CANONICAL PROVISION
It is the act by which the competent ecclesiastical authority grants, in accordance with the sacred canons, an ecclesiastical office.
**OUTLINE:**
I. Notion and historical notes
II. Canonical provision in current law
III. Requirements for validity. Free collation. —IV. Election, postulatio, presentation
V. Canonical provision in modern concordats. Italian law.### I. Notion and historical notes
No ecclesiastical office may be validly obtained without canonical provision. This principle, expressly enshrined in the *CIC* (can. 147) and complemented by the further maxim that the Supreme Pontiff reserves to himself the right to reserve for himself the collation or conferral of benefices in the universal Church (can. 1431), summarizes the doctrine steadfastly reaffirmed by the Church through centuries of struggle against external interference.
The dogmatic and logical foundation of this doctrine, by which the Church asserts its exclusive competence in the appointment of holders of ecclesiastical offices or benefices, rests upon the very nature of the Church as a perfect society (that is, in modern public law terminology, as an original order), hence sovereign within its own sphere for the exercise of activities directed toward the attainment of its ends. From this it obviously follows that the Church enjoys full freedom and independence in the appointment of its ministers. The numerous exceptions still admitted in practice today, involving a greater or lesser degree of lay interference in the appointment of parish priests, canons, and bishops, are explained by canonists not as a renunciation of the Church’s right nor as a transfer of it to civil authority, but solely 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, authoritative teaching has stated: this participation of lay power in the exercise of the right of appointment, whatever form and motive the concession may take, is always an act that emanates from the Church and necessarily reverts to it... whatever right or privilege the State may have had or may have over the matter in question is a grace, a favor, a benign concession from the Church. It is necessary, however, to draw a careful distinction between true concession and mere tolerance, the latter occurring when the Holy See, for any just reason, does not protest against a State that in fact exercises a right or privilege it has not obtained from the competent ecclesiastical authority (Cap-pello). Therefore, while historically a positive lay interference may have been possible, not only in the selection of ecclesiastics but also in their investiture, this, according to canonical doctrine, has always occurred through abuse and never because the primitive constitution of the Church permitted II.
From the 6th to the 11th century, lay investiture of ecclesiastics was more or less widely practiced. After the early centuries, during which the Christian Roman emperors already exercised a certain influence in the matter, the collaboration between Church and State came to favor some degree of lay interference in the provision of Church offices. Especially in France, under the Merovingians and Carolingians, the State claimed for itself the right to appoint bishops and abbots, who in turn exercised civil powers as officials of the sovereign. It was only in 1075 that Gregory VII, to uproot the evils of this system and, above all, the simony (q.v.) practiced on a large scale by Emperor Henry IV (q.v.) through the trafficking of bishoprics and abbeys, issued the famous decree that barred laymen from conferring or ecclesiastics from receiving any investiture not made in accordance with canon law. This gave rise to the great Investiture Controversy (q.v.), concluded by the Concordat of Worms (q.v.). At this time, the vote of Chartres developed the noted doctrine (later adopted in the concordat by Callistus II) that distinguished in investiture between the grant of jurisdiction inherent in the office and the conferral of temporal goods attached to II. Famous disputes on the matter continued in subsequent centuries, among others with England, settled through concordats. And the Church subsequently regulated lay interference in the provision of benefices in various States in this manner or through indults, except where such interference occurred without or against the will of the Holy See, in accordance with the various systems of Church-State relations—Gallicanism (q.v.), regalism (q.v.), Josephinism, etc.—inspired by anticurialist doctrines upheld by Marsilius of Padua (q.v.), L. Richer (q.v.), Febronius (J. N. von Hontheim [q.v.]), Van Espen (q.v.), and others.
In practice, it is not always easy to distinguish where true concession ends and mere tolerance begins; where the former has a truly spontaneous character or is justified by a bilateral agreement, and where its origin must be sought in the nebulous antiquity of more or less abusive customs or in more or less overt impositions by civil power. It is certain, however, that the Church has always insisted on making clear that, however much princes or other lay persons may influence the choice and designation of candidates, the actual conferral upon them of the faculty to exercise their mission cannot derive from any other power than His. Thus, for example, the right of appointment of bishops formerly held by various States, and in particular by France, was interpreted as a mere designation: *«Rex Franciae unum nobis nominare, et... per nos... provideri»* (Concordat of 1516: A. Mercati, *Raccolta di concili su materie ecclesiastiche tra la Santa Sede e le autorità civili*, Rome 1919, p. 236).
### II. Canonical provision in current law
The doctrine of the Church governing canonical provision is set forth 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). In this way, the Code reflects the modern concept that distinguishes, in principle, the notion of ecclesiastical office from that of benefice, since there may be, as indeed there are, offices that are non-beneficial. The *CIC* thus sought to react against the systematic approach of earlier doctrine, which tended to conflate the subject of offices with that of benefices and in practice merged them into a single study. Yet since, in fact, the substance of a benefice is the sacred office, which in relation to it is the cause and end (q.V. *BENEFICIO ECCLESIASTICO*), and since canon law does not in any case allow for the conferral of a beneficed office without the conferral of the benefice attached to it, the norms on the provision of office and benefice have come to be largely common and, in any case, closely connected and united, so as to form in practice a unified discipline. The cornerstones of the resulting system do not depart from the traditional teaching of the Church.
Already, pre-Code doctrine, defining provision or canonical provision as *“the complex of acts by which a benefice (or office) is lawfully conferred upon a person capable of holding it,”* distinguished three acts or stages that still underlie current discipline 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 collativa); c) the investiture or giving of possession (possessio datio, investitura).
Of these three phases of ecclesiastical provision, the second (collatio) constitutes the central act, inasmuch as through it the sacred power is truly transmitted, and the incumbent is constituted in the corresponding degree of the hierarchy of jurisdiction. The Church therefore reserves this act to itself as its absolute competence and cannot recognize it as belonging to outsiders or laypersons, although it may permit these to designate, under certain conditions, the person to be provided for or to confer the possession of the benefice. Collatio essentially corresponds to the canonical mission (v.) required for admission into the ecclesiastical hierarchy (can. 109); without it, no validity can be attributed to the designation or imposition of the person, nor to the installation or taking of possession by anyone, regardless of the canonical penalties imposed on those who confer or accept illegitimately (can. 2393-95). Anyone who takes possession of an office without the grant of the competent ecclesiastical authority would be an intruder. Moreover, such intrusion, if effected by violence, becomes incursion.
When 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, depending on whether the benefice is conferred upon the presentation of a patron (v. PATRONATO, DIRITTO di) or through an elective choice by a college.
Except in the case of free collation—where the person is chosen by the same authority that proceeds with the provision, and thus the choice itself is considered merely a formal introduction that does not confer any right upon the designated person prior to the collation—the three acts constituting the provision of the benefice have different effects. According to doctrine, the designation of the person, if validly made, grants to the latter a *ius ad rem* with respect to the benefice; collation, on the other hand, confers a *ius in re*; while installation in possession has only procedural significance. These, however, are concepts that remain debated and which, in any case, fall within the broader question concerning the nature of the right of the ecclesiastical officer over the benefice (v.).
II. REQUIREMENTS FOR VALIDITY. FREE COLLAtion. — For the validity of ecclesiastical provision, certain forms must be observed, along with requirements of various kinds: objective in nature, concerning the competence of the active subjects, and the suitability of the incumbent. An old rule stated: “Ecclesiastical benefices shall be conferred worthily, promptly, gratuitously, each to one person, secular benefices to seculars, regular benefices to regulars, without diminution and lawfully.”
In current law, the matter having been definitively systematized through a complex historical-juridical evolution, the following are required: a) that the office to be conferred be vacant *de iure*, otherwise the provision is invalid. A promise of provision for a future vacancy has no juridical value (can. 150-51). Thus, every base expectation of another’s death was eliminated, abolishing the so-called expectations that were once widespread; b) that two incompatible offices not be conferred. Incompatibility is considered not only in cases where the same incumbent cannot simultaneously fulfill two offices, but also when one of the benefices is sufficient for the honest sustenance of the beneficiary (can. 156, 1439). Here too the norm aims to prevent the abuses produced in past centuries by the accumulation of benefices; c) that no new burdens be imposed on the benefice, except for the right of the ordinary to levy pensions within strict limits (can. 1440, 1429). Moreover, levies on the fruits (annates), indemnities, or tributes stipulated in the act of provision, to the benefit of the collator, patron, or another person, are rigorously condemned as simoniacal (can. 1441); d) that the vacancy of an office not last beyond six months, unless a special term is set by law (can. 155); e) that the provision of any office consist in a written act; f-g-h) that, if it concerns a benefice, the provision be in itself perpetual; that no one confer a benefice upon himself; that the incumbent accept the conferral (can. 1436-38); and finally that secular benefices be conferred only on secular clerics, and religious benefices on religious (can. 1442).
In addition to the objective requirements examined above, others must be met by the authority that must provide for the ecclesiastical provision (active subject) and by the incumbent. Among the latter are, first, the clerical state and priesthood, particularly required for all offices involving the 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, 35 for the master of novices in a religious order, 40 for the supreme Superior of a religious order, for a religious order’s confessor, etc.); to possess the learning necessary to hold the office, to be upright, of honest life, piety, prudence, etc., and to be free from impediments arising either from generic incapacity (lack of use of reason, etc.) or from infamy (v.), censure, or irregularity.
As for the active subjects of ecclesiastical provision, given the principle that this, by its nature, belongs to ecclesiastical authority—which in any case retains the collation of the office even when it is preceded by a designation by third parties—one distinguishes between ordinary and extraordinary collators. The former are prelates endowed with ordinary jurisdiction to whom, by law, belongs the collation of offices or benefices; such are the Pope in the provision of all major benefices and Ordinaries in that of minor benefices within their territory. All others are extraordinary collators, e.g., the metropolitan or another prelate who provides by right of devolution in cases of negligence, fault, or crime during 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 offices in the Church; however, he particularly has the free collation of carabinieri and episcopal offices, as well as other minor dignities and offices for which he has expressly reserved the right to provide. Bishops have the power to freely confer all minor offices in the diocese, including canonries, except for benefices burdened by a right of patronage. Parish priests, on the other hand, lack any power of collation, and their assistants must be chosen by the bishop.
IV. ELECTION, POSTULATION, PRESENTATION
Besides free collation, the other forms of ecclesiastical provision are:1. Election, which is the calling of a suitable person to a vacant office by a competent college of persons. This is the form of provision for the highest office in the Church, the papacy.
The rules for other admitted cases of election are, however, detailed in the particular CIC (can. 160-78). Upon acceptance of the election, the elector acquires the right to the office but must seek confirmation from the Superior (bishop or Holy See) within eight days (can. 175).
2. Postulation, which occurs when a college elects a candidate lacking some requirement or having a dispensable impediment and requests (postulates) the competent Superior to grant confirmation of willingness to accept him nonetheless. It is, in short, a petition for grace, subsidiary to election (can. 179-82).
The 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 (cc. 471 § 2, 525). As regards the case of patronage, see the relevant entry. For presentations not arising from true patronage, based on concordat or other act (such as royal or state nominations), the modalities are to be inferred from the tenor of the indult (cc. 1471). Popular presentations or elections, still in force in some places, are tolerated only when the choice or presentation is made from among three candidates proposed by the bishop (cc. 1452). In any case, the candidate legitimately presented and accepted must receive the necessary canonical institution to occupy the office, which is conferred by the ecclesiastical authority competent for the provision.
The final act of the right of patronage is the installation in possession (q.v.), which is not necessary to perfect the right of patronage itself, since the holder already has full right in rem by virtue of the conferral. It does, however, have essential value in fixing a *terminus a quo* for the effective exercise of the rights pertaining to the incumbent; in particular for the possession of the temporal revenues annexed to the office and for the running of the prescription periods (three years of good-faith possession) in favor of the cleric, should his title be defective (cc. 1446).
V. THE RIGHT OF PRESENTATION IN MODERN CONCORDATS. ITALIAN LAW. — The participation of States and of lay persons in general in the right of presentation, the limits of which have been seen above as admitted by canon law, after having been endured and accepted by the Church through centuries of struggle, in our times is 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 unwarranted or permitted by the Holy See, can in practice be reduced to two opposing manifestations, which have been respectively termed the right of nomination and the right of exclusion. The former involves the positive choice of a person by designating or presenting a suitable candidate so that the Church may grant canonical institution; the latter involves a negative veto excluding a less acceptable person, thereby constituting an incapacity to hold the office or benefice. The most extreme expression of this latter form was the now-suppressed and condemned veto (q.v.) for the election of the Pope. Ancient forms of royal assent, *exequatur* (q.v.), *placet*, etc., were essentially no more than manifestations of the second form, though exercised after provision and therefore not admitted by the Church, which, however, sometimes accepts it, as in the Italian Concordat, in a preventive form.
Referring to the treatments on the various States for historical or positive-law information on the subject, it will suffice here to outline the main features of the system in force in Italy. It is well to recall first how, in pre-concordat law, the State, while in no way considering ministers of worship as its officials, had reserved to itself, in the forms of *exequatur* and *placet*, substantial power of approval over the appointment of holders of ecclesiastical benefices; it took no interest, however, in the appointment of holders of non-beneficial ecclesiastical offices, even in very important ones (e.g., the vicar general). This was based on the concept that ecclesiastical property was in a certain sense the patrimony of the nation, and that therefore, while leaving the Church free to confer its offices, such freedom should be limited when the holders of these offices were at the same time to be administrators of part of the ecclesiastical patrimony.
Even under the Concordat of 11 Feb. 1929, the Italian State, while renouncing any interference in all that pertains to the Church’s purely spiritual activity, reserves to itself a certain power of control over its patrimonial life. It therefore continues to take particular account, among ecclesiastics, only of 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 only their appointment that it concerns itself with. Indeed, by art. 25, the appointment of those invested with major and minor benefices and of those temporarily representing a vacant see or benefice takes effect from the date of ecclesiastical institution, which will be officially communicated to the Government. As before, however, state authorities are not to be informed of any appointment to ecclesiastical offices not united to the administration of a benefice.
Yet while for holders of benefices in general this amounts merely to knowledge of the appointment without the State having any right to intervene in the matter, such a right is recognized for holders of benefices involving real spiritual direction of the faithful, namely bishops and parish priests. The *placet* and *evacuatur*, maintained by the Law of Guarantees for such appointments, are abolished; in their place it is stipulated (Concordat, arts. 19, 21, 24) that the aforesaid beneficiaries are appointed exclusively by the competent ecclesiastical authorities according to Church law (the Holy See for bishops; bishops, as a rule, for parish priests), without the State having any right of proposal, though the requirement of Italian citizenship, common to all beneficiaries, is joined to the requirement that they speak Italian (ibid., art. 22). Subject to these requirements, before proceeding to the appointment—except always for Rome and the suburbicarian sees—the Church must follow these modalities: before appointing an archbishop or diocesan bishop or a coadjutor *cum iure successionis*, the Holy See will communicate the name of the person chosen to the Italian Government to ensure that it has no political objections to the appointment. The relevant procedures will be conducted with the greatest possible speed and confidentiality, so as to maintain secrecy regarding the person chosen until the appointment is made (ibid., art. 19). For the appointment of parish priests, it is simply stipulated that they are to be communicated by the competent ecclesiastical authority to the Italian Government confidentially and cannot take effect before thirty days have elapsed from the communication. Within this period, the Italian Government, if serious reasons oppose the appointment, may privately inform the ecclesiastical authority, which, if disagreement persists, will refer the case to the Holy See. It should be noted that while for bishops it is specified that the Government may raise no objections other than of a political nature, when it comes to the appointment of parish priests objections are admitted for serious reasons of any kind. Once a bishop has been appointed, the State no longer possesses, under the Concordat, any right to propose measures against him. For parish priests, however, should serious reasons arise making the continued tenure of an ecclesiastic in a given parish benefice harmful, the Italian Government will communicate such reasons to the Ordinary, who, in agreement with the Government, will take appropriate measures within three months. In case of disagreement between the Ordinary and the Government, the Holy See will entrust the resolution of the question to two ecclesiastics of its choice, who, in agreement with two delegates of the Italian Government, will render a definitive decision (ibid., art. 21). Here again the Concordat refers generally to serious reasons, without restricting them solely to those of a political nature.
In harmony with the inspirational directives of the above-mentioned norms, by which the State recognizes full liberty to the Church regarding the appointment of ecclesiastical offices—save for the prior communication, for any possible objections, for the appointments of parish priests, bishops and archbishops—the State also renounced in the Concordat the royal patronage over major and minor benefices and every privilege relating to the appointments and provisions of benefices for the palatine clergy (ibid., arts. 25, 29).
Between excess and deficiency. For this characteristic it is called the measure and rule of the other virtues and is therefore rightly considered the first cardinal virtue. Whoever possesses prudence in some way possesses the other virtues as well, but whoever lacks prudence has neither fortitude, nor justice, nor temperance, because without prudence it is impossible to choose correctly the means to attain the end (Sum. Theol. 1a-2ae, q. 65, a. 1).
Psychologically, prudence acts by examining the various means to attain in concreto the ultimate end, judges which of them are to be carried out or omitted, and finally commands the execution that follows; for this reason its acts are said to be deliberation, judgment and especially command (et actus imperandi est principalis et proprius actus prudentiae): ibid., 2a-2ae, q. 47, a. 8).
II. SPECIES
Besides natural prudence, hitherto considered (acquired prudence), acquired through experience and the effort of the soul directed toward the good, there also exists, if one is in the state of grace, infused prudence, which extends even to supernatural acts and directs the theological virtues, to which it is also subordinate, indicating when their acts should be performed.For prudence to be perfect, as an intellectual virtue it requires experience, moral sense, docility, sagacity and good use of reason; as a moral virtue it requires foresight, circumspection and caution. These virtues, which in traditional Latin terminology are called memoria, intellectus, docilitas, solertia, ratio, providentia, circumspectio and cautio, are called by the Scholastics the integral parts of prudence (ibid., 2a-2ae, q. 48, a. un.).
Its specific or subjective parts are: personal prudence (or monastic prudence), which guides one to direct oneself well, and social prudence, which directs the acts of society toward the common good and is subdivided into military, economic or domestic, and legislative or political prudence, according to the different communities and forms of government. Among these, personal prudence is prudence in the full sense; legislative prudence is the most perfect (ibid., 2a-2ae, q. 50, a. 2).
The potential or complementary parts are good moral sense (synesis), moral skillfulness (eubulia) and moral insight (gnome) (ibid., 2a-2ae, q. 51, a. 2, ad 1).
III. ORIGIN AND REMOTE SUBJECT
Natural prudence can be fostered by psychic and biological predispositions and by environment, but in fact it is acquired through the repetition of prudent acts; for this reason it does not, as a rule, exist in the young who lack experience and is lost when passions, especially lust, avarice and pride, disturb the intellect or the will and, indirectly, through disuse. Infused prudence is received and lost with sanctifying grace.IV. CONTRARY VICES
By defect, imprudence is opposed to prudence; it is subdivided into numerous vices such as indocility, negligence, improvidence, lack of foresight, circumspection, memory and the other subjective or integral parts of prudence, as well as temerity (contrary to eubulia) and thoughtlessness, contrary to good moral sense and moral insight. By excess there are the vices of the flesh (Rom. 8:6), cunning and deceit, whether through signs and words (guile) or through actions (fraud).The vices against prudence, St. Thomas observes, if they exceed by defect, have lust as their source; if by excess, avarice (Sum. Theol., 2a-2ae, q. 55, a. 8). Therefore the effective means to attain prudence are: 1) fervent prayer to the God of all light; 2) control of disordered passions, especially avarice and lust; 3) consideration of events sub specie aeternitatis.