CANONICAL PROVISION. — It is the act by which the competent ecclesiastical authority, in accordance with the sacred canons, confers an ecclesiastical office.
SUMMARY:
I. Definition and historical notes
II. Canonical provision in current law
III. Requirements for validity. Free collation. —IV. Election, postulatio, presentation
V. concordats. Italian law.I. CONCEPT AND HISTORICAL NOTES
No ecclesiastical office can be validly obtained without canonical provision. This principle, expressly enshrined in the CIC (can. 147) and complemented by the other maxim according to which the Supreme Pontiff has the right to reserve to himself the collation or conferral of benefices in the universal Church (can. 1431), summarizes the doctrine consistently and vigorously reaffirmed by the Church through centuries of struggle against external interference.The dogmatic and logical foundation of this doctrine, by which the Church asserts her exclusive competence in appointing holders of ecclesiastical offices or benefices, is based on the very nature of the Church as a perfect society (that is, in the terminology of modern public law, an original legal order), and therefore sovereign in her own sphere for the exercise of activities directed toward the attainment of her ends. It obviously follows that she enjoys full freedom and independence in appointing her own ministers. The numerous exceptions still admitted in practice today, involving greater or lesser interference by the secular power in the appointment of parish priests, canons, and bishops, are explained by canonists not as a renunciation of the Church’s right, nor as its transfer to the civil authority, but solely as a concession of the exercise of that right under special conditions and always subject to the approval of the Church herself. In this regard, it has been authoritatively taught: «this participation of the secular power in the exercise of the right of appointment, whatever the form or reason for the concession, is always an act proceeding from the Church and necessarily referring back to her... every right or privilege that the State has had or may have in the matter in question is a grace, a favor, a benevolent concession of the Church. One must, however, carefully distinguish a genuine concession from simple toleration, which exists when the Holy See, for any just reason, does not protest against the State, which in fact exercises a right or privilege that it has not obtained from the competent ecclesiastical authority» (Cappello). Thus, although historically secular interference was possible not only in the choice of ecclesiastics but also in their investiture, according to canonical doctrine this always occurred through abuse, and never because the primitive constitution of the Church entailed II.
From the sixth to the eleventh century, the investiture of ecclesiastics by laymen was practiced to a greater or lesser extent. After the early centuries, during which Christian Roman emperors already exercised a certain influence in this matter, the collaboration between Church and State itself came to foster a degree of interference by the latter in the provision of Church offices. Particularly in France, under the Merovingians and Carolingians, the State claimed for itself the right to appoint bishops and abbots, who, for their part, exercised civil powers as officials of the Sovereign. Only in 1073 did Gregory VII, in order to eradicate the evils of this system, simony (v.) practiced on a large IV (v.) through the trafficking of bishoprics and abbeys, issue the celebrated decree forbidding laymen to confer, and ecclesiastics to receive, any investiture not carried out according to the canons. This gave rise to the great Investiture Controversy (v.), Worms (v.). At this time Ivo of Chartres developed the well-known doctrine (later incorporated into that concordat by Callistus II) that separated, in investiture, the granting of the jurisdiction inherent in the office from the conferral of the temporal goods attached to II. Bitter conflicts in this matter continued in the following centuries, among other places with England, and were later settled by concordats. It was likewise in this form, and through indults, that the Church subsequently regulated secular interference in the provision of benefices in the various States, except where such interference took place 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, and so forth—based on anti-curialist doctrines, Marsilius of Padua (v.), L. Richer (v.), Febronius (G. N. Honthein [v.]), Espen (v.), and others.
In practice, it is not always easy to distinguish where the genuine concession ends and simple toleration begins; where the former is truly spontaneous or justified by a bilateral agreement, and where its origin must instead be sought in the misty antiquity of more or less abusive customs or in more or less overt impositions by the civil power. It is certain, however, that the Church has always taken care to make it perfectly clear that, whatever influence princes or other laymen may exert in the choice and designation of an ecclesiastic, the actual conferral upon him of the faculty to exercise his mission cannot derive from any authority other than hers. Thus, among other things, the right of appointing bishops formerly belonging to the various States, and especially to France, was interpreted as a simple designation: «rex Franciae unum nobis nominare, et... per nos... provideri» (Concordat of 1516: A. Mercati, Raccolta di conc. su materie eccles. tra la S. Sede e le autor. civili, Rome 1919, p. 236).
II. THE CANONICAL PROVISION OF BENEFICES IN CURRENT LAW
The doctrine of the Church governing canonical provision is set out in the CIC in two places: in Book I (De personis), Title IV, Chapter 1, De provisione officiorum ecclesiasticorum (canons 147–82), and in Book III (De rebus), Title XXV, Chapter 3, De beneficiorum collatione (canons 1431–47); thus following the modern concept that distinguishes in principle the notion of ecclesiastical office from that of a benefice, since there may be, and indeed are, offices that are non-beneficial. In this way the CIC sought to react against the systematization of the earlier doctrine, which tended to make the subject matter concerning offices coincide with that concerning benefices and in practice merged them into a single study. Nevertheless, since in fact the substratum of the benefice is the sacred office, which indeed, in relation to the former, has the character of cause and end (v. BENEFICIO ECCLESIASTICO), and since, moreover, in canon law there is no conferral of a beneficed office without the conferral of the benefice attached to it, the rules on the provision of the office and of the benefice prove to be largely common and in any event closely connected and joined, so as practically to form and merge into a single discipline. The fundamental principles of the system resulting from the relevant rules do not depart from the Church’s traditional teaching.The doctrine ante codicem, already defining provision as “the complex of those acts by which the benefice (or office) is lawfully conferred upon a person capable of possessing it,” distinguished therein three acts or stages which still form the basis of the current discipline, identified as follows: a) the choice or determination of the person (designatio personae); b) the conferral of the title or office, with the corresponding powers and rights (collatio; institutio tituli collatica); c) installation in possession, or investiture (possessionis datio, investitura).
Of these three stages of canonical provision, the second (collatio) constitutes its central act, since through it sacred power is truly transmitted, and the holder is constituted in the corresponding degree of the hierarchy of jurisdiction. The Church therefore reserves it to herself as a matter within her exclusive competence and cannot recognize it in outsiders or laypersons, whereas she may permit them, subject to certain conditions, to designate the person to be provided for or to give that person possession of the benefice. The collatio essentially corresponds to the canonical mission (v.) required for admission into the ecclesiastical hierarchy (canon 109): without it, no value can be attributed either to the designation or imposition of the person, or to installation or taking of possession by whomever carried out, independently of the canonical penalties established for anyone who unlawfully confers or accepts it (canons 2393–95). Anyone who took possession of the office without the grant of the competent ecclesiastical authority would be guilty of intrusio. Intrusio, if carried out by force, then becomes invasio.
If the ecclesiastical Superior, together with the conferral, also has the choice of the person, there is a “free” collation; otherwise, a “necessary” collation, also called institution, confirmation, or admission, depending on whether the benefice is conferred upon presentation by a patron (v. PATRONATO, DIRITTO di) or following an elective choice by a college.
Except in the case of free collation—in which the person is chosen by the same authority that carries out the canonical provision, and therefore the choice itself is regarded merely as an introductory formality that confers no right upon the designated person before the collation—the three acts constituting the provision of the benefice have differing effects. According to the doctrine, the designation of the person, if validly made, grants that person an ius ad rem with respect to the benefice; the collation, on the other hand, confers an ius in re; while installation in possession has only procedural significance. These, however, are concepts over which there is controversy and which in any event 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 canonical provision, various requirements are necessary, with observance of certain formalities: some objective, some pertaining to the competence of the active parties, and others to the suitability of the appointee. An old rule stated: «Beneficia ecclesiastica dignioribus, statim, gratis, singula
singulis, saecularia saecularibus, regularia regularibus, sine diminutione et legitime conferantur.
Under the law currently in force, the matter having been definitively organized through a complex historical and juridical development, the following are required: a) that the office to be conferred be legally vacant, on pain of invalidity of the provision. A promise concerning an imminent vacancy has no legal value (cann. 150–51). The purpose was thus to eliminate every turpem expectationem mortis alterius, abolishing the so-called expectations, which in ancient times were very widespread; b) that two incompatible offices not be conferred. Offices are considered incompatible not only when they cannot be simultaneously fulfilled by the same holder, but also when they are two benefices, one of which is sufficient for the beneficiary’s honorable support (cann. 156, 1439). Here too, the rule is intended to prevent the abuses produced in past centuries by the accumulation of benefices; c) that no new burdens be imposed on the benefice, without prejudice to the ordinary’s right to levy pensions within strict limits (cann. 1440, 1429). Deductions from the revenues (annates), or indemnities or taxes stipulated at the time of the canonical provision for the benefit of the collator, patron, or another person, are also rigorously condemned as simoniacal (can. 1441); d) that the vacancy of an office not last beyond six months, unless a different special period is established by law (can. 153); e) that the provision of any office be evidenced by a written document; f–g–h) that, when a benefice is concerned, the provision be perpetual in itself; that no one confer a benefice upon himself; that the appointee accept the conferral (cann. 1436–38); and, finally, that secular benefices be conferred only upon secular clerics, and religious benefices upon religious (can. 1442).
In addition to the objective requirements examined thus far, other requirements must be present both on the part of the authority responsible for making the canonical provision (the active party) and on that of the person being invested. Among the latter are, first of all, the clerical state and the priesthood, required in particular for all offices involving the care of souls. It is also necessary to have attained the minimum age required for various offices (thus, 30 years for a bishop, vicar general or capitular vicar, etc.; 35 for the master of novices of a religious institute; 40 for the supreme superior of a religious institute, the confessor of religious women, etc.); to possess the knowledge necessary to hold the office; to be upright, of honest life, pious, prudent, etc.; and not to be disqualified by impediments arising either from general incapacity (lack of the use of reason, etc.), infamy (v.), censure, or irregularity.
As for the active parties in canonical provision, given the principle that by its nature this 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 prelates endowed with ordinary jurisdiction who, ex iure, are entitled to confer offices or benefices: 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 the others are extraordinary collators, for example, the metropolitan or another prelate who makes the provision by devolutive right in cases of negligence, fault, or crime in the course of an ordinary provision. The general rule is that all offices are subject to 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 offices of the Church; in particular, however, free collation of the cardinalates and episcopal offices belongs to him, as does that of other minor dignities and offices for which he has expressly reserved the right of provision. Bishops have the power freely to confer all the minor offices of the diocese, including canonries, except for benefices encumbered by a right of patronage. Parish priests, on the other hand, possess no power of collation whatsoever, since their coadjutors 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 appointment to a vacant office of a suitable person by a college competent to do so. This is the form of provision for the highest office in the Church, the pontificate.
The rules governing the other permissible cases of election are instead laid down in detail by the CIC (cann. 160–78). Upon accepting the election, the person elected 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 who lacks some qualification or is subject to some dispensable impediment, and requests (postulates) that the competent Superior, by granting confirmation, agree to accept him nonetheless. It is, in short, a request 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 appointment granted in concordats or otherwise, and in other special cases (cann. 471 § 2, 525). As regards patronage, V. la voce relativa. For presentations not based on true patronage, but on a concordat or other act (such as royal or state appointments), the procedures inferred from the wording of the indult apply (can. 1471). Popular presentations or elections, still in force in some places, are tolerated only when the selection or presentation is made from among three candidates proposed by the bishop (can. 1452). In every case, the candidate lawfully presented and accepted must receive the canonical institution necessary to occupy the office; the authority competent to grant it is the same ecclesiastical authority responsible for the provision.
The final act of the provision, induction into possession (v.), is not necessary to perfect the provision itself, since by virtue of the collation the holder already possesses planum ius in re. It does, however, have essential significance in establishing a terminus a quo for the actual exercise of the rights belonging to the person invested; in particular, for possession of the temporal revenues attached to the office and for the running of the periods of prescription (three years’ possession in good faith) in favor of the cleric, should his title contain defects (can. 1446).
See CANONICAL PROVISION IN MODERN CONCORDATS. ITALIAN LAW. — The participation of States and laymen in general in canonical provision, within what limits it may be admitted by canon law, as was seen above, after being endured or accepted by the Church through centuries of struggle, is in our time normally regulated by concordat agreements which at least in part abolished the old institutions through which jurisdictionalist regimes had more or less forcibly imposed their interference. The content of such interference, whether undue or admitted by the Holy See, may in practice be reduced to two opposing manifestations, designated respectively as the right of appointment and the right of exclusion. The former positively affects the choice of the person, through the designation or presentation of a suitable candidate, so that the Church may grant him canonical institution; the latter does so negatively, in the form of a veto excluding a less welcome person, thereby creating for that person an incapacity to hold the office or benefice. The greatest expression of this latter form was veto (v.) in the election of the Supreme Pontiff. The ancient forms of royal assent, EXEQUATUR E PLACET (v.), placet, etc., were essentially nothing more than manifestations of the second form, though exercised after the provision and therefore not admitted by the Church, which at times accepts it instead, as in the case of the Italian Concordat, in a preventive form.
Leaving to discussions concerning the various States the historical or positive-law information on the subject, it will suffice here to outline the principal features of the system currently in force in Italy. It should first be recalled that, under pre-concordat law, the State, while in no way regarding ministers of religion as its officials, had reserved to itself, through the forms of the exequatur and placet, a substantive power of approval over the appointment of holders of ecclesiastical benefices; it was instead unconcerned with the appointment of 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 national property, and that therefore, while leaving the Church free to confer its offices, that freedom had to be limited whenever the holders of those offices were at the same time to be administrators of part of the ecclesiastical patrimony.
Also under the Concordat of 11 February 1929, while the Italian State renounces any interference in everything concerning the Church’s activity in purely spiritual matters, it reserves a certain power of control over its patrimonial life. It therefore continues to take particular account among ecclesiastics only of 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 it is concerned only with their appointment. In fact, under art. 25, the appointment of holders of major and minor benefices and of those who temporarily represent a vacant see or benefice takes effect from the date of the ecclesiastical provision, which shall be officially communicated to the Government. On the other hand, now as previously, the State authorities are not to receive notification of any appointment to an ecclesiastical office to which the administration of a benefice is not attached.
However, whereas in the case of holders of benefices in general there is simply a matter of knowledge of the appointment, without the State having the right to intervene in the matter, that right is instead recognized to it in the case of holders of benefices involving a real power of spiritual direction over the faithful, namely bishops and parish priests. The placet and the exequatur, already retained by the Law of the Guaranties for such appointments, are abolished; in their place it is established (Concordat, arts. 19, 21, 24) that the said beneficiaries are appointed exclusively by the competent ecclesiastical authorities according to the law of the Church (the Holy See for bishops; bishops, as a rule, for parish priests), without the State having any right of proposal, while, in addition to the requirement of Italian citizenship common to all beneficiaries, they must speak the Italian language (ibid., art. 22). Subject to these requirements, in order to proceed with the appointment, the Church must also (always excepting Rome and the suburbicarian sees) follow the following procedures: before appointing an archbishop or a diocesan bishop or a coadjutor cum inca successionis, the Holy See shall communicate the name of the person selected to the Italian Government in order to ascertain that it has no political reasons to raise against the appointment. The relevant proceedings shall be conducted with the greatest possible promptness and with complete discretion, so that secrecy concerning the person selected may be maintained until that person is appointed (ibid., art. 19). For the appointment of holders of parish benefices, it is instead simply provided that such appointments are confidentially communicated by the competent ecclesiastical authority to the Italian Government and may not proceed until thirty days have elapsed from the communication. Within this period, if serious reasons oppose the appointment, the Italian Government may confidentially communicate them to the ecclesiastical authority, which, if the disagreement persists, shall refer the matter to the Holy See. It should be noted that, whereas in the case of bishops it is specified that the Government may raise no objections other than those of a political nature, in the case of the appointment of parish priests objections based on grave ragioni of any kind are admitted. Once a bishop has been appointed, the State, under the terms of the Concordat, no longer possesses any right to propose measures against him. In the case of parish priests, however, should serious reasons arise making the continued presence of an ecclesiastic in a particular parish benefice harmful, the Italian Government shall communicate those reasons to the Ordinary, who, in agreement with the Government, shall take the appropriate measures within three months. In the event of disagreement between the Ordinary and the Government, the Holy See shall entrust the resolution of the matter to two ecclesiastics of its choice, who, in agreement with two delegates of the Italian Government, shall take a definitive decision (ibid., art. 21). Here too the Concordat refers generally to serious reasons, without limiting them solely to those of a political nature.
In harmony with the principles underlying the foregoing provisions, under which the State recognizes full freedom to the Church concerning the provision of ecclesiastical offices—subject to prior communication, for any objections it may have, in the case of the appointment of parish priests, bishops, and archbishops—the State also renounced in the Concordat the royal patro-
patronage over major and minor benefices and every privilege relating to the appointments and provisions of benefices connected with the palatine clergy (ibid., arts. 25, 29).
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