101. On Benefices in General

1. A parish being vacant for nine months, without the Bishop, the Ordinary of the place, conferring it upon anyone, the Archbishop, in order to supply his negligence, confers it as devolved to himself. — Does he do this by right?

R. In the negative. For inferior collators must confer benefices within six months; otherwise the collation for that turn is devolved to the immediate superior. Wherefore, if the Bishop is negligent in the collation of a benefice, it is devolved to the Metropolitan, c. 2, de Concess. Praeb., c. 41, de Election., Riganti on Rule 9, § 3, n. 133. But exempt churches, parishes, and benefices resigned into the hands of the Ordinary are excepted. These are immediately devolved to the Roman Pontiff.

Within six months; but if they are parochial benefices reserved to the Holy See, Bishops are bound, within four months from the day of vacancy, to indicate to the same Holy See the more suitable persons; and, if they are of the right of patronage, they cannot defer institution beyond two months from the day of presentation. Otherwise the complete disposition of them remains reserved to the Holy See, yet with the faculty granted to the patron, if the parochial benefice is of the right of patronage, “for obtaining institution, to have recourse to the Metropolitan or the nearer Ordinary, or to the Apostolic See.” St. Pius V, Constitution In conferendis, 18 March 1567, § 4; D’Annibale, ed. 3, pt. 3, nn. 31, 35.

2. A benefice being vacant, its patron, for the space of a month as it passed, neglects to present a candidate to the Bishop. The Bishop then freely confers the benefice within a month. But the patron protests. Does he do so by right?

R. By right. For if a lay patron presents no one within the space of four months after the vacancy of the benefice, and an ecclesiastical patron within the space of six months, the benefice is conferred absolutely by the prelate, by devolved right. The Bishop, however, can, from the devolution made to him, prolong the time for conferring the benefice for six months. But in the case only a month had elapsed. Therefore the patron protests by right. Riganti on Rule 42; D’Annibale, ed. 3, pt. 3, n. 30.

Except, however—and perhaps the case was such—if the benefice became vacant by resignation. For if the resignation was not made into the hand of the Pontiff, he who accepted it, namely the Ordinary of the place, must either reject it or confer the benefice, whatever it may be, even one of lay patronage, within a month, although it became vacant in a pontifical month, provided only that it is not reserved under another head. But he upon whom the benefice has been conferred must take possession of it within three months from the day of collation. And if either the collator delays provision, or the one provided delays possession, in the former case the provision is devolved to the Holy See; in the latter the benefice is vacant by that very fact. Gregory XIII, Constitution Humano vix iudicio, 5 January 1584, § 7; D’Annibale, loc. cit., n. 58.

3. Bishop A., in good faith, conferred a benefice upon a certain cleric in a pontifical month, namely, one in which the collation of the benefice was reserved to the Holy See. After six years the error is detected. Must the cleric restore the fruits received and leave the benefice?

R. In the negative. For the collation or institution of a benefice, although it was invalid, can nevertheless be ratified by possession for three years from Rule 36 of the Apostolic Chancery, which is entitled De Triennali. This ratification rests 1. upon a colored title of collation or institution made by Apostolic or ordinary power. Wherefore it does not profit those who do not have this title; for example, if someone received a benefice not from the Bishop but from the capitular vicar, or did not leave a benefice received and vacant because an order had not been received in its time. It rests 2. upon peaceful possession. Wherefore again it does not profit those who begin possession by force, or who suffer controversy during the three-year period. But whether good faith is also required, as in prescription, some affirm, because no prescription is given without good faith; others deny, because the rule concerning triennial possession does not require it.

Moreover, from the rule of triennial possession are excepted beneficed clerics entering simoniacally by real and mutually completed simony, and those intruded into benefices reserved in the Body of the Law, that is, vacated in the Curia by death, and also parochial benefices against or outside the Tridentine form. St. Pius V, Constitution In conferendis; Riganti on Rule 36, Pal. tr. 13, d. 2, p. 33, n. 10; La Croix, bk. 4, n. 712; Lugo, de Iust., d. 7, nn. 113, 126; D’Annibale, ed. 3, pt. 3, nn. 48, 49, 50.

Now in the proposed case a colored title of collation was not lacking; for the benefice was conferred by the Ordinary, namely by him in whom resides the ordinary power of conferring benefices. The cleric’s possession was consequently peaceful, continuous, complete, as appears from the case itself, since that defect was detected only after six years. Nor, in the proposed case, was there a simoniacal entrance, nor was there question of a benefice vacant in the Curia by death, nor of a parochial benefice. Therefore the aforesaid cleric is wholly favored, as by a prescription, by the Rule De Triennali in both fora.

4. From the most recent convention entered into between the Holy See and the Spanish Government in the year 1851, it was sanctioned that the right of presenting certain canons to cathedral churches should belong to the civil power. But it sometimes happened that canons thus presented by the Government lacked the qualities required by law. It is most evident then that the Ordinary can in no way confer institution and canonical collation of the benefice upon such men. But juridical proof of unworthiness is often very difficult, both because occult delicts are involved, and because graver crimes cannot be brought forward in a public judgment without disgrace to the ecclesiastical order and scandal to the people.

Question. 1. Whether and how the Ordinary can proceed in the case ex informata conscientia, and thus, the unworthiness of the elect having been made manifest, deny canonical collation of the benefice. — 2. Whether it is lawful for the Bishop to proceed economically in the case. — 3. Whether from a sentence given in the economical process there is an appeal to the Metropolitan in the case.

R. To the first: in the negative. To the second and third: in the affirmative, according to the form of the Instruction of the Sacred Congregation of Bishops and Regulars, 1880; Sacred Congregation of the Council, 9 April 1892. The reason is that, since according to the present discipline Bishops cannot inflict this censure in perpetuity, and, once institution has been denied to a cleric presented by a patron, that penalty would become perpetual as regards exclusion from the benefice, therefore there is need of a summary process according to the cited Instruction. I. M. 1125; M. E., vol. 7, pt. 2, p. 75; E. M. 8.

5. A beneficed cleric having been translated to another benefice, while the fruits of the benefice were already hanging, mature but not yet received, a question was moved between him and his successor, whether those hanging fruits, still to be received, belonged to the present beneficed cleric, or rather to the predecessor, and whether they were to be divided between them.

R. This matter is greatly controverted among doctors. Therefore let the case, with all its circumstances, be set forth to the Sacred Congregation, so that it may be defined by it. A. S. S., vol. 16, p. 79; M. E., vol. 12, p. 317 ff.

But if there were question not of a beneficed cleric translated, but of one deceased, the aforesaid fruits certainly belong to the successor, from the Constitution of Julius III, Cum sicut, 26 June 1550, confirmed by the Constitution of Urban VIII, Aeternus rerum conditor.

6. Osius founded a chaplaincy in a parish church under this resolutive condition: that if by some civil law, or from any other cause whatever, it should be suppressed, the goods would return to the heirs. Now a law was in fact passed for the suppression of ecclesiastical benefices; whence the aforesaid chaplaincy was also in fact suppressed. Hence the heirs of Osius reclaim the goods of the chaplaincy, and do not intend to fulfill the pious burdens annexed to it.

Question. 1. What is a chaplaincy? — 2. What is an ecclesiastical and a lay chaplaincy? — 3. What is to be said in the case?

R. A chaplaincy is the temporal or perpetual right of receiving revenues from goods for the temporal or perpetual celebration of Masses at a certain altar or oratory. If they have been founded with the intervention and authority of the Ordinary, they are ecclesiastical; if without his intervention and authority, they are lay. Ecclesiastical chaplaincies, if they are conferred in perpetuity by the Bishop, are true benefices, and collative. But if they are conferred at the will and discretion of the Bishop, they are called manual benefices. As regards lay chaplaincies, although they must be conferred upon clerics, and these are irremovable, the Bishop cannot involve himself in conferring them, and one must stand by the dispositions of the founder or of the heirs. Schmalzgrueber, bk. 3, tit. 5, n. 8; D’Annibale, ed. 3, pt. 3, n. 71.

Now, since the chaplaincy in the case was founded expressly under the resolutive condition of a law of suppression, when the condition exists, the chaplaincy vanishes, and consequently the burdens annexed to it vanish. Wherefore, although the heirs of Osius can be asked and admonished that they be willing both to preserve the chaplaincy and to fulfill the pious burdens, nevertheless they cannot be obligated. A. S. S., vol. 10, p. 89.

7. Seius, a beneficed cleric, left to his nephew a rich fortune, which he himself had acquired from the fruits of his benefice and from his industrious administration and economy. For five years Seius, although always asked, delayed paying a pension with which the benefice was burdened in favor of Ambrosius, a priest. The benefice has now been conferred upon Augustinus, a priest, from whom Ambrosius claims payment of the pension for the preceding five years, which he could never obtain from Seius. But Augustinus refuses to pay, saying that not he, but the nephew of Seius, is bound to that payment under the title of restitution.

Question. What is to be said in the case?

R. “The question is elegant,” says D’Annibale, Summ., pt. 3, n. 73, note 47, ed. 3, “who, when a beneficed cleric has died, must pay pensions perhaps unpaid by him: the heir, or the successor in the benefice? The far more common opinion burdens the latter, as in taxes from L. 7, de Vectigal. Others deny this, and more rightly, because a pension is part of the fruits, which the beneficed cleric, as if an associate, administered in his own name and in the name of the pensioner. Nor does the cited L. 7 stand in the way, because there the estates themselves are claimed, here the fruits; namely because the fisc has a tacit mortgage in the goods, L. 1, C. In quibus causis pign.” And indeed one must entirely stand by this opinion.

For first, the pension is to be paid each year by the beneficed cleric. Therefore the new beneficed cleric is bound only to pay the pension which corresponds to the fruits received in the first, second, and other years of his possession of the benefice, not of another’s. Therefore no obligation has been imposed upon him of paying a pension owed by another beneficed cleric. With respect to the first and second beneficed cleric, the obligation of the possessor of the benefice is personal, not real. Furthermore, a pension is the right of receiving a certain part of the revenues or fruits from another’s benefice, withdrawn for a time. Therefore a pension does not affect the benefice, but the fruits of the benefice. Therefore the aforesaid obligation, with respect to the first and second possessor of the annual fruits, is a real obligation; and accordingly those fruits pass from the first to the second possessor always bound to the third. Therefore the nephew of Seius, the present possessor of the aforesaid fruits, he alone is bound to restore the unpaid pensions.

That the nephew of Seius is truly the possessor of those fruits is gathered from the obvious sense of the exposition of the case. For that fortune acquired by Seius and left to him is said to have been constituted not only from the fruit of industrious administration and economy, but also from the revenues themselves of the benefice.

8. “Whether the sacristan of a rural church, where the Most Holy Sacrament of the Eucharist is always reserved, is bound to reside there, so that he may daily celebrate the most holy sacrifice of the Mass; or whether he can be absent for five or six days in any month, so that he may attend to other obligations in another church?”

R. “He is bound to residence and to daily celebration of Mass, either by himself or through another priest.” S. R. C., 16 March 1833, Firmana.

9. Iofridus possesses a rich benefice. Since he has a probable hope that he will be promoted to the episcopate or the cardinalate, in which state he sees that he can bring much utility to the Church, he abstains from almost every alms, and reserves for himself the ecclesiastical fruits not necessary for his congruous sustenance, both for acquiring that higher state and for afterwards preserving it, once acquired, with due decorum.

Question. Does he do this licitly?

R. Illicitly. This is clear from the common authority of theologians, who raise the question whether there is an obligation of giving alms from those goods which one needs in order to acquire a better state; and they distinguish between a rich layman and a beneficiary. They indeed affirm that “a layman can keep from patrimonial goods for changing his own state or that of others. ... But Bishops and other ecclesiastics cannot from the goods of a benefice change a state to a higher one for themselves, or for relatives, or for friends, as Corduba well taught, because those goods are not given except for congruous sustenance.” Thus Vasquez, tract de Eleemosyna, c. 4, last dub., n. 14. Thus also Cardinal De Lugo, Resp. Mor., bk. 5, d. 11, who, besides Vasquez, also cites Navarro and Malderus for this doctrine.

Except, however, the case which Cardinal de Lugo himself excepts, namely when those ecclesiastical fruits are not reserved for acquiring an episcopate or another ecclesiastical dignity, but this is to be accepted from elsewhere and proximately; and one lacks the money required for making the necessary expenses.