Ecclesiastical Privileges

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Ecclesiastical privileges are exceptions to the Law made in favour of the clergy or in favour of consecrated and sacred objects and places.

I

The privileges in favour of the clergy are: personal inviolability, a special court, immunity from certain burdens and the right to a proper maintenance (privilegium canonis, fori, immunitatis, competentiœ). In addition, the clergy have precedence of the laity in religious assemblies and processions, a special place in the church, viz., the presbytery (c. 1, X de vita et honestate cleric., III, 1), and titles of honour. These honours increase according to the higher order or office.

Privilegium canonis

In earlier canon law the injuring or wounding of a cleric was punished by severe canonical penances, and on occasion by excommunication (cc. 21, 22, 23, 24, C. XVII, q. 4). A person wounding a bishop incurred ipso facto excommunication (Synod of Rome, 862 or 863, c. xiv). When about the middle of the twelfth century at the instigation of politico-religious agitators, like Arnold of Brescia, excesses were committed against the defenceless clergy and religious, who were forbidden to carry weapons, the Church was compelled to make stricter laws. Thus, the Second Council of Lateran (1139), c. xv, after the Synods of Clermont (1130), Reims (1131), and Pisa (1135), decreed that whosoever thenceforth laid malicious hand on a cleric or monk incurred ipso facto anathema, the raising of which, except in danger of death, was reserved to the pope and must be sought in person at Rome (c. 29, C. XVII, q. 4).

This privilege, which, from the opening words of the canon, is called the privilegium canonis "Si quis suadente diabolo" or simply privilegium canonis, continues even today (Pius IX, "Apostolicæ Sedis moderationi", 12 October, 1869, II, 2), and is enjoyed also by nuns (c. 33, X de sent. excomm. V, 39), lay brothers (c. 33 cit.), novices (c. 21 in VIto h. t. V, 11), and even by tertiaries, who live in common and wear the habit (Leo X, "Dum intra", 19 December, 1516; "Nuper in sacro", 1 March, 1518). According to the wording of the canon, however, it is necessary, for the incurring of the excommunication, that the injury inflicted on the cleric or monk be a malicious and real injury, under which is included unauthorized deprivation of freedom (c. 29, X h. t. V, 39). Consequently, excommunication is not incurred by a superior justly chastising one of his inferiors (cc. 1, 10, 24, 54, X h. t. V, 39); by one who acts in self-defence against a cleric (cc. 3, 10, X h. t. V, 39), by one who avenges insult or assault on wife, mother, sister, or daughter (c. 3 cit.); when the injury results from a joke (c. 1, X h. t. V, 39), or if the assailant be unaware (to be testified on oath, if necessary) of the clerical rank (c. 4, X h. t. V, 39). Instead of the pope, the bishop gives absolution in the case of a slight injury (a. 3, 17, 31, X h. t. V, 39); or if a journey to Rome be impossible; if the obstacle to the journey be only temporary, the assailant must promise the bishop on oath at the time of receiving absolution to present himself before the pope on the disappearance of the obstacle; should he fail to do so, the sentence revives (cc. 1, 2, 6, 11, 13, 26, 32, 33, 37, 58, 60, X h. t. V, 39; c. 22 in VIto h. t. V, 11). According to the Council of Trent, the bishop may also absolve when there is question of secret offences (Sess. XXIV de Ref., c. vi) and, in virtue of the quinquennial faculties pro foro interno, of the less serious offences. In consequence of the more extensive powers of releasing from ecclesiastical censures enjoyed by confessors today, personal appearance at Rome is perhaps necessary only in the most serious cases. Abbots absolve their subjects in the case of lighter offences occurring among themselves (c. 2, 32, 50, X h. t. V, 39). This privilege grows with the office. Thus, whosoever commits or causes a real injury to a cardinal, papal legate, or bishop incurs excommunication speciali modo reservata (Pius IX, "Apostolicæ Sedis moderationi", 12 October, 1869, I, 5). While the old German common law punished the injuring of a cleric with a heavier fine than the injuring of a lay person, the modern secular laws like the Roman law, afford special protection to clerics only during the exercise of their calling.

Privilegium fori

This secures the clergy a special tribunal in civil and criminal causes before an ecclesiastical judge. The civil causes of clerics pertain by nature to the secular courts as much as those of the laity. But the thought that it was unseemly that the fathers and teachers of the faithful should be brought before laymen as judges, and also the experience that many laymen were greatly inclined to oppress the clergy (c. 3 in VIto de immun., III, 23), led the Church to withdraw her servants even in civil matters from the secular courts, and to bring them entirely under her own jurisdiction.

In the Roman Empire, in virtue of the decisions of the synods, a cleric could in civil disputes cite another only before the bishop (cc. 43, 46, C. XI, q. 1). However, these synodal decrees obtained no recognition from the lay courts, until Justinian relegated all disputes of clerics among one another and complaints of laymen against clerics to the ecclesiastical forum (Novella lxxix, lxxxiii, cxxiii, cc. 8, 21, 22). In the Frankish kingdom, also, clerics could Summon one another only before the bishops in civil causes (First Synod of Mâcon, 583, c. 8), while laymen engaged in a civil dispute with clerics could proceed before the secular court only with the bishop's permission (Third Synod of Orléans, 538, c. 35). The Edict of Clotaire II (614), c. 4, altered the existing laws by determining that at least actions for debt against clerics might also be brought before the episcopal tribunal. The Carlovingian legislation made herein no alteration, but it forbade clerics expressly to appear personally before the civil courts, ordering them to appoint a defender (advocatus) to represent them (Admonitio generalis, 789, c. 23).

In criminal causes, the bishop had in the Roman Empire no jurisdiction, except in trivial matters. To him pertained only the deposition of the criminal cleric before punishment was inflicted by the secular judge (Novella cxxiii, c. 21, § 1; cxxxvii, c. 4). In the Frankish kingdom bishops were condemned and degraded at the synod, whereupon the secular court executed the sentence of death, when necessary. Still more in the case of the other clergy did the power of the lay courts to inflict punishment prevail. But, from the time of the Edict of Clotaire II (614), priests and deacons began to be treated in the same manner as the bishops. In this respect the Carlovingian legislation remained essentially the same (Synod of Frankfort, 794, c. 30). The gradual liberation of the clergy from the lay forum received a further incentive from the ever-increasing number of ecclesiastical causes, from the acceptance of the dictum that the clergy were subject to personal, and the Church to the Roman law, from the ecclesiastical prohibition to clerics to engage in duels or ordeals, from the growing political importance of the bishops as counts and territorial lords after the disintegration of the Carlovingian Empire. Thus, in view of the ferocious acts of violence committed by the laity, Pseudo-Isidore could demand in the most urgent terms that no cleric be summoned before the secular courts (cc. 1, 3, 9, 10, 37, C. XI, q. 1). This principle was called into life by the medieval popes, and, by decretal law, the exclusive competence of ecclesiastical judges over clerics in civil and criminal causes was established (cc. 4, 8, 10, 17, X de iud., II, 1; cc. 1, 2, 9, 12, 13, X de foro compet., II, 2). In feudal affairs alone were the clergy subject to the secular courts (cc. 6, 7, X de foro compet., II, 2). The ecclesiastical courts were thus competent for civil causes of clerics among one another, of laymen against clerics, and for all criminal causes of clerics. This privilegium fori was also recognized by imperial laws (Authentica of Frederick II, "Statuimus", 1139 ad 1. 33, C. de episc. I, 3). From early times, however, it met with great opposition from the State. With the growing ascendancy of the State over the Church, the privilege was more and more limited, and was finally everywhere abrogated.

Today, according to secular law, the civil and criminal causes of clerics belong to the lay court. Only with respect to the purely spiritual conditions of their station and office, are clerics subject to their bishop, and then not without certain state limitations — especially with respect to certain practical punishments. However, the Church maintains in principle the privilegium fori, even for those in minor orders, provided that they have the tonsure and wear clerical garb, and either already serve in a church or are preparing in a seminary or university for the reception of higher orders (Council of Trent, Sess. XXIII de Ref., c. vi; Sess. XXV de Ref., c. xx; Syllabus, n. 31). On the other hand, the popes have in their recent concordats to a great extent relinquished this position. They have, however, demanded that the bishops should be apprised of criminal proceedings against a cleric, so that he may be able to take the necessary ecclesiastical measures (Bavarian Concordat, art. xii, litt. c.; Austrian Concordat, art. xiii, xiv; Concordat with Costa Rica, art. xiv, xv; that with Guatemala, art. xvi, xvii; that with Nicaragua, art. xiv, xv; that with San Salvador, art. xiv, xv). This warning of the bishop is also ordered by the laws of many states, as well as a similar regard for the cleric himself in the case of criminal proceedings (Regulation of the Prussian Minister of Justice of 12 June, 1873; of 25 August, 1879; Austrian Law of 7 May, 1874, §29).

But, wherever the pope has not relinquished the privilegium fori, lawgivers and administrators, who directly or indirectly compel the judges to summon ecclesiastical persons before the secular forum, incur excommunication specially reserved to the pope (Pius IX, "Apostolicæ Sedis moderationi", 12 October, 1869, I, 7). In places where the papal derogation of the privilegium fori has not been secured but where justice can be obtained only before the secular judge, a lay complainant, before summoning a cleric before the secular courts, should seek the bishop's permission, or, if the complaint be against a bishop, the permission of the pope. Otherwise, the bishop can take punitive measures against him (S. Congregation of the Inquisition, 23 January, 1886). It is also in accordance with the spirit of the privilegium fori that it is ordered in many dioceses that all complaints of and against clerics be laid first before the bishop for settlement; should no settlement be reached, the case may then be brought before the secular court [Archiv für kathol. Kirchenrecht, VII (1862), 200 sqq.; LXXXIII (1903), 505 sq., 562; LXXXV (1905), 571; LXXXVI (1906), 356 sq.].

Privilegium immunitatis

This consists in the exemption of ecclesiastical persons, things, and places from certain general obligations and taxation. The immunity is, therefore, either personal, or real, or local. Personal immunity is the exemption of the clergy from certain public burdens and obligations, which the general religious sentiment of the people declares in keeping with their office or which render the discharge of their calling difficult. Whether this privilege, as well as the other clerical privileges, rests on Divine law, the Church has never dogmatically decided, although canon law declares that churches and ecclesiastical persons and things are free from secular burdens according to both Divine and human law (c. 4 in VIto de cens., III, 20); that ecclesiastical immunity rests on the Divine command (Council of Trent, Sess. XXV de Ref., c. xx); and that it is false to assert that ecclesiastical immunity can be traced only from secular law; that the immunity of the clergy from military service could be abolished without any breach of the natural law or of justice, nay that it must be abolished in the interests of progress and civil equality (Syllabus, nn. 30, 32).

In accordance with the liberties granted the pagan priests, the Christian emperors after Constantine exempted the clergy from the obligation of undertaking municipal offices, trusteeships, guardianships, and all public functions, from military service, quartering, and the other personal munera sordida (later called villainage), and in part also from personal taxation (Cod. Just., 1. I, t. 3 de episc. Novella cxxiii, c. 5). For the most part these privileges also prevailed in the Teutonic kingdoms. Thus, Frederick II exempted the clergy from all taxation and from all socage and teaming (Authentica, "Item nulla" 1220 ad 1. 2, C. de episc. I, 3). But decretal law (c. 3 in VIto de immun. III, 23; c. 3 in Clem. de cens. III, 13) demanded the complete immunity of the clergy (cc. 2, 4, 7, X de immun. III, 49; c. 4 in VIto de cens. III, 20; c. 3 in VIto de immun. III, 23; c. 3 in Clem. de cens. III, 13; c. un. in Clem. de immun. III, 17). This immunity was indeed in the Middle Ages, and especially at the end, complete, since in many cases we find the secular rulers doing their utmost to impose secular burdens on the clergy. The Council of Trent (Sess. XXV de Ref., c. xx), therefore, again exhorts the princes to respect this privilege. In recent times, and especially since the French Revolution, the State's demands on the clergy have been increasing. Hence the above-cited explanations of Pius IX in the Syllabus, nn. 30, 32.

The exemption of the clergy from national taxation is today almost entirely abolished; their exemption from municipal taxation still continues in some places. In Austria and Germany clerics are exempt from public offices and services and from serving as assessors and jurors. In these countries the clergy are also free from undertaking trusteeships, if they do not obtain the consent of their superiors. Finally, candidates for the ecclesiastical state, and still more ordained clergymen, are exempted in Germany and Austria from military service under arms. Less favour is shown the clergy in Italy, and practically none in France since the separation of Church and State. Conditions vary greatly in other lands.

Privilegium competentiœ

This is a right possessed by the clergy, in accordance with which, in the case of executions against their property an income, sufficient to constitute a livelihood, must be left to them. A beneficium competentiœ was enjoyed by the Roman soldiers (fr. 6, 18, D. de re iudic. XLII, 1). The Glossa argues that, since the cleric is a miles cœlestis militiœ (cf. also c. 19, C. XXIII, q. 8), the same privilege should be recognized in his case. But this constitutes as poor a foundation as the c. "Odoardus" (c. 3, X. de solut. III, 23), according to which excommunication may not be inflicted on an insolvent cleric, who binds himself to pay on the improvement of his financial position. The origin of the privilege is to be referred rather to custom and to the idea expressed in many canons, that a cleric may not be brought into such a position that he is forced to seek a livelihood in an unworthy manner. In both theory and practice the privilege afforded protection from personal arrest, foreclosure of a mortgage, and from the immediate vacation of property in favour of the lay person. It also extended to the patrimony forming the title of ordination. On the other hand, if the cleric has judicially denied his guilt, has been guilty of a fraud, disregarded cautions, or if the lay person be poorer than the debtor, the privilege is lost.

Since the abolition of the privilegium fori, the scope of the privilegium competentiœ has been dependent on the state laws. Thus, according to § 850, Ziff. 8 of the civil suit regulations of the German Empire, the yearly income or the pension of clerics is free from seizure to the extent of 1500 marks, and of the excess only one-third is liable. According to § 811, Ziff. 7 8 10, all objects necessary for the discharge of the clerical calling (e.g. books, proper clothing) are also exempt from seizure. In Austria, according to the law of 21 April, 1882, 800 gulden annually are exempt in the case of clergy employed in the care of souls and ecclesiastical beneficiaries, and 500 in the case of other clerics. In Italy also the privilegium competentiœ still prevails, but it has been abolished in France.

As the privilegia clericorum are the legal consequences of the religious station, granted for the protection of the clerical calling, they may not, being the rights of a class, be waived by any individual, nor may they be withdrawn from an individual except in specified cases. They are forfeited by degradation (c. 2 in VIto de pœn. V, 9); by the committing of a serious criminal act and simultaneously laying aside the clerical garb in spite of a triple warning of the bishop (cc. 14, 23, 25, 45, X de sent. excomm. V, 39; c. 10, X de iud. II, 1; c. 1, X de apostat. V, 9); by leading an unseemly or despicable life and simultaneously laying aside the clerical garb spite of three warnings from the bishop (c. 16, X de vita et honest. cleric. III, 1; c un. in VIto h. t. III, 1; c. 1 in Clem. h. t. III, 1); and finally in the case of clerics in minor orders by laying aside the clerical garb (Pius IX, 20 September, 1860).

I

Like clerics, consecrated and sacred things and places enjoy certain privileges and freedom from burdens and obligations; this is based on the privilegium immunitatis, and is termed real or local immunity. All objects intended for ecclesiastical use are termed res ecclesiasticœ. Res ecclesiasticœ in this wide sense are divided into res ecclesiasticœ in the narrow sense and res sacrœ. Ecclesiastical things (res ecclesiasticœ in the narrow sense), or ecclestiastical property (patrimonium or peculium ecclesiasticum), mediately maintain the Divine worship, and include all buildings and real property belonging to the Church except the churches and cemeteries, the funds for the maintenance of the servants of the Church (bona mensœ, bona beneficii), and the ecclesiastical buildings (bona fabricœ), and finally the property designed for charitable objects or pious foundations (res religiosœ, causœ piœ). Sacred objects (res sacrœ) are immediately connected with Divine worship, and are set apart from all other things by an act of worship or consecration as things consecrated (res consecratœ), and by benediction as things blessed (res benedictœ). To res consecratœ belong churches, altars, chalices and patens; to res benedictœ a series of ecclesiastical utensils and cemeteries.

As the ecclesiastical property serves for the public good, it was exempted by the Roman emperors from all the lower and extraordinary burdens, but not from the regular taxes (1. 3, C. de episc. I, 3). This example was followed in the Frankish empire, in which church property was subject to all the ordinary public burdens. In addition, however, many extraordinary burdens were imposed, such as the dona gratuita to the king, the furnishing of accommodation for him on his journeys, the rendering of court and war services to him as their feudal lord, and many arbitrary forms of oppression. Consequently, the Third Lateran Council (1179) demanded the complete exemption of church property from taxation, and that only in case of public need, and then only with the consent of the bishop or of the pope, should it be subjected to public burdens (cc. 2, 4, 7, X de immun. III, 49; c. 1, 3, in VIto h. t. III, 23; c. un. in Clem. h. t. III, 17; c. un. Extrav. commun. III, 13). Frederick II accordingly granted church property exemption from all taxation (Authentica "Item nulia" ad 1. 2, C de episc. I, 3). After the close of the Middle Ages, however, secular rulers subjected to a great extent church property to public burdens; the Council of Trent therefore admonished them to respect the old privilege of immunitas realis (Seas. XXV de Ref., c. xx), but without much success. In modern and recent times the tendency has everywhere been to subject church property more and more to public taxation. The assertion that the privilege of immunitas realis was of purely secular origin was declared erroneous by Pius IX in the Syllabus, n. 30. Here and there, as in Germany and Austria, the State laws accord partial freedom from taxation to ecclesiastical property. In Italy the papal property is alone exempt; in France exemption ceased with the separation of Church and State. In the United States the Church shares in the exemption generally granted to all institutions labouring for the public good. The conditions vary much in the other lands.

For places and things consecrated to the Divine service no rights can be claimed which involve a profane use. Consequently, such objects are in this sense extra-commercial. Otherwise, in sharp distinction from the res sacrœ among the Romans and contrary to the practice of the early Christian centuries, they may, in accordance with the Germanic conception of private churches, be possessed by private individuals and even enter into civil transactions and commerce. In churches and cemeteries, however, no judicial transactions, political meetings, markets, banquets, theatrical performances, secular concerts, dances etc., may be held. The bishop may in all cases sanction their use outside of Divine service, provided that all scandal be avoided. Similarly, the use of the church-bell for secular purposes may be allowed or tolerated apart from cases of need, where the propriety of its use is self-evident (cc. 1, 5, 9, X. de immun. III, 49; c. 2 in VIto h. t. III, 23). Mischief, disorder, and disturbance in the church (especially during Divine service), robbery of the church, the injury or destruction of things or buildings consecrate to the Divine service, disturbance of the peace proper to the cemetery or churchyard, are punished by the State as qualified crimes.

To the ecclesiastical local immunity belongs the right of asylum of churches. Even in the Old Testament it was decreed that the murderer or homicide might be safe from vengeance in certain places, until the public had come to a decision concerning his surrender (Exodus 21:13; Numbers 35:6 sqq.; Deuteronomy 19:2 sqq.). Among the Greeks, and especially among the Romans, the temples, the altars, and the statues of the emperor were places of refuge (1, l, C. de his qui ad statuas confugiunt I, 25). Thus, when Christianity became the religion of the State, it followed as an inevitable consequence that the emperor should also raise to the right of sanctuary the churches and bishops (C. Just. de his qui ad ecclesias confugiunt I, 12). But, as the ecclesiastical right of sanctuary was still very limited, the Synod of Carthage (399) asked the emperor to remove these limitations. In the German empires it was the Church which founded the right of asylum as a protection against the rude conception of justice then prevalent and against savage revenge, by decreeing with the assent of the State that a criminal, who had reached the church or its immediate neighbourhood, might be delivered up only after he had performed ecclesiastical penance, and after the secular judge had promised that sentence of death or maiming would not be inflicted upon him (cc. 19, 36, C. XVII, q. 4, Capitulare de partibus Saxoniæ, 775-90, c. 2). The right of asylum, which had its origin in this manner and which was subsequently extended to the surroundings of the church, the cemeteries, the dwellings of bishops and parish-priests, seminaries, monasteries, and hospitals, was upheld especially by the popes, although they excluded from the privilege very great criminals, such as highway robbers, murderers, and those who chose the church or churchyard as the scene of their crimes so as to enjoy immediately the right of asylum (cc. 6, 10, X de immun. III, 49; c. 1, X de homic. V, 12).

Since the close of the Middle Ages, however, State legislation has been opposed to the ecclesiastical right of asylum, so that the popes have been compelled to modify it more and more (Gregory XIV, "Cum alias" of 24 May, 1591; Benedict XIII, "Ex quo divina", 8 June, 1725; Clement XII, "In suprema justitiæ", 1 Feb., 1734; Benedict XIV, "Officii Nostri", 15 March, 1750). The modern penal codes no longer recognize an ecclesiastical right of asylum, and the Church can all the more readily acquiesce therein, as modern justice is humane and well-regulated. However, even today those who violate "ausu temerario" the ecclesiastical right of asylum incur excommunicatio latœ sententiœ simply reserved to the pope (Pius IX, "Apost. Sedis moderationi", 12 Oct., 1869, II, 5).

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