EXEMPTION. - In canon law the term e. from its rudimentary etymological meaning (ex emere: to take away, to free from...) has come to denote the liberation of a person, physical or moral, from a pre-existing and obligatory subjection to a superior.
I. CONCEPT
The divinely positive structure of the Church entails that all the faithful, besides being subject to the supreme pontiff, are in principle subject to a residential bishop, or to that local Ordinary who replaces him in one of the ways established by canon law (abbot or prelate nullius, vicar or apostolic prefect, apostolic administrator, capitular vicar). But if on the basis of divinely positive law one can and must fix with this absoluteness the principle of the submission of all the baptized to the local Ordinary, as regards the objective extension of such submission one cannot establish a principle equally easy and precise. In fact, while the jurisdiction of the local Ordinary is necessarily tied to territory, the universality of the Church drives most religious institutions to be spread across many dioceses, having arisen providentially as a deduction ad consequentias from the very purpose of the society founded by Jesus Christ and recognized by canon law. Now, it is obvious that in the multi-diocesan character of these institutions there is inherent the demand for that freedom from the power of the local Ordinary without which it would prove impossible, or at least very difficult, to carry out the purpose of such institutions. This demand, entailing a corresponding exclusion of the "due submission" (presupposed by the concept of exemption), thereby circumscribes, with regard to objective extensibility, the above-mentioned principle of the submission of all the baptized to their own Ordinary. Nevertheless, the difficulty of determining with precise norms this proprium of freedom has meant that both in practice - that is, in the measures taken by the competent ecclesiastical authority - and in doctrine, the objective extension of submission to the local Ordinary was made to coincide with the principle of the submission of persons; that is, one started from the presupposition of a due total submission, excluding any native freedom.
This criterion also held with regard to the other grades of the ecclesiastical hierarchy introduced by canon law, which naturally caused the possible and actual exemptions to grow in step. The increased number of ecclesiastical authorities furthermore multiplied the active subjects of exemptions, that is, the superiors having the possibility of freeing their subjects from the subordinate superior, it being understood as a limit-norm that no superior can ever dispense from submission to his own authority.
II. THE EVOLUTION OF EXEMPTION OVER THE CENTURIES. WAYS OF GRANTING IT
The granting of exemption, over the course of the centuries, obeyed various causes which can, however, be reduced to two groups, which will be called respectively violent causes and normal causes. In the first group are placed simony, concubinage, the Western Schism, the intrusion of civil power into ecclesiastical affairs, etc. (since an unworthy bishop could not be deposed, churches, monasteries, etc. were exempted). Once these violent causes ceased, the exemptions granted to remedy these exceptional situations should in themselves have disappeared, had it not been all too human for the interested parties to seek to prolong, at least partially, the condition of favor in which they had come to find themselves.
But in a certain sense - that is, in its effects in depth - the greatest violence of all the causes of ecclesiastical exemption was the spread of the ecclesia propria, a fruit of Germanic law, whose criterion of the prevalence of rights emanating from landed lordship over jurisdictional rights made it possible to arrive tout court at complete exemption from the local Ordinary.
Among the normal causes, on the other hand, mention must be made first of all of the cenobitic form of religious life, at first officially recognized, and subsequently, from the time of the Fourth Lateran Council (1215), become an essential juridical element of the religious state. With it, in fact, there arises, and with its gradual consolidation (monasteries, monastic congregations, centralized Orders) there develops, in parallel with the ordinary hierarchy, the internal hierarchy of religious institutes, which around the nucleus of the natural liberties of any lawful association (not sacrificable in view of a greater supernatural good) adds at least that further liberty which prevents religious superiors from being reduced to mere vicars of the local Ordinary. Mention must also be made of the character of clerical religion officially recognized by canon law, by which the incorporation of the clerical life into the religious life is effected, the demands of which exclude that the religious superior, with regard to the priestly formation of his subjects, should find himself, in relation to the local Ordinary, in the condition of the rector of a diocesan seminary.
To this twofold order of causes one cannot fail to add, for certain epochs, the pursuit of ever new privileges, to which the influence of the political-social situation created by feudalism, corporatism, communal fragmentation, etc., was not extraneous.
In any case, especially with the Council of Trent, canonical discipline systematically frees itself of the exemptions which, due to the changed conditions of the times, would have proved harmful to the ecclesiastical body, redirecting the surviving ones and steering those which would be granted thereafter toward a rational plan, an account of which will be given by setting out the results obtainable from the CIC as regards religious.
In order to understand the current ecclesiastical discipline concerning exemptions, it is indispensable to know the various kinds of them, which is moreover connected with the historical vicissitudes of canon law, and, in particular, with the ways of granting such exemptions and with their content.
The first exemptions (taking the word in its broadest sense) with which the Roman pontiffs wished to assure a suitable freedom from the local Ordinary to various monasteries of the West (the wise provisions of St. Gregory the Great stand out) were granted directly to the moral person constituted by the monastery. Later, on the other hand, as has already been mentioned, under the influence of Germanic law, even in the Church it came to be declared that certain places were exempt, making them the vehicle of exemption for certain persons dwelling in them. So that, rightly, the first exemptions were called personal, the second local, even if, as is obvious, the subject of the exemption was always persons. The new aspect assumed by religious life with the Mendicants through the programmatic exercise of the apostolate, often taking these religious outside the convent, made it necessary to protect their persons directly by means of special and personal exemptions. To integrate these, the places of their dwelling were also exempted, thus creating a new type of exemption of places, not to be confused with the local exemption and which could be called exemplio locorum.
Once this clarification is made, it follows intuitively that the expression mixed exemption cannot be admitted to indicate the complex of local exemptions and personal exemptions, whereas on the other hand such an expression can be adopted for the combination of the exemptiones locorum and personal exemptions (and therefore can be applied to the current exemption enjoyed by regulars and other exempt religious).
From the diversity of juridical effects attached to the local exemption there originates the distinction of this exemption into passive and active, and the subdivision of the passive into plena and semi-plena. It happened, that is, that certain monasteries and certain churches of particular importance, after having obtained a more or less extensive exemption in favor of the monks or the clergy belonging to the monastery or the church - an exemption consisting in the withdrawal from the power of the diocesan bishop (= "negative" advantages, for example, that of escaping his canonical penalties) and in the transfer of an almost equivalent power to the abbot or prelate placed at the head of the monastery or the church (= "positive" advantages) - obtained the ability to extend a part of the exemption to the population included within their territory. When only "negative" advantages passed to that population, there was the exemplio localis passiva plena: when, on the other hand, the abbot or prelate could exercise a certain power over that population, that is, agere in some way in its favor, there was the exemplio localis activa; finally, when not even the negative advantages could be communicated, there was talk of exemplio (localis) passiva minus plena. The apex of the exemplio activa will be touched by the abbeys and the prelatures nullius. Note that in the current exemption, enjoyed by exempt clerical religious, a new type of "activity" occurs, inasmuch as, not by virtue of a local exemption, but derivatively from the whole of the personal exemptions and "of places" forming the unitary complex of the privilegium exemptionis (prerogative of exempt religious), even those who dwell stably by day and by night in the institutes of religious life, by reason of education, illness, service and hospitality (cf. can. 514 § 1) come in a certain way to avail themselves of the exemption with regard to confessions, preaching, vows, etc., being able to confess to confessors authorized solely by the legitimate religious superior, to listen to preachers approved solely by him, etc.
III. THE OBJECTIVE EXTENSION OF EXEMPTION
As a complement to this summary introduction, three observations must be added concerning the extent that this special juridical-canonical provision can assume.
1) The nature of the passive subject (depending on whether it is a physical or moral person, of a clerical or lay religion, etc.) makes possible a greater or lesser objective extent of the exemption. For example, in order for the secular clergy to be exempt from the local Ordinary, it is enough that the exercise of the latter's power be excluded in certain points of canonical discipline; on the other hand, in order for clerical religions — since it is incongruous that the Holy See exercise directly over them all the power that of itself would belong to the local Ordinary — to enjoy effectively the exemption from said Ordinary, it is necessary that a power almost equivalent to that of the local Ordinary pass into their superiors. 2) Every time — that is, for any point of canonical discipline — in which one proceeds to the liberation of a physical or moral person from the pre-existing and obligatory subjection to a superior, the exemption is thereby verified; nevertheless, one must distinguish the cases of exemption from the various juridical institutions in the matter of exemption. 3) Canon law has for centuries given to the expression privilegium exemptionis the specific meaning of a systematic concession of exemption from the local Ordinary, from which one derogates only by means of determined exceptions (praeterquam in casibus a iure expressis). Granted with this official acceptation (cf., for example, cann. 616 § 1, 618 § 1) of the expression privilegium exemptionis, it is the qualification of religio exempta (can. 483 n. 2) given to all Orders — with the exception of nuns who do not depend on a regular prelate
(can. 613) — and to religions of simple vows to which the privilegium exemptionis has been specially granted (can. 618 § 1). But, evidently, just as outside the unitary complex of the privilegium exemptionis there is room for precise and effective exemptions circumscribed to determined points of canonical discipline, so it is not excluded that religious not numbered among the "exempt" (therefore, in this sense, "non-exempt") may enjoy, and effectively do enjoy, determined subtractions from the pre-existing and obligatory subjection to the local Ordinary. Therefore, in order to respect the official denomination religio exempta, and on the other hand in order not to contradict reality, one must logically distinguish between exemption properly so called (called privilegium exemptionis) and improper exemption (juridical and concrete liberation from some point of the normal subjection fixed by canonical discipline).
IV. EXEMPTIONS CURRENTLY IN FORCE IN CANON LAW
Coming now to the canon law currently in force, and taking into account the superior by whom one may be declared exempt, there is exemption, total or partial, from the local Ordinary, from the metropolitan, from religious superiors, from the parish priest, from the Tribunals of the Holy See. From the local Ordinary there are exempt in a truly total manner abbeys and prelatures nullius (cc. 319-28), cardinals (who are not themselves local Ordinaries; the CIC speaks expressly of the exemption of the private chapel: c. 239 § 1, 18, but that concerning judicial causes is also implicitly indicated in c. 1557 § 1, 2; moreover, a true exemption also occurs under c. 239 § 1, 2 regarding the power to confess to priests not approved by the local Ordinary, etc.), heads of State, their sons and daughters, and those who have the right to immediate succession, regarding judicial causes in general (c. 1557 § 1, 1) and matrimonial causes in particular (c. 1962), regarding the infliction or declaration of ecclesiastical penalties (c. 2227 § 1), regarding the obligation to appear as a witness at the seat of the diocesan tribunal (cc. 1770 § 2, 1), and religious, of whom more will be said below. Provision is further made for the exemption of soldiers (cf. c. 451 § 3) and of certain churches (cf. c. 344 § 1) within the limits to be fixed from time to time by the Holy See.
From the metropolitan there are exempt bishops immediately subject to the Holy See (c. 285) and exempt religious.
From the parish priest there are completely exempt diocesan seminaries (c. 1368) and exempt religious; in practice clerical religious institutes, even non-exempt ones, are also exempt; moreover, religious houses and pious works declared such by the local Ordinary may also be exempt, if the local Ordinary so disposes (c. 464 § 2). Furthermore, exemption occurs regarding the ius funerandi for cardinals (c. 1219 § 1), residential beneficiaries (c. 1220), religious and novices (cc. 1221 §§ 1-2, 1230 § 5), as well as for the servants who reside permanently in the houses of these religious and who die in those houses (c. 1221 § 3).
From the ordinary tribunals of the Holy See there are exempt heads of State etc., cardinals, legates of the Holy See, and bishops, even titular only, with regard to penal causes (c. 1557 § 1).
In the apostolic constitution Ad incrementum decepti of Pius XI (15 Aug. 1933, AAS, [1934], p. 497) the assessors and secretaries of the Roman Congregations, the protonotaries apostolic de numero, the prelate auditors of the Sacred Roman Rota, and the clerics of the Reverend Apostolic Chamber are declared exempt from the local Ordinary while they keep their domicile in Rome, and the voting prelates and referendaries of the Signatura are declared exempt under the same conditions as the foregoing.
In the law of the Eastern Church there is in force a juridical institution analogous to exemption called the right of stauropegion.
V. THE EXEMPTION OF RELIGIOUS
The categories to which all religions can be reduced as regards their freedom from the local Ordinary according to the common law (that is, setting aside the special exemptions granted to individual religions), can be grouped into three fundamental sections: exempt religions, non-exempt religions of pontifical right, and congregations of diocesan right. The foundation of the freedom of the first section is the principle of systematic exemption contained in the privilegium exemptionis, from which no derogation is permitted except in casibus a iure expressis (can. 615). The foundation of the second section is the principle of freedom as regards the internal regime, likewise not subject to derogation except in casibus in iure expressis. The foundation of the third section is the distinction between internal and external superiors.
The demands for greater freedom inherent in the clerical character of a religion, and also — though to a much lesser degree — in the fact of its being a male religion, have led to the subdivision of the sections into their respective categories. Thus in the section of exempt religions there are: clerical Orders, exempt clerical congregations, lay Orders of men, and nuns subject to a regular prelate; in the section of non-exempt religions of pontifical right: clerical congregations, male lay congregations, female congregations, and nuns not dependent on a regular prelate. In the third section: clerical congregations, male lay congregations, female congregations.
The concrete content of the freedom enjoyed by each of these categories is given by the sum of the points of canon law in which those categories are withdrawn from episcopal authority. For exempt religions this sum results, indirectly, from the exhaustive enumeration of the cases of subjection that derogate from the fundamental principle of exemption; for non-exempt religions, on the other hand, it results, directly, from the enumeration of the cases of freedom that limit the opposite principle of subjection. But for the purposes of an intuitive presentation of the first and second type of "sum," the specification derivable from the prescriptions of the CIC may also be useful in the cases in which exempt religions enjoy freedom by virtue of the fundamental principle contained in the privilegium exemptionis, and, conversely, the specification of all the cases in which the absence of the privilegium exemptionis, not attenuated by corresponding concessions of freedom, keeps non-exempt religions subject to the authority of the local Ordinary.
Since it is evidently impossible here to summarize, even in a simple enumeration of the respective canons, these juridical situations of the various categories of religions as regards their freedom from the local Ordinary, we shall dwell on only three examples. More as a matter of principle than as an example, can. 501 § 1 must be recalled, by which there is granted to exempt clerical religions, in addition to the dominative power recognized in all religions (insofar as it is susceptible of quantitative and qualitative specification, according to the juridical standing of the various categories of religions, and for that very reason a source and measure of the corresponding degree of freedom from the local Ordinary), the power of jurisdiction in the external and internal forum. With this power clerical religions attain in exemption those positive advantages in the matter of confessions, preaching, punitive power, etc., without which — especially as regards what the clerical character of such religions entails — the exemption granted by means of a fundamental principle would in reality remain maimed. The granted power of jurisdiction causes the major superiors of such religions to be numbered among the Ordinaries (can. 198 § 1), so that normally in all the prescriptions of canon law in which the term Ordinary appears, exempt clerical religions, instead of depending on the local Ordinary, depend on their own major superiors.
To non-exempt religions of pontifical right the vigent canon law recognizes, by means of a fundamental principle, freedom from the local Ordinary as regards the internal regime (can. 618 § 2, 2). Now, in order to give this principle its proper scope, one must bear in mind the extension attained by the internal regime according to the character of the religion. In clerical religions, since the clerical life is incorporated into the religious life, the internal regime, juridically, undergoes a notably greater extension than that at which the corresponding lay religions stop, and for this reason it becomes a source and measure of a greater freedom from the local Ordinary (cf. especially A. Larmona, De potestate dominativa publica in iure canonico, in Acta Congressus Iuridici Intern. Romae, 12-17 nov. 1934, IV, pp. 145-86).
Finally — also in order to justify the inclusion of congregations of diocesan right (fully subject to the local Ordinary, but ad normam iuris) within the framework of the different measures of freedom from the local Ordinary recognized for religions — it must be observed that everything which the current canon law reserves to the Holy See (whereas in the earlier discipline it was within the competence of the diocesan Ordinary) comes to constitute a true and absolute freedom from that Ordinary. Fundamental in this regard is the provision that reserves to the Holy See the suppression of the only house of which a congregation of diocesan right consisted. It is enough indeed to think what a situation of dependence the absence of such a provision would entail — and in fact did entail.