LEGAL
118
LEQATE
to all revenue of the "spolium" (Collectanea, I, n.
724). On the other hand, even when the legislation
of Alexander III was introduced, it was not always en-
forced in the same way; in some places the ecclesias-
tics could dispose of their peculium beneficiale^' in
favour of pious purposes; in others they were granted
full testamentary liocrty, provided they made a leg-
acy in favour of pious objects, or else paid a certam
sum to the bishop who allowed them to make the will.
These practices, together with the difficulty of dis-
tinguishing, in the mheritance of an ecclesiastic, the
amount of the "patrimonium beneficiale*', eventually
left ecclesiastics testamentary freedom.
However, the canonical legislation is yet substan- tially unchanged; ecclesiastics are even now obliged to bequeath for pious purposes the superfluous part of the revenues from their Dcnefices which they have not distributed during their life. This principle, recalled by the Council of Trent (Scss. XXV, De reformatione, c. i), is reasserted in most provincial councils of the nineteenth century. It is conmionly admitted that it imposes no obligation of justice, but merely one based on ecclesiasticsd precept (Santi, op. cit., Ill, 211; Wernz, op. cit., Ill, 210-11). This obligation does not exist m countries where there are no benefices, or where benefices strictly so called are notoriously in- sufficient for the support of the clergy who enjoy them. Under these circumstances, pious bequests are earnestly recommended to ecclesiastics, but they are never ol)ligator>' in conscience. For the special rules regulating the wills of cardinals, see Santi, op. cit., Ill, 227-34. The obligations imposed on eccle- siastics, needless to say, are binding on their heirs in case they die intestate. Sometimes this matter is de- cided by local custom. The Provincial Councils of Vienna (185S) and of Prague (1860) decree that the estate of an ecclesiastic deceased intestate is to be di- vided into three parts: one for the Church, one for the poor, and the third for the relatives of the deceased. If the deceased was not possessed of any ecclesiastical benefices, only one-third of the estate is subject to the above rule, and that is to be distributed among the needy, but should the heirs of the deceased belong to that class, said portion may be given to them.
See the commentaries of the canonists on the Third Book of the Decretals, titles xxv, xxvi, and xxvii; ScnMALZORCEBER, Jua canonicum universunit Hit ii (Rome, 1844), 462-607; Rbiffenstuel, Jua canonicum univeraunij IV (Paris, 1867), 362-567; Hauti, Prcilectionf a juris amonici.lll (Rome, 1897), 209-247; Wernz, /ua dccrefa/tum, III (Rome, 1901), 199-218, 306-327; SagmOluer, Lehrbuch dea kathoHachen Kirchenrechta (Freiburg. 1904), 764, 787-92: Thomassincs, Vetua et nova erclc- aia diaciplina, pt. Ill, bk. II (Paris, 1691), cc. xxxviii-lvii; Wao- ker. Diaaertatio de teatamento ad piaa cauaaa (Leipzig, 1735); Thomas, Daa kanoniacfieTeatament (Leipzig, 1897); Wolff von Olanvell, Die letzvoHlige Vcrfuqunoen nach gemeinim Kirch- lichen Rechte (Paderbom, 1900); Fknelon, Lea fondationa et lea Habliaaementa eccliaiaatiguea (Paris, 1902); Schmidt, Theaaurua juria eccUaiaatici, IV (Heidelberg, 1727), 382^40: Sentis, De jure tealamentorum a clericia aeaJtlaribua ordinandorum (Bonn, 1862); EiSENBERO. Daa Spolienrecht am Nachlass der Qcisi- lichen (Marburg, 1886); Hollweck, Daa Testament der Geiat- Hchen nach kirchlichen und hurgerlichen Recht (Mainz, 1901); Sam ARAN, La jurisprudence poniificale en matih^ de droit de dtpouille (jua apolii) dana la seconde moitiS du X7T'« sxi-cle in AulangeH d*arch^ologie et d'histoire (EcoU fran^iae de Rome) XXn, (Paris, 1902), 141 sq.
A. Van Hove. Legal, Emile Joseph. See St. Albert, Diocese
OP.
Legate (Lat. legarCj to Bend) in its broad significa- tion means that person who is sent by another for some representative office. In the ecclesiastical sense it means one whom the pope sends to sovereigns or governments or only to the members of the episcopate and faithful of a country, as his representative, to treat of church matters or even on a mission of honour. Hence the legate differs from the delegate, taking this term in a strictlv juridical sense, since the delegate is one to whom the pope entrusts an affair or many affairs to be treated through delegated jurisdiction
and often in questions of Utigatiou, whereas the legate
goes with ordinary jurisdiction over a whole country
or nation. The canon law treats of delegates of the
Holy Sec, delegaii Sedis Aposiolicoc (Decret., lib. I,
tit. xxix), and in this sense even bishops, in certain
cases determined by the Council of Trent (Sess. V,
cap. i, De Ref., etc.), may act as delegates of the Holy
See. Nevertheless, as will be seen later, according to
the present discipline of the Church, a delegate, inas-
mucn as he is sent to represent the Holy See in some
particular country, really fills the office of a legate.
Since the jurisdiction of a legate is ordinaiy, he does
not cease to be legate even at the death of the pope
who appointed him^nd even if he arrived at hb post
after the death of that pope.
The pope, by virtue of his primacy of jurisdiction, has the right to send legates to provide for the unity of Faith and for ecclesiastical disciplincj and to choose them at will. Though self-evident, this authority of the pope has been contested from a very early period. Gregory VII (1073-S5) reproved the claims of those who wished to have only Ilomans as legates and not representatives from other countries. Paschal II (1099-1118), in a letter to Henry II of England, ^ev- ously deplores the vexations inflicted on the pontifical legate, and maintains the right of the pope to send such representatives. Jolm XXII (131(V-34) declares unreasonable and contrary to the authority of the pope the refusal to admit a papal legate without the approval of the sovereign. And there are not wanting writers who denied, some wholly, others in part, such a right on the part of the pope, e.- g. Marc* Antonio de Dorainis, Richer, Febronius, Eybel, and others. This erroneous claim was upheld in the eighteenth century by four archbishops of Germany, those of Mainz, Trier, Cologne, and Salzburg, to whom Pius VI made the famous reply of 14 November, 1789, in which we read that one of the rights of primacy of St. Peter is that "By virtue of his Apostolic prerogative, while providing for the care of all the lambs and the sheep confided to him, the Roman Pontiff discharges his Apostolic duty also by delegating ecclesiastics for a time or permanently as may seem best, to go into distant places where he cannot go and to take bis place and exercise such jurisdiction as he himself, if present, would exercise". Worthy of attention also are the diplomatical note of Cardinal Consalvi to the Spanish Government (9 January, 1802), which treats 01 the character of the A|>o8tolic nuncio, and the letter of Cardinal Jacoljini (15 April, 1885) to the same Gov- ernment. The Vatican Cfouncil, in stating the true doctrine concerning the primacy of the pope (Sess. 1 V, cap. iii), condemned implicitly the said errors. The Constitution " Apostolicie Sedis ", moreover, contains (no. 5) an excommunication reserved speciaii modo to the pope against those who harm, expel, or unlawfully detain legates or nuncios.
Historical Development and Division. — The popes have made ase of this right from the earhest ages of the Church. The first example was the send- ing by Sylvester I of legates to the Council of Nicxa f 325); afterwards those sent to the Council of Sardica (345); and those sent by Zosimus I to Africa (418), to settle certain ecclesiastical matters. In the fourth century we find the first example of a papal represen- tative sent in an official character^ i. e. the apocnsiarius (q. v.), or responsolis, Accordmg to Ilincmar of Reims, the apocrisiarius dates back to the time of Constantine, but according to De Marca (De Ord. Palatii, cap. xiii), the office dates from the Coimcil of Colchis (451). From the letters of Gregory I, himself an apocrisiarius, and from a letter of Leo I to Julianus of Cos, whom he ai)pointed apocrisiarius; can be de- duced the powers of this officer and his duties, i.e. to look after the observance of ecclesiastical discipline, to resist the spread of heresy, and to defend the rights of the pope. For three centuries such a papal inter-
