Title VII: On the Grant of a Prebend or Church Not Vacant

If it is commanded that provision be made for someone from a dignity to become vacant that he decides to accept, and a dignity becomes vacant that the ordinary confers before the acceptance, his collation has force, even if the applicant's executor, before the acceptance, made a reservation, prohibition, and proceedings concerning the first dignity to become vacant. John Andrew.

Innocent IV, to his beloved son Andrew, our chaplain.

Because to all—(And below:) It was therefore proposed on your behalf that, since the aforesaid provostship, while it was vacant, had been conferred upon you by the person who was able to confer it, a collation of this kind was canonical, especially since no prohibition by the prior himself that could impede it had preceded it.

The opposing party, however, said that, since the aforesaid letters had been published in the chapter while the See of Chartres was vacant, and the aforesaid bishop was then a member of that chapter and was present there, he could not have been ignorant that an apostolic mandate had been directed to another person concerning the conferral upon the aforesaid D. of a prebend or dignity without cure that he himself should decide to accept, when one first became vacant in the aforesaid church. Thus, consequently, the faculty of conferring a dignity of this kind had been taken away from the bishop. For this reason it appeared that neither personally nor through another could he have conferred upon any person the aforesaid provostship, which did not have the cure of souls annexed and was the first to become vacant in the aforesaid church after the mandate, especially since the said prior, immediately after the same mandate was published, had conferred upon the aforesaid D. the prebend or dignity without such cure that should first happen to become vacant in that church. Nor, as was alleged, could the bishop's ignorance otherwise benefit him in this regard. For if it is granted to someone by the Apostolic See that he cannot be excommunicated, although his bishop perhaps does not know this, nevertheless that person is not bound by the bishop's sentence if he pronounces one against him. Similarly, if power to confer a certain prebend is granted to someone by the Apostolic See, by that very fact the bishop's faculty to confer it then appears to be entirely forbidden.

Nor would it be an obstacle if perhaps it were objected that a law or constitution and a mandate bind no one until they have come to their knowledge, or until after the time within which they ought by no means to have remained ignorant of them; because it is otherwise in privileges, indulgences, or special concessions, in which it suffices that they come to the knowledge of those to whom they are granted, as is evident when it is granted to someone that he cannot be excommunicated, as was expressed above. And indeed, when power to confer a prebend is granted to someone, something special undoubtedly appears to be granted to him. It was moreover added that, since a sentence immediately binds even an ignorant person—because if a sentence of deposition is pronounced against some absent prelate, contracts that he afterward enters into in ignorance as prelate obtain no strength of validity—and since in the aforesaid letters we decree as null and void whatever should happen to be attempted concerning such a prebend or dignity contrary to our mandate, the collation that the same bishop made, personally or through another, of the aforesaid provostship after such our decree was not valid, whether he was ignorant of it or not.

On your behalf, however, it was replied that, with equity counseling it, these things ought to be understood of those privileges and indulgences that have their force immediately when they reach those to whom they are granted, and from whose tenor it can plainly be known that such was the intention of the grantor concerning them, as when it is granted to someone that he cannot be excommunicated. For from this it is manifestly apparent that the faculty to excommunicate him has been entirely taken away from others. But it is not so if power to confer a prebend, whether a specified or unspecified one, is granted to someone. For then the intention of the one granting does not appear to be that the possibility of conferring the prebend should thereby be taken away from the person to whose gift it belongs, unless the grantee first notifies him that he wishes to confer it by power of this kind, or forbids him to collate it, or, after notifying him that such power has been granted to himself, decrees as null and void anything that he presumes otherwise concerning it. For since no more extensive power is given to him than the Roman Pontiff himself has in this regard, just as the power the Roman Pontiff himself possesses does not take away from another the faculty to confer a benefice or prebend unless the Pontiff makes his will known, similarly the power granted to a person by the Pontiff in this manner does not take away from the person to whom the collation of that prebend belongs the power of conferring it before the grantee makes known to him that he wishes to grant it, or even before he confers it if it should be vacant, unless perhaps it is expressed in the grant of such power that the ordinary cannot confer it. For then, although the ordinary perhaps is ignorant of such a grant, his collation is nevertheless of no effect if he afterward confers the prebend, since the grantor's intention is sufficiently recognized concerning this, just as when it is granted to someone that he cannot be excommunicated, as was premised above.

It was also added that, since by the aforesaid letters we had commanded the said prior to confer upon the aforesaid D. a prebend or dignity without cure that he decided to accept, if one was then vacant, or the one that should first happen to become vacant in the aforesaid church, that prior had no power to provide him with the prebend or dignity itself until after D.'s acceptance of it. Hence, since the often-mentioned provostship was conferred upon you by authority of the aforesaid bishop before the same D. accepted it, a collation of this kind could not be invalidated under pretext of such our mandate, even if the bishop himself had previously known of it. Our decree in this regard, moreover, ought to have been referred to the prebend or dignity that the aforesaid D. accepted; otherwise it would have been issued concerning an uncertain matter and would have bound no one.

But it was answered on the other side that, although the aforesaid prior could not confer upon the said D. a prebend or dignity of this kind when it became vacant before an acceptance of this kind, nevertheless the same D. could lawfully and freely accept such a prebend or dignity. Therefore, because the aforesaid bishop did not first ask whether D. wished to accept the aforesaid provostship, he could not confer it upon anyone; indeed, his collation ought to be invalidated since D. afterward accepted the provostship itself, and the grant made to him by the said archpriest ought to remain stable. This is so just as when one of several slaves whom a person should choose or select is left to him by legacy, and the heir, before that person's selection or choice, manumits or alienates one of them: the manumission or alienation is certainly invalidated, and the slave falls to the legacy if the legatee decides to choose him.

Conversely, however, it was proposed on your behalf that this rule holds in last wills, and that the foregoing provisions do not apply to legacies of future things in the way they do to legacies of existing things, because a period cannot even be assigned for choosing or selecting among the former as it can among the latter. It would be a burdensome condition and would appear incongruous if, whenever it was commanded that provision be made for someone from a benefice that he decided to accept in some province when it first happened to become vacant, that person had to be consulted concerning every benefice subsequently vacant there, with their collation prolonged, perhaps not without danger to them. Hence, since it had been enjoined upon the often-mentioned prior that, if a prebend or dignity that the said D. decided to accept was vacant in the aforesaid church, or as soon as one should happen to become vacant, he should confer it upon D. by apostolic authority, and thus an option was given to D. concerning such future or to-be-vacant prebends or dignities of that church, the bishop's collation of them when they became vacant could not thereby be impeded, unless perhaps D. accepted one of them before the bishop conferred it, or unless, before the vacancy of any of those to become vacant, he decided to accept the first of them, or, omitting it for some reason, a later one; because the bishop could not afterward confer one accepted in this manner.

We therefore, having more fully understood both your arguments and those of the aforesaid D., because we know that the often-mentioned provostship belongs to you, have taken care, with the counsel of our brothers, to adjudge it to you, imposing perpetual silence upon D. concerning it.

Every promise by which a way is opened toward benefices to become vacant is condemned. John Andrew.

Boniface VIII.

The detestable perversity of the wicked, which knows neither how to abstain from forbidden things nor how to rejoice in things granted in the due manner, often deservedly arouses the office of the one presiding to revoke, after prior deliberation, things granted upon just consideration when he perceives that they are tending toward abuse. Indeed, although it was once decreed by canonical constitution that those who promise certain persons that they will provide them with ecclesiastical benefices when they are able, or when the opportunity presents itself, ought to fulfill their promises when the opportunity presents itself, nevertheless, as experience has taught, through promises of this kind—which for the most part are extorted through excessive importunity, by which things not to be granted are frequently granted, and through wicked ambition—a way is opened under such a cloak of words to promise damnably, contrary to the Lateran Council, benefices to become vacant; a desire for another's death is instilled; and many burdens are inflicted upon churches, prelates, and ecclesiastical persons. We, therefore, desiring to oppose evils of this kind and dangers to souls, by apostolic authority entirely condemn those promises and any others whatsoever hereafter to be made under any manner or form of words by which a way may directly or indirectly be opened to benefices to become vacant, and we render them entirely without force, decreeing that no one is hereafter in any way obligated by them or any of them to provide for another.

One having letters of the Apostolic See concerning the first benefice, dignity, or prebend that he decides to accept cannot accept a specified one; but he can accept the first that becomes vacant, or for cause the second or a later one. Reservations, proceedings, and decrees made contrary to this have no force. John Andrew.

The same.

Lest an occasion for seeking another's death be afforded from the benevolence of the grants of the Apostolic See, we have decided to declare that one to whom a grant is known to have been made by that See that provision be made for him from a prebend, dignity, personate, or other benefice in some province, diocese, or church that he decides to accept, with specified executors appointed for him concerning this, can indeed accept in general the first personate, dignity, prebend, or benefice to become vacant in that province, diocese, or church, or the second or a later one if there is a reasonable cause, but he cannot accept a specified and expressly designated one before it becomes vacant. If he should do so, even if his executors, in accordance with an acceptance of this kind, made a reservation and prohibition and conducted various proceedings and promulgated sentences, both the acceptance itself and the proceedings shall lack force and obtain no strength of validity. Indeed, unless that acceptor, through a collation or institution afterward made concerning the vacant dignity, prebend, personate, or benefice accepted and reserved in this manner, has already obtained it or acquired a right in it, provision from it when vacant can freely be made for another by the person to whom its collation or provision belongs, notwithstanding the said acceptance and the executors' proceedings ensuing from it.

Without a special mandate, an executor does not generally prohibit the collation of benefices in a province; but he specially reserves the first and prohibits the further collation of it only with a mandate. A collation made contrary to such a prohibition does not have force. This states the point. Dominicus.

The same.

An executor appointed by the Apostolic See through general letters concerning provision for someone in some province cannot generally prohibit the prelates and others to whom the collation of benefices in that province belongs from proceeding to make provision for anyone until provision has been made for the person for whom it is written, unless a faculty to make such a prohibition is expressly granted in the letters themselves. He can nevertheless make a special reservation and prohibition to the same persons concerning the first benefice to become vacant there—or, if this belongs to that person by benefit of the letters, concerning the second or a later benefice—to be conferred upon that cleric. What is attempted contrary to such a reservation and prohibition by the person to whom the collation of the reserved benefice belonged does not have force.

If it is commanded that a chapter receive me as canon and confer a prebend, when this belongs to it, with an executor appointed to make provision, the prebend is affected by presentation alone made to the chapter; and if the chapter neglects within the term established by the executor to receive me and confer the prebend, the executor can perform this without the chapter being summoned. John Andrew.

The same.

If our writings were directed to the chapter of some church—when the reception of canons and collation of prebends belonged to it—that it receive you as canon and provide you with a prebend there if one was then vacant or when the opportunity presented itself, and to an executor that he execute the apostolic mandate if that chapter neglected to do so, then by the presentation of those writings alone made to the chapter itself, without any other notification, prohibition, or reservation by the executor, the benefice concerning whose conferral upon you it was written is so affected that a collation of it made to another possesses no validity. Indeed, if the chapter does not decide to fulfill, insofar as it can, the apostolic mandate directed to it on your behalf within a suitable term fixed for it by the executor, from that time the power to make provision of this kind shall be transferred to the executor. The executor himself will immediately be able to give you the canonry and also the prebend, without another summons or admonition of the chapter, if it is vacant or when the opportunity presents itself.

If it is written to the ordinary alone, or to an executor alone for the purpose of compulsion, or to the ordinary and such an executor, the prebend is not affected by the presentation of such a mandate unless there was a decree in the letters, or that executor had given notice and prohibited a collation; especially is it affected when reception to the canonry had already been made by the decree or by reason of the mandate. In these cases, or either of them, the prebend is so affected that a collation made to another does not have force. John Andrew.

The same.

If an apostolic mandate is directed to the ordinary alone to provide you with a benefice, no executor being appointed; or to the ordinary and an executor that the latter compel him to do what is commanded; or to an executor alone that he cause provision to be made for you from a canonry and prebend or another benefice in a certain church, diocese, or province: through presentation of such a mandate made to the ordinary himself, although he is to be punished if he acts contrary to it, the power to confer is nevertheless not taken away from him in such a way that a collation made by him to another does not have force. It is otherwise if, in the grant made to you, we had decreed as null and void what should be done contrary to it; or if the executor, making his power known to such ordinary, had prohibited him from conferring upon another the benefice from which provision is to be made for you according to the tenor of such apostolic mandate, especially with the interposition of a decree; or if you had already been received as canon according to the said mandate. For then the collation of the prebend made to another would possess no validity.

If three persons are awaiting prebends in one church, one by Martin's authority, another by Boniface's authority, and the third by the same authority with the prerogative that he be preferred to all received otherwise than by Boniface's authority, they will obtain prebends in this order: the second will have the first, the third the second, and the first the third. This is proved by a legal analogy. John Andrew.

The same.

When a certain person had first been received by authority of Pope Martin, our predecessor, as a canon of the Church of Parma to await the prebend first to become vacant there and owed by law to no one else, and another had second obtained from us a similar grant in the same church, a third person was thereafter received by our authority as canon and brother in that Church of Parma with the prerogative of a grant that he ought, in obtaining a prebend, to be preferred to all persons received by authority of our predecessors, but not by ours. After this a certain prebend became vacant in the aforesaid church. It is asked which of them is to be preferred to another, and according to what order the aforesaid three ought to obtain prebends. Since, therefore, from the tenor of the grant conferred by us upon the third person it is manifestly apparent that we wished the third to be preferred to the first and the second to the third, we decree that the second ought to obtain the first prebend, the third the second, and the first the third; otherwise the form of the mandate would by no means be observed.

For although the second could not obtain the first prebend through his own person, he has it through the person of the third, who overcomes the first. So it happens in the succession of a person who dies intestate, leaving a father constituted in an adoptive family, a mother, and a brother. In that succession the father by himself excludes the mother; but because an agnate defeats such a father, while the mother defeats the agnate, the mother is preferred to the father in such succession not through herself but through the person of the agnate.

The revocation of grants includes persons received as canons who await a distinct prebend, even if they received daily distributions; it is otherwise if they do not await a distinct prebend but an increase of their portion. It includes those having a right to a benefice to become vacant if the matter has not yet proceeded to collation. This states the point according to Dominicus.

The same.

Because many doubts arise from our constitution—by which, shortly after our promotion to the summit of the Supreme Pontificate, in the presence of our brothers and by apostolic authority, we entirely quashed, invalidated, and annulled all collations, provisions, reservations, and grants made or conceded by our predecessors Pope Nicholas IV and Celestine V of happy memory concerning canonries, dignities, personates, prebends, offices, portions, prestimonies, parish churches, rural churches, and any other ecclesiastical benefices whatsoever to become vacant, by whatever name they were designated, and also concerning canonries under expectation of dignities or any other benefices whatsoever in which a right had not been acquired in the thing, although there was a right to the thing; pronounced them quashed, invalid, and annulled; and decreed them to possess no validity—we have decided to declare by the present enactment, so that the interpretation of the aforesaid revocatory constitution may proceed from the same source from which its promulgation proceeded, that this constitution applies to those who, at the time of the aforesaid promulgation, had been made canons by the same predecessors beyond the established number while awaiting prebends or even portions.

But if persons of this kind, received beyond the number, at the time of the said revocation possessed distributions and other things as canons existing within the number did, in such a manner that by the resignation or death of those who were within the number they expected to obtain nothing more by force of the prior grant except an increase of their distributions or portions—since perhaps it was a church in which there was an established number of canons but not a number of portions or a distinction of prebends, and the fewer persons among whom the revenues of any church are divided, the greater the portions of each recipient can become—it is certain that the aforesaid constitution does not extend to these persons, or to those who by letters of faculty of our said predecessors had been received as canons of certain churches, although they awaited prebends or other benefices.

But there is no doubt that the aforesaid constitution applies by reason of such expectation to those who, having already been received beyond the number by the aforesaid authority as canons of certain churches, then had the fullness of canonical right with regard to the chapter and choir and the receipt of daily distributions, but awaited in those churches dignities, personates, prebends, portions, or other benefices that are given only to persons existing within the number.

Indeed, the aforesaid constitution applies to those who obtained from our said predecessors letters concerning canonries, prebends, and dignities, parish or other churches, or any benefices whatsoever, even if reservations, interpositions of a decree, and various proceedings were made by their executors, and even if those benefices were then vacant and the applicants had petitioned the executors to confer them upon them, if, nevertheless, collations of the vacant benefices had not then been made. Thus all grants of this kind, by reason of which no proceeding to collation had then occurred and consequently no right in the thing had been acquired by the applicants themselves, are understood to have been entirely revoked.