102. On Bishops

1. The Bishop of Parma, having instituted a universal heir, bequeathed to the Bishop of Parma pro tempore a cross with gems, a precious ring, and a pastoral staff; to the archpriest a cross with a gold chain; to the lord rector of the seminary a white chasuble; to the seminary of Parma one half of the sacred vestments, and the other half to the seminary of Berceto; to the Vicar General a silver chalice; to the secretary a precious stole. The Bishop testator says further that all the gold and silver utensils and sacred vestments were in his ownership, that is, either received by gift or acquired with his own money, by no means from the revenues of the Church. Moreover it is asserted that the deceased Bishop had spent in alms and other pious works during ten years more than he had received from the mensa in as many years. But the council of the Fabric of the cathedral church did not judge these legacies of the Bishop to be valid, thinking that the right of spoil belonged to itself over the whole sacred furnishing of the Bishop, or, as it is called, over the Bishop’s chapel. Hence:

Question. Whether, and what, sacred furnishing was validly bequeathed by testament in the case?

R. “In the affirmative in all things and more.” S. C. C., 19 January 1884. The reason is that by chapter 1, de Testam., it has been granted to clerics to make a testament concerning all things which do not have the nature of ecclesiastical revenues. This is confirmed by chapter Quia nos, 9, same title; final chapter, de Pecul. cler.; Constitution of St. Pius V, Romani Pontificis, as Navarrus, de spol. cler., § 1, n. 4; Bursatus, cons. 377, n. 28, § Attamen; Barbosa, bk. 3, c. 17, n. 62; Azor, Inst. moral., t. 2, bk. 8, c. 3, p. 11; Panimolus, decis. 20, annotation 1, n. 11; Ventriglia, etc., teach. And this is certain today from the Constitution of Pius IX, Quum illud, 1 June 1847. For in it it is decreed that there are not owed to cathedral churches all those utensils which were procured with goods not belonging to the church, and which are not proved to have been given to the church.

Furthermore, certainly no one would say that faith can be denied to the affirmation of the Bishop. For there is question of a Bishop, and the Supreme Pontiff himself in his Constitution Quum illud wishes the deposition of Bishops in this matter to be admitted for truth. Moreover, that charity of the Bishop, which exceeded the revenues of the episcopal mensa, excludes the hypothesis that that sacred furnishing was bought with the revenue of the mensa, c. Cum in officiis, 7, de Testam.; cf. Ferraris, v. Spolium; and therefore it was exempt from spoil in favor of the Fabric of the Cathedral.

As regards spoil, however, it must be noted that clerics by Canon Law are deprived of the faculty of making a testament as regards the superfluous goods of their benefices; although they can make a testament concerning their patrimonial, industrial, and parsimonial goods. For while they live, they are bound by precept of the Church to expend the former upon pious works. cc. 1, 7, 8, 9, 12, de Testam. Now the superfluous goods of benefices left by a cleric were called spoils, which formerly belonged to the church in which the cleric had obtained the benefice, from c. 7, de Testam. This discipline, set aside for some time, was restored to force by Trent, sess. 25, c. 1, de R., and by several Roman Pontiffs. It was established, however, that the superfluous goods of benefices, concerning which clerics cannot make a testament, should yield and be applied by right of spoil to the Apostolic Camera. Also things acquired illicitly by clerics through trading are subjected to the penalty of spoil. Benedict XIV, Constitution Apostolicae servitutis, 25 February 1741; Acta S. Sed., vol. 16, p. 460 ff.

2. A regular Bishop, gravely sick with an illness from which he afterwards died, several months before his death repeatedly said to his nephew, in whose house he was sick and who had deserved exceedingly well of the Bishop himself: “You are lord of all that I have; it displeases me that they are few,” adding that he had some sum of money. Hence, two or three days before the death of the Bishop, the said nephew took from his chest, from the moneys which were found there, about a thousand scudi, no word having been made about this with the Bishop, whose remaining moneys and movable goods, after he had died, were taken under the name of spoil by the ministers of the Apostolic Camera.

Question. 1. Whether such a religious is exempted from the vow of poverty and is made true owner of ecclesiastical revenues like secular Bishops. — 2. Whether it is open to religious Bishops to make a testament concerning patrimonial goods, or goods acquired by their own industry, in the way in which this is lawful for secular Bishops. — 3. Whether the nephew of the Bishop could in safe conscience receive and retain those moneys.

R. To the first. The first opinion, which several theologians hold, affirms; and Sanchez says that it is probable, loc. cit., in decal., c. 6, nn. 7, 13. The second opinion, which far more theologians hold, denies. Wherefore according to this opinion that religious Bishop is made only administrator of ecclesiastical revenues. Sanchez says that this opinion is most true, loc. cit., n. 8. “A regular Bishop,” says Cardinal De Lugo, Resp. Mor., bk. 5, dub. 1, n. 3, “although he has free administration of his revenues, nevertheless does not have ownership of them, according to the more common opinion.” “A religious who becomes a Bishop,” says St. Thomas, II-II, q. 88, a. 11, ad 4, “as he is not absolved from the vow of continence, so neither from the vow of poverty, because he ought to have nothing as his own, but as dispenser of the common goods of the Church; similarly also he is not absolved from the vow of obedience, but by accident he is not bound to obey if he has no superior, as neither is the abbot of a monastery, who nevertheless is not absolved from the vow of obedience.”

To the second. Some affirm, because just as for making a donation in life the mere free administration of goods suffices, so also the same suffices for giving in death. Sanchez says that this opinion is probable, loc. cit., n. 10. But others, far more numerous, among whom is Sanchez himself, loc. cit., openly deny that it is open to them to make a testament. “The reason is that the paternal inheritance and whatever else a religious Bishop acquires from any source whatever, he acquires for his church with free administration only, as is clear from the single chapter, 18, q. 1. ... But administration is ended by death, from which the testament begins to have force. Therefore it is not open to him to dispose after death, which is done by testament.” Sanchez, loc. cit. “A donation on account of death,” says Cardinal De Lugo, loc. cit., n. 6, “can no more be made by a regular Bishop concerning goods quasi-patrimonial than concerning goods acquired from the fruits of the church, just as neither can a testament be made by him concerning any goods, even for pious causes, as we have reported above from the common opinion of the doctors with Thomas Sanchez.” “To the third,” says St. Thomas, II-II, q. 185, a. 8, “it must be said that it is by accident that religious Bishops are not bound to obey the prelates of their religions.... But they can in no way have property. For they do not claim a paternal inheritance as their own, but as owed to the church.... But he can in no way make a testament, because only the dispensation of ecclesiastical things is committed to him, which ends with death, from which a testament begins to have force, etc.” E. M. 252.

To the third. The difficulty in the case comes from the aforesaid words: “You are lord of all that I have; it displeases me that they are few,” which do not seem to signify a present donation, or certainly do not seem to signify a donation inter vivos, but only a donation mortis causa. But this cannot be made by a regular Bishop, just as neither can a testament be made, even for pious causes, since this kind of disposition is forbidden to all regulars, even if they are Bishops, whether there is question of goods acquired from the fruits of the church, or of other goods quasi-patrimonial. I. M. 252, 281.

Nevertheless the aforesaid words probably contain a donation inter vivos, which the aforesaid Bishop could make, both from quasi-patrimonial goods, namely from stipends which the aforesaid Bishop truly received for personal labor, and also from the superfluous fruits of the church, since that nephew was poor, had several children, and had a marriageable daughter whom he could not place honorably in marriage. I. M., vol. 1, n. 870.

That those words contain a donation inter vivos made to the nephew can be proved first from the obvious and natural sense of those words, which otherwise would signify nothing. The proper sense of those words is this: I give you what is found at my home as mine, and I would wish that more things were found. Since, however, the aforesaid donation was made several months before death, there is no indication that it was made mortis causa. Moreover, although a donation is not presumed of itself, L. Cum de indebito, ff. de Donationibus, nevertheless when merits have preceded, a donation is presumed from the cause of remuneration, L. Si vero non remunerandi, par. Inde Papinianus, ff. Mandati. But extraordinary merits on the part of the nephew preceded in the case; for he is said to have deserved exceedingly well of the Bishop, and the Bishop was living and was sick in his house. Hence there certainly were not lacking many things done in favor of the Bishop. Besides, delicts are not to be presumed. And since a regular Bishop cannot give mortis causa, nor is the Bishop presumed to have been ignorant of this, he is to be presumed to have given in a wholly licit manner, which alone was the manner of giving inter vivos. Finally, as regards the nephew, since he certainly received that sum of 1,000 scudi in good faith, he cannot be despoiled of it, since in doubt the condition of the possessor is better. — Lugo, Resp. Mor., bk. 5, d. 1.

3. The Bishop of Vilnius gave to a suffragan Bishop the faculty of exercising in the city and diocese of Vilnius whatever he himself could exercise, which faculty the suffragan Bishop used while the Bishop of Vilnius was living. But when this Bishop had died, the aforesaid suffragan Bishop doubted whether, by virtue of the aforesaid faculty, not revoked by the chapter and afterwards by the Bishop successor, without the new consent of the chapter and afterwards of the Bishop successor, he could still exercise pontificals and confer orders upon those having lawful dimissorial letters of their prelates, especially if the chapter, and afterwards the Bishop successor, saw this and did not contradict it.

Question. What is to be said in the case?

R. He could not. This is clear 1. from the negative response given to a similar question by the Sacred Congregation of Cardinals interpreting the Council of Trent, 22 February 1631, of which Cardinal De Lugo makes mention, Resp. Mor., bk. 1, d. 32. — 2. From the fact that, although the common doctrine is that licenses and faculties granted by a predecessor without limitation endure after the death of the one granting until they are revoked by the successor, nevertheless this special license and faculty, in the case, includes a certain notion of dominion in another’s house. But on account of the reverence which every guest owes to the lord in his own house, it is equitable that a guest in another’s house not conduct himself as lord without the consent of the new lord, even though he had obtained that license from the predecessor; for reverence is personal, owed to the successor, which the predecessor cannot take away from him, even if he grants the amplest faculty that someone should conduct himself in his house as lord. Therefore. Lugo, loc. cit.

4. A Bishop, for certain and just causes, prohibited parish priests from permitting Masses to be celebrated in their churches by regulars, unless they had license from the Bishop. Did the Bishop act by right?

R. In the affirmative. Thus Cardinal Lugo, Resp. Mor., bk. 5, dub. 25, who brings forward this twofold reason. The first reason is that the faculty of celebrating everywhere which regulars have does not give a right of compelling the lord, against his will, that they may celebrate in his house and in his oratory, which he has approved by the Bishop. Since, therefore, secular churches are under the dominion or free administration of the secular clergy, regulars do not seem to have the right that, against the will of the secular clergy, they may still celebrate in churches of this kind belonging to them. Wherefore the Bishop, who is the supreme parish priest in the whole diocese, does not inflict injury upon regulars if he is unwilling to lend his churches to regulars for celebrating.

The other reason is that religious themselves are not bound to admit into their churches for celebrating all secular clerics who may wish to celebrate there. Therefore there would be an odious inequality if that which secular clerics could not do in a church of regulars without their license, regulars could do in a secular church while the secular clergy resisted.

5. On the same night on which the Bishop of the diocese B. was dying, a canon, a major dignity of the cathedral church, died after several hours. The Vicar General of the deceased Bishop, continuing in the governance of the diocese before the capitular vicar was elected, conferred that dignity.

Question. 1. What is the jurisdiction of the Vicar General, and how long does it last? — 2. What is to be said in the case?

R. To the first. In those matters which are of jurisdiction, the Vicar General performs the office of the Bishop and uses his jurisdiction, even in the internal forum. In this matter the person of each is one and the same, and the tribunal of each is one. Hence, when the Bishop is removed by death, renunciation, translation, captivity, etc., every right and name of the vicar at once ceases; and when he is suspended, the jurisdiction of the vicar also is suspended. Clem. ult., de Procurat.; c. 1, de Off. Vic., in 6.

Nevertheless the jurisdiction of the Vicar General does not extend 1. to extraordinary business, as would be the alienation of goods; 2. to those things which the Bishop is not easily presumed to grant, unless perhaps he is absent far away and for a long time, such as to confer benefices, to suppress, divide, or unite them, to give dimissorial letters to those to be ordained, to dispense in doubtful matrimonial impediments; 3. to those things which pertain to the power of order, although the Vicar General has been consecrated Bishop. c. 3, de Appell., in 6; c. 2, de Const., in 6; c. 2, de Consuet., in 6; c. ult., de O. V., in 6; cc. 2, 3, same title; c. 81, de R. I., in 6; c. 3, de Temp. ord., in 6; Benedict XIV, de Syn., 2, 8, 1; D’Annibale, ed. 3, pt. 1, n. 96.

To the second. Illicitly and invalidly did the Vicar General confer the benefice in the case, because by the death of the Bishop his whole jurisdiction ceased. Moreover, even if his jurisdiction had continued, the Vicar General does not have this power of conferring benefices, but the Bishop does, who confers them by his ordinary right. Without a special mandate the Vicar General cannot confer benefices, namely those which pertain to the free collation of the Bishop alone. Furthermore, the benefice to be conferred in the case was reserved to the Supreme Pontiff, both because it became vacant while the episcopal see was vacant, and because there was question of a major dignity of the cathedral church, provided its revenues exceeded ten gold aurei of the Camera. D’Annibale, ed. 3, pt. 3, nn. 32, 33.