Article II: On The Obligations Of Those Who Confer Benefices

2238. • We note beforehand: 1. The obligations concerning which we are about to speak here do not fall upon the conferring Superior alone, but also, proportion having been observed, upon all who concur in the collation, e.g. examiners, patrons, those resigning, and others exercising the right of nomination or presentation; because generally the same reason runs concerning all these. - 2. The same rules are generally valid for Religious electing or nominating to regular prelacies.⁷

Therefore let the following be held.

2239. • Principles. I. Upon the collator there is imposed, under penalty of nullity, the obligation of conferring BENEFICES only on those who are CAPABLE BY LAW.⁸

Now, by the sacred canons it is strictly required on the part of the one to be elected, that he be:

1. A Cleric, i.e. at least marked with tonsure. But if the benefice requires a sacred Order, it is necessary that within a year from possession of the benefice, that Order be received. - Whence, he who with a doubtful or conditioned mind of receiving the priesthood receives a curative benefice sins gravely and is held to restitution of the fruits; because he received these fruits fraudulently, against the sacred canons. Nevertheless, if before the end of the year he becomes a priest, he can retain the fruits.⁹

2. Born of legitimate parents; otherwise, the election is null. Yet the Bishop can dispense with an illegitimate man for minor Orders, and for simple benefices which do not require a major Order; as regards a major Order, only the Pope can dispense.¹⁰

3. Not married; because "the cithara harmonizes badly with the psaltery," as Innocent III speaks;¹¹ wherefore the collation which is made to a married cleric is invalid. Indeed, if a cleric initiated in minor Orders contracts marriage, he loses by the law itself his benefice.¹²

4. Learned, i.e. that he have suitable knowledge: which knowledge indeed, according to the diverse quality of benefices, is required diversely. To this can be referred Rule 20 of the Apostolic Chancery, which declares the provision of a curative benefice null if the one provided does not know the language of the place, because he cannot have care of a people whose language he does not know. - But certain benefices cannot be conceded except to those distinguished by a degree.¹³

5. That he have the prescribed age; for when age is lacking, even as to one hour, the common opinion holds that the collation of the benefice is null. But there are required for the Episcopate 30 completed years; 25 for a parish; 40 for a Penitentiary; 22 for a Dignity and Personate in a Cathedral; 21 for a canonry, even in a Cathedral; 14 for other Benefices (A year begun is held as completed, unless something else is expressed). - Yet those who are called restricted, namely those who from foundation are called to a simple Benefice, can, provided they are older than seven years, be marked with tonsure and acquire the benefice; because Trent did not expressly derogate these ancient foundations.¹⁴

6. That he be entangled in no censure and irregularity. For collation made to an excommunicated person is certainly null, from cap. Postulasti 7, de Cler. excom.; made to one suspended, it is indeed not, according to the more probable opinion, void, but it is to be made void from cap. Cum bonae 8, de aet. et qualit.; finally made to an irregular person (even if it is a question of a simple benefice, e.g. of a canonry), is similarly null, at least from the more common and more probable opinion, to which Trent seems fully to favor.¹⁵ Whence, it is doubtful whether one thus provided can, before a dispensation has been obtained, gain the fruits of the benefice. But otherwise, if someone already validly instituted a canon afterward falls into irregularity¹⁶ (Recall what was said n. 1928, 3; 1292, 6; 1303, 4).

7. That he be immune from the stain of simony. For the simoniac, whether elected or collator, incurs excommunication reserved to the Roman Pontiff (cf. n. 1335); and the provision of a Benefice simoniacally conferred is of itself null. Indeed, the simoniac, at least after a declaratory sentence, becomes incapable either of retaining other benefices previously acquired, or of acquiring new ones (cf. n. 591).¹⁷

From these things you will resolve: 1. Since, from the decrees of the sacred canons, the aforesaid CONDITIONS must be altogether observed, it follows that the cleric who, these not having been observed, was provided, was not validly provided, nor acquired any right for himself, and therefore does not make the fruits his own; 2. if he has already received them, he is held to restitution. Except if he has been, for at least three years, in possession with good faith; because then prescription would be had.¹⁸

2240. • II. The collator of a Benefice is held to confer it not only on a Cleric capable by law, but also on one WORTHY, or SUITABLE for fulfilling the office; under the penalty of invalidation to be pronounced by a judge. This is established from Trent sess. 7, cap. 3, de Ref., where it is prescribed that "ecclesiastical Benefices, especially those having care of souls, be conferred on worthy and capable persons...; but otherwise a collation or provision made is altogether to be invalidated." From which precept of Trent, and from another similar to this of the Lateran Council, it is clear that he sins mortally, both the unworthy man who permits himself to be promoted, and the Collator who knowingly takes care to promote an unworthy man; (indeed he who knowingly elects an unworthy man is deprived for a three-year period of the right of election). The reason is because the unworthy, or incapable, is judged at least useless to the Church; but since benefices have been instituted for the good of the Church and the utility of the faithful, it is manifest that the collator is to the grave detriment of the Church and of the faithful by conferring them on the unworthy. And hence it is why he is held to restitution toward the Church.¹⁹

Two things here come TO BE NOTED, namely: 1. Examiners would be lacking to their office "if they were judges of doctrine only, and did not inquire who, before others, by probity of morals, labors, obedience previously furnished to the Church, and the other endowments necessary for cumulatively undertaking the office of pastor, were suitable and commendable." Thus the Sacred Congregation of the Council has declared several times.²⁰ - 2. Examiners are to be constrained to an oath, by which they may solemnly promise that they will faithfully perform their office according to the prescription of the Council of Trent; for otherwise the concursus would be null, from the Decree of the Sacred Congregation of the Council, 2 December 1628.²¹

2241. • III. The collator of a benefice, even if it is a question of a simple benefice, is held to CONFER it not only on one worthy, but on the MORE WORTHY. But he is to be judged more worthy who, compared to the other candidates, is more suitable for promoting the advantage both of the Church and of the faithful.²² And indeed,

1. It is certain that for the Cardinalate, Episcopate, and curative benefices, the more worthy must be chosen. - This is established from Trent sess. 24, cap. 1, de Ref., where it is said that collators sin mortally if they do not place over them "those whom they themselves judge more worthy and more useful to the Church, not indeed by human affection, or suggestions of those canvassing, but as their merits require...." And in cap. 18 it is prescribed that the Bishop choose for a curative benefice "him whom he shall judge more suitable than the others." From which it is clear that Patrons, likewise Pontiffs and Kings, and their ministers, sin of themselves gravely if they do not promote the more worthy to the aforesaid dignities.²³

2. It is more probable that even to simple benefices the more worthy must be promoted. - The reason is, 1. because thus there is cast into each one an incentive to render himself more worthy, and emulation of this sort yields to the greater utility of the Church; - 2. because benefices have been instituted not only for the common good, but also, although secondarily, for the remuneration of merits. Whence, by conferring benefices of this sort upon those less worthy, the Bishop gravely injures both legal justice, on account of neglect of the common good, and distributive justice on account of violation of the right which the more worthy have.²⁴ Yet the Doctors limit this opinion, and say that it is not a mortal sin if the more worthy is passed over not everywhere, but once or twice; if the excess of worthiness is small; if the benefices are of little importance; if, from the law of foundation, someone must be chosen from a family, college, town, etc.; if the more worthy is foreseen to be about to lay aside the benefice shortly.²⁵

Let it be NOTED: 1. Greater worthiness is not to be taken absolutely, but respectively to the utility of the Church and of the faithful. - Hence, other things being equal, he is judged more worthy: 1) the Elder, on account of greater experience; 2) one well deserving, who from his own goods founded a church; 3) a Priest in competition with one not a Priest, since immediately he is able to serve; 4) one native-born with respect to a stranger, since he is presumed more solicitous; 5) one graduated in some science; 6) one endowed with greater sanctity or prudence, with respect to him who is preeminent in knowledge alone; 7) one powerful and noble, because these things are accustomed to conduce not a little to the good of the church; 8) a poor man with respect to a rich man, that provision also may be made for him. "But if someone is probably more worthy, but doubtfully less worthy than another, who is certainly worthy, this certainly worthy one can be preferred."²⁶

2. He who is less worthy, provided he is not unworthy, does not sin by competing with a more worthy man, and accepting the benefice, even a curative one. - Whence St. Thomas,²⁷ speaking of a Bishop: "It is not required," he says, "that he judge himself better than others; but it suffices that he find nothing in himself by which it would be rendered illicit for him to assume the office of prelacy."²⁸

2242. • Questions. ASK 1. Whether the election of a LESS WORTHY man is invalid, and induces the burden of restitution?

Resp. 1. The election of a less worthy man even to a curative benefice, although gravely illicit on the part of the collator, nevertheless is not of itself invalid; for, although the more worthy man passed over has the right of appealing, the appeal nevertheless, as is read to have been declared in the Bull In conferendis of St. Pius V (18 March 1567), does not prevent the election meanwhile from being put into execution: whence it is held valid, until it has been revoked by a judge.²⁹

Resp. 2. It does not induce the burden of restitution, at least outside the case of concursus: because, although the collator has gravely injured both legal justice toward the Church and distributive justice toward the more worthy, nevertheless more probably he has violated the strict right of neither; because, outside the case of concursus, there does not intervene a pact by force of which he would be held from commutative justice to choose the more worthy. We said outside the case of concursus: because, if the election is made through concursus, a pact intervenes between the elector and the competitors; whence the most common and certainly more probable opinion holds that a cleric notably more worthy has a right that the damage be compensated to him by those electing. Moreover the Doctors excuse from restitution if the excess of worthiness were moderate (cf. n. 922).³⁰

ASK 2. Whether it is licit to confer SEVERAL benefices upon one cleric?

Resp. 1. Considering positive law, it must be distinguished thus: 1) It is licit, if the benefices are compatible, such as simple ones are customarily, which do not oblige to residence; for concerning these the Council of Trent (sess. 24, cap. 17, de Ref.) thus established: "that only one ecclesiastical benefice be conferred on individuals.

But if this indeed does not suffice for the honorable support of him to whom it is conferred, nevertheless it is licit for another simple sufficient one to be conferred upon the same person, provided both do not require personal residence." But the permission of the Bishop is required. But if even that does not suffice, a dispensation of the Holy See is necessary so that a third can be obtained. - 2) It is not licit if they are incompatible, as certainly are an Episcopate, curative benefices, and others to which some jurisdiction is annexed; wherefore, if someone receives two benefices of this kind, once the second has been accepted, the first is vacant by the law itself; and if he presumes to retain both for himself, he is deprived ipso facto of both. Thus from Trent sess. 7, cap. 4, and sess. 24, cap. 17. And the same, more probably, is valid concerning benefices which indeed lack jurisdiction, but which require residence, as Canonries; although many deny that these become vacant by the law itself, and before the sentence of a judge.

Resp. 2. Considering the law of nature, whether the benefices are compatible or incompatible, when one suffices for support, plurality is, of itself, illicit; both because the mind of the founders is to be presumed to have been this, that several would serve the Church; and because from plurality of benefices several inconveniences flow. Thus the common and to-be-held opinion. We said of itself, because the Pope can dispense from a just cause. But an honesting cause is so absolutely required that, when it is lacking, the benefices cannot be retained, not even with the dispensation itself of the Pontiff. - Among HONESTING CAUSES there are customarily counted: 1) necessity of the Church, namely in the case in which other suitable ministers would be lacking; 2) utility, as if someone alone, although absent, can benefit more by prudence, doctrine, authority, than another present; 3) prerogative of merits, if namely someone benefits the Church by his doctrine, instruction, etc.¹