Privileges of the Clergy

PRIVILEGES OF THE CLERICS. - These are special immunities that form part of the broader category of ecclesiastical immunity (v.) and together represent the so-called personal immunity. These privileges, which sum up the guarantees granted to the clerical state in consideration of its sacred character and of the freedom necessary for the exercise of the related functions, are four in number, known by the historical designations: canonis, fori, immunitatis, competentiae. In current canon law they are respectively regulated as follows.

I. « PRIVILEGIUM CANONIS »

It is a special protection against violence. It takes its name from can. 15 of the Second Lateran Council of 1139 (c. 29, XVII, q. 4).

The CIC declares that those who inflict real injury (that is, by acts of violence) upon a cleric commit the crime of sacrilege (v.) (can. 119). It is therefore a special penal protection granted to clerics in defense of their person, and it is extended (besides to all clerics, even those merely tonsured) to religious of both sexes, including novices (can. 614), and to members of pious associations living in common under a rule approved by authority, even without public vows (can. 680). The privilege concerns, as has been seen, only realis iniuria, that is, acts of violence that materially touch the person, and that harm either the integrity of the body, or honor or dignity (for example, spitting at a person, tearing of garments, etc.), or the personal freedom of the cleric. The gravity of the sanction imposed for the violation of this privilege is graduated according to the dignity and position of the offended party. Whoever uses violence against the Pope incurs excommunication reserved in a most special manner to the Apostolic See: he is ipso facto vitandus, infamous by law, and, if a cleric, must be degraded; if against a cardinal or legate of the Pope, he incurs excommunication specially reserved to the Apostolic See, is infamous by law and shall be deprived of benefices, offices, dignities, pensions or any other assignment, but not degraded; if against a patriarch, archbishop, bishop, even titular, he incurs excommunication latae sententiae, specially reserved to the Apostolic See; if against other clerics or religious, he is subject to excommunication reserved to his own Ordinary, who may add other fitting penalties (can. 2343).

Given the gravity and nature of the sanction, the violation of the privilege naturally presupposes an adequate intentional element. Already with regard to the necessity of such an element, the old canonists taught that the expression suadente diabolo used by the well-known canon signified precisely the proved intention, the moral imputability, necessary to constitute the offense (Pateri), and that therefore he would not incur the censure who struck, or even killed, the cleric in just self-defense, or by accident not imputable, or in ignorance of his character. Similarly it is held in current law that if the injury is inflicted through inadvertence, or following a lightly culpable impulse, or in personal defense that does not exceed the reasonable limits permitted, neither the qualification nor the sanction applies.

II. « PRIVILEGIUM FORI »

By virtue of can. 120, clerics in all civil (contentious) or criminal cases must be judged (convenuti debent) by an ecclesiastical judge, nisi aliter pro locis particularibus legitime provisum fuerit; that is, except where it has been legitimately provided otherwise (that is, by virtue of a concordat or a territorial pontifical law or even — according to the dominant doctrine — of a custom) for individual territories. According to the same canon, moreover, in order to bring an action against clerics before lay tribunals the authorization of ecclesiastical authority is necessary, that is, of the Holy See or of the Ordinary according to the hierarchical rank or the office of the defendant. Whoever infringes these provisions is struck by excommunication or by lesser penalties, in relation to the rank of the defendant. Ordinaries, however, must not deny to laypersons, save for a just and grave cause, the faculty to summon before the secular tribunal ecclesiastics of lower hierarchical rank, principally when attempts at an amicable settlement of the dispute have failed (can. 120 § 2). On the other hand, clerics summoned in judgment by one who has not requested the authorization of ecclesiastical authority may, in order to avoid greater evils, appear before the lay judge, informing the Superior from whom the license should have been obtained (can. 120 § 3). The privilege refers to the case in which the cleric is cited before the lay forum as accused or defendant in the proper sense; not as a witness, or in the capacity of administrator or guardian, and likewise when he is summoned by concession or connection of cause (for example, called in warranty), or when, himself becoming plaintiff against a layperson, he is in turn counter-sued by the opposing party.

The recognition of the privilegium fori of clerics, which is connected to the more general question of the recognition of the ecclesiastical forum (that is, of the jurisdiction of the Church in the sphere of relations, even in civil or penal matters, otherwise pertaining to the State) has been among those most contested by modern state legislations, after a long period of almost general observance.

Its origin in fact, at least for civil cases, is traced back to Justinian's legislation (Nov. 1, LXXIX, c. 8; 1, LXXXIII, c. 21; 1, CXXIII, c. 22). The councils of the Frankish and Carolingian eras confirmed the principle, albeit with some limitation, and then the great popes of the Middle Ages, Alexander III, Celestine III, Innocent III, extended its application to all civil and criminal cases, except only cases of a feudal nature (c. 1, 6, 7, X, II, 2). After the Decretals, with the progressive centralization of state institutions, opposition to the privilege gradually became more pronounced, while the Church, for its part, never consented to renounce it in principle. Therefore it reaffirmed it at the Council of Trent (sess. XXIII, De ref., c. 6; sess. XXIV, c. 20), and more recently in the Syllabus of Pius IX (prop. 31) and in the motu proprio of Pius X, Quantavis diligentia, of 9 Oct. 1911, where it was proclaimed that not only persons invested with public power, but also private individuals who clerics before the secular tribunal without authorization of the ecclesiastical authority, they fell under the excommunication reserved to the Holy See. However, the latter later specified that ancient and immemorial customs and concordat concessions that circumscribed or had abrogated the p. could legally be maintained. This doctrine, as has been seen, passed into the Code. It was doubted whether, in countries where the p. is legitimately abolished for one of the aforementioned causes (custom or concordat agreements), the prescription of can. 120 § 2 must likewise be observed, which requires the authorization of the ecclesiastical authority to summon clerics before the tribunals of the State. Authoritative opinions favor the affirmative. As for the territorial law for Italy — where, as is known, by the Siccardi law, 9 Apr. 1850 no. 1013, later extended to the annexed provinces, the ecclesiastical forum had been abolished by a unilateral act of the State, never recognized by the Holy See — currently the prevailing doctrine holds the p. of the forum abolished in criminal matters, by effect of the Lateran Concordat, and in particular of the provision of art. 8 which considers the case of referral to the criminal magistrate of an ecclesiastic or a religious for a crime. From this it is inferred that, since the Holy See agreed and approved that in case of crime the priest or religious may be judged or even condemned by the secular forum, requesting only that in case of condemnation he not be detained with lay condemned persons but in a separate place, it has thus recognized the competence of the secular tribunal to judge the cleric, and therefore renounced the immunity of the privileged forum. Some would deduce from this a fortiori the renunciation of the ecclesiastical forum also for contentious procedures, inasmuch as in these the reasons of regard for priestly dignity would not apply as they do for criminal ones; but others object that in the silence of art. 8 it cannot be held that the Church has renounced the privilege, and still others that this is understood to be preserved in the sense that the plaintiff is bound to secure the license of the ecclesiastical authority according to the prescription of can. 120 § 2 CIC (the practice more commonly observed).

III. • PRIVILEGIUM IMMUNITATIS. - By this privilege, also called p. exemptionis, there was formerly understood an immunity of the cleric which embraced in principle all the services and burdens deriving from civil jurisdiction, hence both the burdens properly personal and incompatible with the clerical state (such as military service [v.], the office of judge in profane causes, etc.) and the burdens constituted by the obligation of paying taxes both personal and patrimonial (the latter also usually called real burdens). The p., whose origin can be traced back to the immunities already attributed to pagan priests and which the Christian emperors then granted to the ministers of the Gospel, was therefore to exempt clerics from personal services, unsuited to their state, and also to bring about the exemption of their goods from public taxes. In practice, however, the institution in the course of the centuries did not remain always clearly delineated except insofar as it was a true and proper personal immunity of the cleric (called for that reason also privilegium servitiorum), while immunity from taxes was often confused or promiscuously lumped together with the real immunity belonging to ecclesiastical goods. The CIC, reaffirming the various p. of clerics, thus provides in regard to this: Clerici omnes a servitio militari, a muneribus et publicis civilibus officiis a statu clericali alienis immunes sunt (can. 121). The canon therefore prescribes the exemption of clerics from the performance of military service and from public charges and offices contrary to the spirit and the clerical state. A principle dictated both by the necessity of guaranteeing the freedom and dignity of clerics, and by that of keeping them estranged from any activity contrary or unsuited to the gentle character required for the divine service. Hence to this p. there corresponds a parallel duty in clerics to abstain from certain offices and activities (cf. cann. 139, 141, 188, n. 6). In the text of can. 121 no express mention is made of the exemption of clerics from taxes. It has therefore been asked whether this exemption too could be understood as included in the immunity a muneribus and public civil offices alien to the clerical state of which the canon speaks, or not. Among the various opinions on the matter, it seems that it can be affirmed that in can. 121 munus is intended in the sense of service, coordinated with, if not equivalent to, the concept of officium, and that therefore exemption from tax burdens should not be understood as included in the aforementioned norm. This, on the other hand, although still mentioned in treatments prior to the Code, no longer represented in practice anything but a historical memory, not only because it had for the most part fallen into desuetude, but also by effect of the express derogation from such exemption contained in numerous concordats concluded by the Holy See prior to the Code. Whence it could well be said that on this point there had already been established, at the time of codification, as particular law in many States, a true ius concordatarium which took note of the already accomplished abolition of the privilege. The CIC thus did nothing but sanction, albeit tacitly, what was by then the universal discipline in effect in force. Reduced therefore the privilege of immunity to exemption from military service and from public charges and offices, one can see in it, in fact, in this more circumscribed configuration, a more or less ample and explicit recognition in various concordatory and state legal systems. For Italian territorial law, the matter is regulated in arts. 3 and 4 of the Concordat. By effect of these, in addition to the faculty of postponing military service to the twenty-sixth year of age granted to seminarians and novices, clerics in sacris and professed religious are exempted from military service, except in the case of general mobilization. In the case, moreover, of general mobilization, priests with care of souls (Ordinaries, parish priests and coadjutors, etc.) are dispensed from presenting themselves at the call-up. Other clerics or religious are preferentially assigned to medical services and, if priests, retain the ecclesiastical habit, exercising the sacred ministry among the troops under the ecclesiastical jurisdiction of the Military Ordinary (art. 3). Ecclesiastics and religious are furthermore exempt from jury duty (art. 4).

IV. • PRIVILEGIUM • O • BENEFICIUM COMPETENTIAE. - This privilege or benefit, already granted in Roman law to certain categories of debtors (among them veterans and soldiers in general), by virtue of which they had the right not to be condemned to pay except in proportion to their means (in id quod facere possunt), later extended by the glossators to clerics, by analogy between earthly and priestly military service, was founded especially on a very ancient custom supported by a broad interpretation of the celebrated decretal Odoardus (c. 3, X, III, 23).

Now in this matter can. 122 affirms the cleric's right that, where he is obliged to satisfy a creditor, he not be deprived of the minimum necessary for dignified maintenance, at the prudent discretion of the ecclesiastical judge (cf. also can. 1923 § 1). The cleric's obligation to satisfy the creditor's claims as soon as possible remains firm. In practice this privilege has by now lost almost all meaning, given the limits placed on forced execution in modern legislation. An exemption from distraint established in art. 6 of the Concordat with Italy cannot take on the character of a recognition of the privilege, because it is granted in equal measure to State employees.

V. NATURE OF THE PRIVILEGES OF THE CLERGY

The p. of c. of which mention has been made thus far constitute prerogatives which, insofar as the expression may be fitting for institutions of the canonical order, must be considered matters of public order, being established not so much in the personal interest of the individual as in that of the category to which he belongs. Therefore they are inalienable: the cleric cannot renounce them, but can only lose them for reasons provided by law. Such are reduction to the lay state and perpetual deprivation of the right to wear the ecclesiastical habit. If this penalty is remitted or the subject is readmitted to the clerical order, the lost p. are reacquired (cann. 123, 213 § 1, 2304). In the case in which the deprivation of the right to the ecclesiastical habit is only temporary, for as long as it lasts the p. remain suspended (can. 2300). As for the persons in whose favor the p. are established, it must be borne in mind that they belong not only to true and proper clerics, but also to religious of both sexes, including novices and conversi

(cann. 641, 490), as well as to the members of pious societies with common life and an organization similar to that of religious (can. 680).

Arnaldo Bertola