Jus patronatus

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The right of patronage in Roman Catholic canon law (jus patronatus or ius patronatus) is a set of rights and obligations of someone, known as the patron in connection with a gift of land (benefice). It is a grant made by the church out of gratitude towards a benefactor.

A benefice or living is a reward received in exchange for services rendered and as a retainer for future services. The Roman Empire used the Latin term beneficium as a benefit to an individual from the Empire for services rendered. Its use was adopted by the Western Church in the Carolingian Era as a benefit bestowed by the crown or church officials. A benefice specifically from a church is called a precaria such as a stipend and one from a monarch or nobleman is usually called a fief. A benefice is distinct from an allod, in that an allod is property owned outright, not bestowed by a higher authority.

Its counterpart in English law and in the Church of England is called an advowson.

English law Legal system of England and Wales

English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.

Church of England Anglican state church of England

The Church of England is the established church of England. The Archbishop of Canterbury is the most senior cleric, although the monarch is the supreme governor. The Church of England is also the mother church of the international Anglican Communion. It traces its history to the Christian church recorded as existing in the Roman province of Britain by the third century, and to the 6th-century Gregorian mission to Kent led by Augustine of Canterbury.

Advowson is the right in English law of a patron (avowee) to present to the diocesan bishop a nominee for appointment to a vacant ecclesiastical benefice or church living, a process known as presentation.

The right of patronage is designated in papal letters as "ius spirituali annexum" and is therefore subject to ecclesiastical legislation and jurisdiction as well as civil laws relating to the ownership of property.

Decretals are letters of a pope that formulate decisions in ecclesiastical law of the Catholic Church.

Civil law, or civilian law, is a legal system originating in Europe, intellectualized within the framework of Roman law, the main feature of which is that its core principles are codified into a referable system which serves as the primary source of law. This can be contrasted with common law systems, the intellectual framework of which comes from judge-made decisional law, and gives precedential authority to prior court decisions, on the principle that it is unfair to treat similar facts differently on different occasions.

Background

In the Eastern Catholic Churches, the founder of a church was permitted to nominate an administrator for the temporal goods and indicate to the bishop a cleric suitable for appointment. [1] In the Latin Church, the Synod of Orange in 441 granted a right of "presentation" to a bishop who had built a church in another diocese [2] and the Synod of Toledo in 655 gave a layman this privilege for each church he built, [3] but the founder had no proprietary rights. [4]

Eastern Catholic Churches Autonomous, self-governing particular Churches in full communion with the Pope

The Eastern Catholic Churches or Oriental Catholic Churches, also called the Eastern-rite Catholic Churches, and in some historical cases Uniate Churches, are twenty-three Eastern Christian particular churches sui iuris in full communion with the Pope in Rome, as part of the worldwide Catholic Church. Headed by patriarchs, metropolitans, and major archbishops, the Eastern Catholic Churches are governed in accordance with the Code of Canons of the Eastern Churches, although each church also has its own canons and laws on top of this, and the preservation of their own traditions is explicitly encouraged. The total membership of the various churches accounts for about 18 million, according to the Annuario Pontificio, thus making up about 1.5 percent of the Catholic Church, with the rest of its more than 1.3 billion members belonging to the Latin Church, also known as the Western Church or the Roman Catholic Church.

Latin Church Automonous particular church making up of most of the Western world Catholics

The Latin Church, also known as the Western Church or the Roman Catholic Church, is the largest particular church of the Catholic Church, employing the Latin liturgical rites. It is one of 24 sui iuris churches, the 23 others forming the Eastern Catholic Churches. It is headed by the bishop of Rome, the pope – traditionally also called the Patriarch of the West – with cathedra in this role at the Archbasilica of Saint John Lateran in Rome, Italy. The Latin Church traces its history to the earliest days of Christianity, according to Catholic tradition, through its direct leadership under the Holy See.

A bishop is an ordained, consecrated, or appointed member of the Christian clergy who is generally entrusted with a position of authority and oversight.

In the countries occupied by the Germanic tribes, on the basis of the individual temple and church rights found in their national laws, the builder of a church, the feudal lord or the administrator possessed full right of disposal over the church founded or possessed by him, as his own church ( ecclesia propria ) and over the ecclesiastics appointed by him. However, the appointment and dismissal of ecclesiastics at least formally was made subject to the consent of the bishop. [5] In the course of the Investiture Controversy, however, the private right over churches was abolished, although to the lord of the estate, as patron, was conceded the right of presenting a cleric to the bishop (ius praesentandi) on the occasion of a vacancy in the church. [6] In England, unusually, this latter right was regulated by the Common Law, and referred to as advowson.

Germanic peoples A group of northern European tribes in Roman times

The Germanic peoples were an indigenous ethnolinguistic group of Northern European origin identified by Roman-era authors as distinct from neighbouring Celtic peoples, and identified in modern scholarship as speakers, at least for the most part, of early Germanic languages.

Investiture Controversy 11th- and 12th-century dispute between secular rulers and the papacy

The Investiture Controversy or Investiture Contest was a conflict between church and state in medieval Europe over the ability to install high church officials through investiture. By undercutting imperial power, the controversy led to nearly 50 years of civil war in Germany. According to historian Norman Cantor, the Investiture Controversy was "the turning-point in medieval civilization", marking the end of the Early Middle Ages with the Germanic peoples' "final and decisive" acceptance of Christianity. More importantly, it set the stage for the religious and political system of the High Middle Ages.

Nature

A "personal" right of patronage (ius patronatus personale) is peculiar to a person as such, while a "real" right of patronage (reale) belongs to one in possession of something with which a patronage is connected (provided of course that he is qualified for the possession of the right of patronage). A "spiritual" patronage (ecclesiasticum; clericale) is one belonging to the incumbent of an ecclesiastical office, or established by the foundation of a church or a benefice out of ecclesiastical funds, or instituted by a layman and later presented to the Church. Thus the patronages in possession of secularized bishoprics, monasteries, and ecclesiastical foundations are regarded as spiritual. A lay patronage (laicale) is established when an ecclesiastical office is endowed by anyone out of private means. A patronage is mixed (mixtum) when held in common by the incumbent of an ecclesiastical office and a layman.

Diocese Christian district or see under the supervision of a bishop

The word diocese is derived from the Greek term dioikesis (διοίκησις) meaning "administration". Today, when used in an ecclesiastical sense, it refers to the ecclesiastical district under the jurisdiction of a bishop. Sometimes it is also called bishopric.

Monastery complex of buildings comprising the domestic quarters and workplace(s) of monks or nuns

A monastery is a building or complex of buildings comprising the domestic quarters and workplaces of monastics, monks or nuns, whether living in communities or alone (hermits). A monastery generally includes a place reserved for prayer which may be a chapel, church, or temple, and may also serve as an oratory, or in the case of communities anything from a single building housing only one senior and two or three junior monks or nuns, to vast complexes and estates housing tens or hundreds. A monastery complex typically comprises a number of buildings which include a church, dormitory, cloister, refectory, library, balneary and infirmary. Depending on the location, the monastic order and the occupation of its inhabitants, the complex may also include a wide range of buildings that facilitate self-sufficiency and service to the community. These may include a hospice, a school, and a range of agricultural and manufacturing buildings such as a barn, a forge, or a brewery.

Objects of patronage

Any church benefice, with the exception of the papacy, the cardinalate, the episcopate, and the prelatures of cathedral, collegiate and monastic churches, may be the object of the right of patronage. All persons and corporate bodies may be subject to the right of patronage. But persons, besides being capable of exercising the right, must be members of the Catholic Church. Thus non-Christians, Jews, heretics, schismatics and apostates are ineligible for any sort of patronage.

Nevertheless in Germany and Austria it has become customary as a result of the Peace of Westphalia (1648) for Protestants to possess the rights of patronage over Catholic, and Catholics over Protestant church offices. In modern concordats Rome has repeatedly granted the right of patronage to Protestant princes. Entirely ineligible for patronage are the excommunicati vitandi (the excommunicati tolerati are able at least to acquire it), and those who are infamous according to ecclesiastical or civil law. On the other hand, illegitimates, children, minors and women may acquire patronages.

Gaining a right of patronage

A right of patronage is originally acquired by foundation, privilege or prescription:

Derivatively, a patronage may be obtained through inheritance (in which case a patronage may easily become a co-patronage; by presentation), in which a lay patron must have the sanction of the bishop if he desires to transfer his right to another layman, but an ecclesiastic requires the permission of the pope to present it to a layman, or that of the bishop to give it to another ecclesiastic [8]

An already existing right of patronage may be acquired by exchange, by purchase, or by prescription. In exchange or purchase of a real patronage the price of the object in question may not be raised in consideration of the patronage; the right of patronage being a ius spirituali annexum, such a thing would be simony.

A ruler of a country may acquire the right of patronage in any of the three ways mentioned but does not automatically have the right of patronage.

Rights involved in patronage

The rights involved in patronage are: the right of presentation, honorary rights, utilitarian rights and the cura beneficii.

Right of presentation

The right of presentation (ius praesentandi) means that in case of a vacancy in the benefice, a patron may propose to the ecclesiastical superiors empowered with the right of collation, the name of a suitable person for that office. Co-patrons with the right of presentation may take turns, or each may present a name for himself, or it may be decided by vote. In the case of juridical persons the presentation may be made according to statute, or by turns, or by decision of the majority. The drawing of lots is excluded.

With regard to the one to be presented, in the case of a benefice involving the cure of souls, the ecclesiastical patron must choose from among the candidates for presentation the one he believes the most suitable, judging from the parish concursus. The lay patron has only to present the name of a candidate who is suitable in his opinion. In case this candidate has not passed the parish concursus, he must undergo an examination before the synodal examiners.

In the case of a mixed patronage, the rights of which are exercised in common by an ecclesiastical and a lay patron, the same rule holds as in the case of a lay patronage. Here it is the rule to deal with the mixed patronage, now as a spiritual and again as a lay patronage, according as it is most pleasing to the patrons. If the prerogatives of the mixed patronage are exercised in turn, however, it is considered as a spiritual or a lay patronage, as suits the nature of the case.

The patron cannot present his own name. Co-patrons may, however, present one of their own number. If through no fault of the patron, the name of an ineligible person is presented, he is granted a certain time of grace to make a new presentation. If, however, an ineligible person has been knowingly presented, the spiritual patron loses for the time being the right of presentation, but the lay patron, so long as the first interval allowed for presentation has not expired, may make an after-presentation. Thus the presentation of the spiritual patron is treated more after the manner of the episcopal collation. On that account the spiritual patron is not permitted an after-presentation or a variation in choice, which is permitted the lay patron, after which the bishop has the choice between the several names presented. [9]

A presentation may be made by word of mouth or in writing. But under penalty of nullity all expressions are to be avoided which would imply a bestowal of the office. [10] A simoniacal presentation would be invalid.

The time allowed for presentation is four months to a lay patron, and six to a spiritual patron; six months is stipulated for a mixed patronage when exercised in common, four or six months when turn is taken . [11] The interval begins the moment announcement is made of the vacancy. For one who through no fault of his own has been hindered in making a presentation, the time does not expire at the end of the period mentioned. When his candidate has been unjustly rejected by the bishop, the patron may appeal, or make an after presentation.

Honorary rights

The honorary rights (iura honorifica) of the patron are: precedence in procession, a sitting in the church, prayers and intercessions, ecclesiastical mentions, burial in the church, ecclesiastical mourning, inscriptions, special incensing, the asperges (holy water), ashes, palms and the Pax.

Utilitarian rights

The utilitarian rights (iura utilia) of the patron consist essentially in that insofar as he is a descendant of the founder he is entitled to a maintenance allowance the superfluous funds of the church connected with the patronage if he has no other means to support himself. [12] To draw any other material advantages from the church connected with the patronage, as so frequently happened in the Middle Ages, it is requisite for this condition to have been made at the time of foundation with the consent of the bishop, or that it be subsequently stipulated. [13]

Duties of patrons

The duty (iura onerosa) of the patron is, in the first place, the cura beneficii, the care to preserve unimpaired the status of the benefice and the conscientious discharge of the obligations connected therewith. He must not, however, interfere in the administration of the property of the benefice or the discharge of the spiritual duties on the part of the holder of the benefice. This cura beneficii entitles the patron to have a voice in all changes in the benefice and the property belonging to it. Again, on the patron is incumbent the defensio or the advocatia beneficii. [14] In the present administration of justice however, this obligation has practically disappeared. Lastly, the patron has the subsidiary duty of building. [15]

End of a right of patronage

The right of patronage lapses at the suppression of the subject or object. If the church connected with the patronage is threatened with total ruin, or the endowment with a deficit, if those first bound to restore it are not at hand, the bishop is to exhort the patron to rebuild (reædificandum) or renew the endowment (ad redotandum). His refusal forfeits him the right of patronage, at least for himself personally. Furthermore, the right of patronage is lost upon express or tacit renunciation. And lastly, it lapses in cases of apostasy, heresy, schism, simoniacal alienation, usurpation of the ecclesiastical jurisdiction over the patronal church or appropriation of its goods and revenues, murder or mutilation of an ecclesiastic connected with the church.

See also

Notes

  1. L. 46, C. de episc. I, 3. Nov. LVII, c. 2
  2. c. i, C. XVI, q. 5
  3. c. 32, C. XVI, q. 7
  4. c. 31, C. XVI, q. 7
  5. c. 37, C. XVI, q. 7
  6. c. 13, C. XVI, q. 7; C. 5, 16, X de iure patronatus, III, 38
  7. c. 25, X de jure patr. III, 38)
  8. c. un. Extrav. comm. de rebus eccl. non alien. III, 4
  9. ius variandi cumulativum, c. 24, X de iure patr. III, 38
  10. c. 5, X de iure patr. III, 38
  11. c. 22, X de iure patr. III, 38
  12. c. 25, X de iure patr. III, 38
  13. c. 23, X de iure patr. III, 38. C. un. Extrav. comm. de rebus eccl. non alien. III, 4
  14. c. 23, 24, X de iure patr. III, 38
  15. Trent, Sess. XXI, "de ref.", c. vii,

Sources

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