership of the goods
belonging to benefices (right of reclaim) and chaplaincies
subject to lay patronage (right of release).
Following the Lateran Pacts, although the right of reclaim
and release was not altered and some disputes concerning
these rights were still pending, by the circular of 31 October
1930, no. 3719, the Ministry of Finance instructed the
Revenue Offices that in all measures relating to legal relations
established under the laws of spoliation and which still had
to be regulated by those laws, the administrative action
should be guided “by the spirit animating the Pact, that is,
absolute harmony between State and Church, and by the
common end of both, namely the good of the population
constituted by the faithful who are also subjects.”