ECclesiastic Immunity
Ecclesiastical immunity is a universal privilege that exempts ecclesiastical persons and things, as well as sacred places, from certain burdens and from acts that are unbecoming to the reverence owed to sacred places and the holiness of persons.
As the definition itself indicates, ecclesiastical immunity is of three kinds: personal, real, and local, according as the exemptions apply directly to persons, ecclesiastical property, or sacred places.
When matters are strictly spiritual or sacred, or when rights are so closely and exclusively connected with the nature of the Church that civil society has no jurisdiction over them, there can be no question of immunity. The independence of the Church’s spiritual sovereignty must never be regarded as an immunity; it is a right, and moreover an essential one. Immunity does not apply to mixed matters. In general, immunity is a privilege by virtue of which a thing or person is dispensed from certain obligations that the State has validly and lawfully imposed on all its subjects.
In particular, ecclesiastical immunity is not, as some canonists (Reiffenstuel, Santi-Leitner, etc.) have thought, a right, but a universal privilege by virtue of which ecclesiastical persons, places, or sacred things enjoy exemption from certain common burdens.
The regalists of former times, liberals, and all who deny the Church a juridical character, or worse still, refuse to recognize her as a perfect society, regard ecclesiastical immunities as founded exclusively on civil laws, whose existence merely testifies to the benevolence of the State and can therefore be abrogated without the Church being able to cry out against injustice. It must be acknowledged that some ecclesiastical immunities, peculiar to other times, were the fruit of a privileged condition of the Church within another juridical order of society; but it is false to say that the whole body of ecclesiastical immunities depends solely on concessions of civil power. In other words, the concrete formulation of ecclesiastical immunities depends on positive law, and thus their development has varied over the centuries, now expanding, now contracting, according to the times and the social climate. Yet the foundation of ecclesiastical immunities lies in divine law, namely in the superiority of ecclesiastics over lay persons, a superiority inherent in their sacred character. It is this same sacred character that in some way extends even to inanimate things, such as sacred places and property, which demands special treatment of ecclesiastical places and things within the juridical and social order.
Rightly against those who proclaimed the necessity of abolishing all ecclesiastical immunity, Pius IX condemned it in the Syllabus (Fontes CIC, II, Rome 1928, props. 30, 43, pp. 1003, 1005) and in the allocution In consistoriali of 1 Nov. 1850 (ibid., pp. 509³, 851). The Church therefore rightly insists on it, at least as a matter of principle, in almost all concordats, and in the past even went so far as to establish a Congregation for the protection of ecclesiastical immunities (v. SACRE).
### I. REAL ECCLESIASTICAL IMMUNITY
#### 1. Concept
Real ecclesiastical immunity is that which, within certain limits, frees ecclesiastical property from certain taxes and imposts that generally burden private and public property.
This exemption is of divine right, because the Church, as a perfect society, is absolutely independent of every civil authority.
#### 2. History
a) Roman Law. — A constitution of Constantine and Constantius (Codex Theodosianus, XI, 1, 49) declared church property immune from the land tax; but later this immunity was abolished by Constantius (Cod. Theod., XVI, 2, 15; cf. St Ambrose: PL 16, 1017: “agri Ecclesiae solvunt tributum”), and individual churches were exempt, as for example those of Thessalonica, Constantinople, and Alexandria, by virtue of privileges (C. I., I, 2, 8; X, 16, 12; Nov., XLIII, 1; LIX, praef.; Cod. Theod., XI, 24, 6).
Churches appear, however, to have been immune from the so-called sordida munera by virtue of constitutions 15 and 18 in Cod. Theod., XI, 16, while they were subject to extraordinary imposts in case of necessity (munera extraordinaria, Cod. Theod., XVI, 2, 40 = C. I., I, 2, 5), despite some imperial declarations to the contrary (sometimes munera described elsewhere as sordida are classified as extraordinaria); and to other burdens, such as the repair of bridges and the maintenance of roads (C. I., I, 2, 7) and the provision of transport for the emperor’s service (C. I., I, 2, 11). They were, however, immune from a special tax (lucrativis descriptio) levied on the acquisition of real estate belonging to the curiales (Nov. XXII of Theodosius = C. I., X, 36; though such property remained subject to the taxes that would have been due from the curiales: cf. Nov. CXXXII of Justinian).
The exemption of clerics from taxes on real estate also developed unevenly. While a constitution of Constantius and Constans (Cod. Theod., XVI, 2, 10) exempted them from the land tax, and this provision was confirmed by Constantius and Julian Caesar (Cod. Theod., XVI, 2, 14 = C. I., I, 3, 2), in a constitution in Cod. Theod., XVI, 2, 15 clerics are declared exempt only if they are not provincials.
b) Medieval Law. — During the Middle Ages the fiscal exemption of the Church underwent various vicissitudes. At the end of the 6th century, the letters of St Gregory the Great show that the property of the Roman Church in Sardinia was subject to the land tax. As for ecclesiastical persons, they were to be exempt from personal services, except in case of necessity: the Pope himself ordered that no one should be excused from the duty of guarding the walls. In the Frankish and Lombard kingdoms, the property of churches was not free from the burdens deriving from the Roman fiscal system; only Louis I, with the Capitulare ecclesiasticum of the years 818–19, laid down (cap. 10) that each church should have one mansus (i.e., an area of land that could be cultivated by a colonist family) free from every burden; other property would be subject to taxes. Here, however, two facts intervened that considerably altered the situation: first, there were donations of real estate made by sovereigns to bishoprics and abbeys—property belonging to the imperial patrimony that retained its fiscal privileges even when transferred to the Church; second, an ever-increasing number of ecclesiastical bodies were endowed with immunitary privileges, among which was exemption from taxes.
Thus the principle was formed that the property of the Church should not be subject to any tax. The Decretals affirmed this, while allowing that bishops and religious orders might contribute voluntarily to the needs of the State, but forbade princes, under pain of grave censures, from burdening the Church without the consent of the Supreme Pontiff. These prescriptions were later embodied in the celebrated bull In coena Domini of Pope Urban V (1362–70), repeatedly renewed, and in that Pastoralis Romanorum Pontificum vigilantia of Urban VIII (1627). The Third and Fourth Lateran Councils dealt with this matter in particular to curb the arrogance of the communes, which between the end of the 12th and the beginning of the 13th centuries imposed taxes, personal services, and other burdens on ecclesiastical property within city territory. It is to be noted that even Emperor Frederick II upheld the ecclesiastical privilege against the communes with a constitution of the year 1220.
Two categories of tax exemptions had thus come into being: one of a real nature, concerning Church property that was exempt from taxation, and one of a personal nature, concerning ministers of religion who were exempt from certain taxes, such as, for example, the *testatico*. This led to disputes between the Church and various States. Some of them, such as the Republic of Venice, maintained from the 13th century onward the provision that even the property of ecclesiastical institutions was subject to public taxes. Certain Italian lords, such as the Visconti of Milan, had violent clashes, particularly Matteo, with the popes over this issue. Later, Giangaleazzo Visconti turned to Pope Urban VI to secure the clergy’s contribution to the expenses for the marriage of his daughter Valentina, but more often the Visconti acted on their own authority.
The exemption of Church property was the subject of negotiations and agreements between the various States and the Supreme Pontiff during the period of absolute governments. The need to strengthen the finances of the princes had become urgent both because of the increase in military expenditures and the expansion of public services. In these agreements, a distinction was made between the older property of the Churches and more recent acquisitions: thus, in the agreement between King Charles Emmanuel III of Savoy and Pope Benedict XIV, ecclesiastical property prior to 1628 remained exempt; subsequent acquisitions were subject to taxation. A similar agreement was reached between the same Pontiff and Empress Maria Theresa. In other cases, such as in the Kingdom of the Two Sicilies, the tax burden was reduced by half for older properties, while more recent ones were placed on the same footing as those of laymen.
In France, there was also a tendency to subject ecclesiastical property to public burdens. However, this occurred through different means. At the assembly held in Poissy in 1561, the clergy assumed payment of the interest on debts that Francis I had contracted with the communes; this arrangement was later supplemented by requests that the King made to the clergy for public contributions, which were called “free gifts.” These were variable according to circumstances. In other transalpine countries, the power of princes and feudal lords forced the Church to greater sacrifices. Thus, it is known that Duke Rudolph IV of Austria, in 1363, to meet the expenses of his continual wars, levied 70,000 Viennese pounds from the clergy—a sum enormous for the time. As for the Empire, it did not have a stable financial system, and levies from the clergy were made following negotiations with the great dignitaries who formed part of the German Reichstag. Emperor Sigismund, at the end of the War of the Roses, however, obtained from the assembly convened in 1427 the establishment of a general tax called the *gemeiner Pfennig*, which also affected ecclesiastical property. Thus, gradually and in different ways according to the various countries, the principle was formed that even these properties should be subject to taxation: a principle that, affirmed by the needs of the princes’ finances, later found a new basis in the ideas of fiscal equality that prevailed toward the end of the 18th century. In Italian legislation, exemption still remains from the tax on buildings and from the land tax on structures intended for worship, on premises used for the custody of sacred furnishings, and on cemeteries and their dependencies.
c) Current Law. — The *Codex Iuris Canonici* does not expressly mention real ecclesiastical immunity. The prohibition against using for profane or contrary purposes objects that have been consecrated or blessed, even if they form part of the patrimony of private individuals, or against employing them for uses to which they are not destined or for which they were not made, may be considered as real ecclesiastical immunity (cc. 1150, 1537).
Real ecclesiastical immunity therefore has little importance from a strictly canonical point of view, but it has not lost all practical importance, since traces of it are found in concordats and in the legislation of various nations.
II. LOCAL ECCLESIASTICAL IMMUNITY
By dedication, churches become houses of God, most holy and inviolable, so that everything within them must be inspired by religion and holiness. From this arises the privilege of local ecclesiastical immunity, which belongs to churches and other sacred places.Local ecclesiastical immunity is therefore the right that belongs to churches and other places of religion, by virtue of which, out of reverence for sacred places, certain profane or secular acts cannot be performed within them; and malefactors who take refuge in them are protected in their lives and limbs, so that they cannot be forcibly removed from them.
Such immunity thus comprises the right to special honor and reverence due to sacred places and the right of asylum.
3. Right to Veneration
The utmost veneration is due to churches. The *Codex Iuris Canonici* recommends in this regard: “Let all those to whom it pertains see to it that in churches there is that cleanliness which befits the house of God: markets and fairs, even if held for a pious purpose, and in general everything that is not consonant with the holiness of the place, must be kept away from them” (can. 1178).Therefore, not only any illicit act but also merely profane or secular acts must be avoided, such as those listed in the canon, for example, the judgments of lay courts, whether civil or criminal, secular assemblies or meetings in which purely profane and political matters are discussed, games and theatrical performances, even if honest, motion pictures, banquets, games, lascivious songs, the use of gramophones in liturgical functions, profane speeches, promenades, noise, shouting, the display of statues or paintings contrary to the holiness of the place, and finally all those things that disturb the liturgical service or offend the Divine Majesty. Nothing should occur in the place where forgiveness of sins is sought that might give occasion to sin.
It is equally forbidden to use sacred vessels and church utensils for profane purposes (can. 1150). The use of churches for non-Catholic worship ceremonies may at most be tolerated temporarily for reasons of grave necessity.
In common law, literary disputes, concerts, the conferral of academic degrees, and Catholic congresses are not prohibited; however, it is always the duty of the bishop to repress abuses and to require parish priests, in cases of doubt, to refer to him.
It is customary to allow the sale of candles, rosaries, medals, etc., in churches, provided that all this is done without detriment to worship, near the door, and only when it is difficult to find a suitable place elsewhere.
As for flags and garments, even if not blessed, the Sacred Congregation of Rites, on March 26, 1924, published an instruction of December 15, 1922, in which, departing from former strictness, it established that flags or banners could be admitted into churches, provided that they did not belong to societies openly opposed to the Catholic religion or whose statutes had been condemned, and on condition that the banners did not bear reproved emblems.
When, however, flags or banners are presented with a sense of deference to religion, they may be granted a blessing, using the formula fixed in the Roman Ritual. Thus the question of national flags has been resolved. Party flags, however, cannot be blessed (Decree of the Sacred Congregation of the Holy Office, March 20, 1947, in *AAS*, 39 [1947], p. 230).
The local, i.e., local, ecclesiastical immunity which forbids profane acts unbecoming to the sanctity of the place is of divine right, and in general is still protected by civil law. The spiritual authority, for its part, certainly has the right to erect sacred oratories or churches for divine worship, and once built, the right to safeguard their sanctity by declaring what this sanctity requires and forbidding what would violate the respect due to sacred things.
4. Right of asylum
From the respect owed to churches there also arises the right of asylum (v. ASILO, DIRITTO di).Traces of local and real ecclesiastical immunity are found in the Concordats with Colombia (art. 6, 31 Dec. 1887), with Latvia (art. 14-16, 30 May 1922), with Poland (art. 7, 15, 10 Feb. 1925), and with Lithuania (art. 6, 16, 27 Sept. 1927). In Italy, under the Concordat of 11 Feb. 1929, buildings open to worship are normally exempt from requisition or occupation; if such measures are necessary, they must be carried out in agreement with the Ordinary, or at least the Ordinary must be informed in cases of absolute urgency. Agreement is absolutely required for the demolition of buildings open to worship. Public force may not enter them without prior notice to the ecclesiastical authority (art. 9-10).
III. PERSONAL ECCLESIASTICAL IMMUNITY
Personal ecclesiastical immunity exempts clerics and ecclesiastical persons from the jurisdiction and burdens imposed by a lay authority: e.g., exemptions from public offices incompatible with the sacred character and decorum of their ministry, exemptions from personal burdens, from personal taxes, from certain civil laws, and from the civil forum.For this kind of ecclesiastical immunity, see the more extensive privileges of clerics.