RIGHT OF PATRONAGE. - It is a privilege, with attached obligations, belonging, by concession of the 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 has its foundation in the Church's gratitude toward its benefactors. In the early centuries this gratitude was shown by imposing the founder's name (the Constantinian or Lateran Basilica, the title of St. Lawrence known as "in Lucina") or by inscribing that name on the facade of the church.
In the East, in the 6th century, by virtue of Justinian's legislation, the founders of churches obtained for themselves and for their heirs the right to appoint, with the bishop's approval, the clergy needed for worship (Nov. 57, c. 2; Nov. 123, c. 18) and the right to attend to the administration of the goods of those same churches (C., I, 3, 54).
In the West, the First Council of Orange (a. 441) recognized the right of presentation to a bishop who had built a church in another diocese (c. 1, C. XVI, q. 5), and the Fourth Council of Toledo (a. 633) granted the same privilege to laymen (c. 31, C. XVI, q. 7). The right of real patronage developed especially in the countries occupied by Germanic peoples, among whom investiture was in force, that is, the right of the free man to dispose of his estate together with the movable and immovable things existing on it; consequently the feudal lords extended the rights deriving from investiture to the churches situated within the fief and to the appointment and deposition of the clergy assigned to them. Abuses also derived from the mundium, that is, from the subjection of the inhabitants of the estate to the lordship of the same, who, considering himself advocatus of his subjects, also meddled in the provision of the minor offices. Even more serious drawbacks derived from the claim of sovereigns to interfere in the investiture of bishops: this, however, was remedied in 1122 by the Concordat of Worms (v.). Subsequently Alexander III, the Third (a. 1179) and Fourth Lateran Council (a. 1215) regulated the right of patronage, chiefly limiting the patrons' faculty to the designation of clerics. These norms were received and even more precisely 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 since constantly sought to limit it; and in the CIC (can. 1450) it forbade the establishment of new patronages on any title whatsoever, at the same time inviting Ordinaries to exhort current holders to accept, in place of the right of patronage or even of that of simple presentation (v. PROVISTA CANONICA), spiritual suffrages for themselves and for their families. Consequently the CIC regulates only rights of patronage that arose before its entry into force and to which the holders have not renounced.
II. CONCEPT AND DISTINCTIONS
Before the CIC some reduced the p. to the right of presenting the candidate to an ecclesiastical office, others to a complex of rights and duties: the CIC, with its definition, has placed this institution within the sphere of legal privileges, which entail at the same time rights and obligations. It is distinguished into real and personal, according to its connection with a thing or with a person (there is also the most personal p. which, unlike the personal one, is not transferable); ecclesiastical, lay and mixed, according to the nature of the title on which it is based; hereditary, familial, gentilicial and mixed, according to whether it is transferable to the legitimate or testamentary heirs, or to the members of the family or of the gens, or to those who are at the same time heirs and members of the family or of the gens of the founder (can. 1449). The right of p. can also be distinguished into: 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 from a foundation according to the rules of common law, of grace if it derives from a privilege of the Church; active for the person who has the right to present the candidate, passive for the one to be presented; singular if it belongs to a single person, collegial if it belongs to several persons (compatronage).
According to can. 1448, the object of this right can only be a minor beneficed ecclesiastical office, with the exception of the royal p., whose object can also be a major benefice. The active subject is every person capable of acquiring ecclesiastical rights, and therefore every baptized faithful, even if a layperson, a woman, an infant, an impuber, an illegitimate child, and juridical persons, both ecclesiastical and lay. On the other hand, the unbaptized are incapable, that is, non-baptized persons, Jews, public apostates, heretics, schismatics, those enrolled in secret societies condemned by the Church, those excommunicated after a declaratory or condemnatory sentence (can. 1453 § 1). All capable persons exercise the right of p. directly, with the exception of minors who exercise it through their parents or guardian. In the case of transmission of the right of real p. 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 modes of acquiring the right of patronage may be original or derivative. Original modes are: a) foundation by the cession of the land on which to build the 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 the assignment of the means necessary for its preservation, for the exercise of worship and for the support of the ministers; for the constitution of the right, one of the three elements is sufficient, as is also the reconstruction and the new endowment in the event of the destruction of the previous ones; all these acts may be performed by a single subject or by several subjects (co-patrons); b) the apostolic privilege or indult which gives rise to the patronage of grace; c) immemorial acquisitive prescription, constituting a praesumptio iuris for the proof of the existence of the title, deriving 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 therefore produces the loss of the right; the sale of real patronage is permitted, with the approval of the Ordinary, unless it is effected in favor of the co-patron, provided that the price is not greater than the market value of the mere thing, since, if the price also includes the value of the right of patronage, the sale becomes simoniacal; the exchange (v.) of real patronage may also be effected on condition that the right of patronage is not included in the value of the act; b) hereditary succession, whether testamentary or intestate, except in cases in which the founder has reserved the right to his own person, excluding transmission by reason of death; c) ordinary prescription: if it is a matter of real patronage, it is transmitted to the new patron with the transfer of the good, whether ecclesiastical or lay; if the right is personal and lay, in the case of the existence of a just title and of 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 set out, the p. consists of a complex of rights and obligations, the content of which is summed up 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 his institution by the competent ecclesiastical authority in a vacant ecclesiastical office.
Whether it is a question of lay p., or ecclesiastical or mixed, the presentation must be made, in the absence of just 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 conferrable by competition, of the names of the priests who have obtained approval in that competition, unless, on the basis of the foundation tables or of legitimate custom, there is a shorter term (can. 1457). Once the aforesaid legal term has passed without result, the church or the benefice becomes subject to free collation by the competent ecclesiastical authority. The conferral of the church or of the benefice is instead suspended, beyond the legal term and until the resolution, on account of any dispute that may arise between the Ordinary and the patron or among the patrons themselves, over the right to presentation, or among the persons presented themselves over the right of prelation: in case of necessity, in the meantime, the Ordinary may place an administrator over the vacant church or benefice (can. 1458).
In the case of a plurality of patrons, these may agree among themselves, for themselves and for their successors, on the manner of taking turns in presentations, but for the validity of the agreement the written consent of the Ordinary is required, which nevertheless, 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 p. is collegial, the person to be presented must be the one who has received the majority of the suffrages in accordance with can. 101 § 1; 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 will be considered as presented. If the holders of the right of p. are several persons who have not agreed on taking turns in the presentation, the one who has obtained at least the relative majority of the suffrages will be considered as presented, and in the case of a plurality of persons who have obtained the majority, all of them will be considered as presented.
He who derives the right from a plurality of titles will 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 even several persons, whether simultaneously or successively, provided however that this is done within the prescribed time, in such a way as not to exclude those whom he had presented previously (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). In the case that the provision of the church or of the benefice must take place by competition, the patron, even a lay one, may not present anyone other than a priest legitimately approved for 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 the presentation, or at least of the acceptance, he must be endowed with 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, to whom it belongs to judge the suitability of the subject. The Ordinary must form a conviction, even by means of secret information, if necessary, and is not bound to make known to the patron the reasons that prevent the admission of the person presented (can. 1464). In case of the unsuitability of the person presented, the patron may present another within the term referred to in can. 1457, on condition that the useful time has not elapsed through his own negligence; but in the case that even the second is not deemed suitable, the church or the benefice becomes for that occasion subject to free conferral, unless the patron or the person presented has appealed to the Holy See within ten days from the communication of the Ordinary's refusal; in which case, as in that provided for by can. 1458, the conferral is suspended until the resolution of the dispute and in the meantime, if necessary, an administrator may be placed over the vacant church or benefice. A simoniacal presentation is null and so is the subsequent institution.
He who has been presented and deemed suitable acquires the right to institution after the acceptance of the presentation. But the right to grant canonical institution belongs exclusively to the Ordinary (to the vicar general only by special mandate). In the case that there are several persons presented, the choice of the most suitable belongs to the Ordinary (can. 1466). The institution for any benefice, if there are no just impediments, must take place within two months from the presentation (can. 1467). In case of the resignation or death of the person presented 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», those of placing the coat of arms of the family or of the lineage in the church, of having precedence over the laity in processions and functions, and the most worthy place in the church, but outside the presbytery and without a baldachin. It is held that this indication of the CIC is exemplary and that, if not in conflict with local customs, the other ancient rights of honor subsist, such as, for example, the ius sepulturae and the ius luctus ecclesiastici in the patronized church.
The ius utile is manifested principally in the right of the patron, who has fallen into a state of indigence without fault of his own, to receive ex aequitate support from the revenues of the church or of the benefice remaining after the expenses for the one or the other, even if he has renounced the right of p. in favor of the church or the pension has been provided for by the foundation tables, but is no longer sufficient to relieve the patron from the state of indigence (can. 1455, n. 2). There is serious discussion on the nature of this right to support, that is, 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 has particular importance for the purposes of the Italian legal system, and the prevailing doctrine today holds this right to derive directly from the law. The ius utile further comprises the right to intervene in case of the renewal or suppression of the benefice and to administer the temporal goods, if this is so established in the foundation tables.
The ius onerosum is concretized in the duty to watch over and defend the object of the right of p. Can. 1469 thus summarizes it: 1) to warn the Ordinary if he believes that the goods of the Church or of the benefice are in danger of being squandered, without however meddling in the administration of those goods; 2) to rebuild the destroyed church or to carry out the repairs deemed necessary by the Ordinary, if the original title is that of edification and if the burden of rebuilding or repair does not fall on others in accordance with can. 1486; 3) if instead the original title is that of endowment, to make up for the revenues if they are no longer sufficient to provide for a decent exercise of worship or conferral of the benefice.
During the period of destruction or deterioration of the church or of the dwindling of revenues, the exercise of the right of patronage remains suspended, and, in the event of refusal with inaction on the part of the patron to fulfill his obligations within the term established by the Ordinary, the right itself ceases to exist.
In this case too the discussion has arisen as to whether the holder is bound to fulfill his obligations as a donor or as holder of the right of patronage: the second opinion prevails.
V. EXTINCTION OF THE RIGHT
The right of patronage is extinguished by subjective causes and by objective causes. The subjective causes are: 1) extinction of the family, the gens, the line, to which the right is reserved by the tables of foundation in the case of personal patronage; 2) total or partial renunciation by the patron of his right, provided that the renunciation does not prejudice the other possible co-patrons; 3) crime of the patron, namely simoniacal sale of the right, apostasy, heresy or schism, unjust usurpation or detention of goods and rights of the church, homicide or direct or indirect mutilation of the rector or of the clergy assigned to the service of the church or of the beneficiary, after the declaratory sentence: in which last case, unlike the preceding ones, the right is extinguished also for the heirs of the guilty party (can. 1470 § 2).
The objective causes are: 1) deterioration of the thing, in the case of real patronage; 2) revocation of the right or suppression in perpetuity of the church or of the benefice by the Holy See; 3) non-rebuilding or repair of the thing by the patron within the term established by the Ordinary; 4) union of the church or of the benefice with another of free conferral or transformation of the church into an elective or regular one with the consent of the patron (can. 1470 § 1 n. 5).
VI. THE RIGHT OF PATRONAGE IN ITALIAN LAW
The legal nature of this institution is much debated in Italian ecclesiastical law. Some hold that it is a public subjective ecclesiastical right, inasmuch as it entails a participation of the patron in the exercise of ecclesiastical jurisdiction; others have held that it is an honorary personal right; still others that it is a private right of obligation, deriving in good part from the right to maintenance. It is evident, however, that the right to maintenance does not characterize the right of patronage, but constitutes only a remote and merely contingent consequence. The first opinion is prevalent and more in keeping with reality.
Without any need to enter into an examination of the value of canon law in the Italian legal order, the efficacy of the law of the Church in matters of patronage is evident. In the Italian Civil Code there is no trace of norms regulating this institution; however, art. 2 of the law of 9 April 1850, no. 1013, assigned to the competence of the Italian judicial authority cases concerning active and passive appointment to ecclesiastical benefices, while the law of 29 May 1855, no. 878, and that of 15 Aug. 1867, no. 3848, established the devolution, in favor of the holders of the right of patronage at the time of the publication of the law on abolition, of the ownership of the goods belonging to benefices (right of reclamation) and to chaplaincies subject to lay patronage (right of release).
Following the Lateran Pacts, although the right of reclamation and of release was not modified, and some disputes over such rights were still pending, with the circular of 31 Oct. 1930, no. 3719, the Ministry of Finance recommended to the Finance Intendancies that in all measures relating to legal relationships constituted under the regime of the eversive laws and which still had to be regulated by those laws, administrative action should be informed «by the animating spirit of the Pact, that is, absolute harmony between the State and the Church, and by the goal common to both, that is, the good of the population made up of the faithful who are also subjects».
VII. THE ROYAL PATRONAGE
The royal patronage has particular characteristics, especially with regard to Italian ecclesiastical law. The Council of Trent, which had abolished rights of patronage originating from privilege and not from law, made an exception for rights instituted in favor of sovereigns: thus the royal patronage was preserved, which differed from the common patronage because it could also be exercised over major benefices and attributed to the holder only the right of presentation and certain prerogatives over guarantees; it was exercised by the king in representation of the Italian State. In fact, however, this right, while at first it was not even exercised, was later implemented through the appointment, proposed by the Ministry of Justice, of the person who officially appeared acceptable to the ecclesiastical authority; after the appointment the interested party requested the exequatur, which was granted by royal decree. With art. 25 of the Concordat the Italian State renounced the sovereign prerogative of royal patronage over major and minor benefices.
Bibliography12 works
Giulio Pacelli