ECCLESIASTICAL IMMUNITY. - Ecclesiastical immunity is a privilege of a universal character, which exempts ecclesiastical persons and things and sacred places from certain burdens and furthermore from acts that are unbecoming to the venerability of 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 directly affect persons, ecclesiastical patrimony, and sacred places.
When it is a matter of strictly spiritual or sacred things, or of native rights that are connected in a necessary and exclusive manner with the nature of the Church and over which, consequently, civil society has no jurisdiction, there can be no question of immunity; the independence of the spiritual sovereignty of the Church must never be considered as an immunity; it is a right and moreover an essential one. Immunity does not exist for mixed matters. Generically, immunity is a privilege by virtue of which a thing or a person is dispensed from certain obligations validly and lawfully imposed by the State on all its dependents.
In particular, ecclesiastical immunity is not, as some canonists think (Reiffenstuel, Santi-Leitner, etc.), a right, but a privilege of a universal character, by virtue of which ecclesiastical persons, sacred places or things enjoy exemption from certain common burdens.
The regalists of other times, the liberals, and all those who do not recognize in the Church a juridical character or, worse still, who refuse to recognize in her the nature of a perfect society, consider ecclesiastical immunities to be founded exclusively on civil laws, whose existence serves only to testify to the benevolence of the State and which can therefore be abrogated, without the Church being able in any way to cry out against injustice. It must be acknowledged that certain ecclesiastical immunities, proper to other times, were the fruit of a privileged condition of the Church in another juridical order of society; but it is false to say that the whole body of ecclesiastical immunities depends solely on concessions of the civil power. In other words, the concrete formulation of ecclesiastical immunities depends on positive law, and therefore their development has been varied over the centuries, now expanding, now contracting, according to the times and the social climate thereof. But the foundation of ecclesiastical immunities is found in divine law, that is, in the superiority of ecclesiastics over laypersons, a superiority inherent in their sacred character. It is this same sacred character that in some way extends also to inanimate things, such as sacred places and patrimony, which demands a special treatment of ecclesiastical places and things in the juridical and social order. Justly, against those who proclaimed the necessity of abolishing every ecclesiastical immunity, Pius IX pronounced his condemnation in the Syllabus (Fontes CIC, II, Rome 1928, propositions 30, 43, pp. 1003, 1005) and in the allocution In consistoriali of 1 Nov. 1850 (ibid., pp. 509 § 3, 851). Justly, therefore, the Church insists upon it, at least as an affirmation of principle, in almost all concordats, and in the past she even went so far as to found a Congregation for the protection of ecclesiastical immunities (v. CONGREGAZIONI ROMANE, SACRE).
I. ROYAL ECCLESIASTICAL IMMUNITY
1. Concept
It is ecclesiastical immunity that frees, within certain limits, ecclesiastical property from certain taxes and certain imposts, with which private and public patrimonies are generally burdened.
This exemption is of divine right, because the Church, a perfect society, is absolutely independent of every civil authority.
2. History
a) Roman law. - A constitution of Constantine and Constantius (Theodosian Code, XI, 1, 49) declared the res of the Church immune from the land tax; but later this immunity was abolished by Constantius (Theod. Code, 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.; Theod. Code, XI, 24, 6).
The Churches, on the other hand, appear immune from the so-called munera sordida, by virtue of constitutions 15 and 18 in Theod. Code, XI, 16, while they were subject to extraordinary taxes in case of necessity (munera extraordinaria, Theod. Code, XVI, 2, 40 = C. I., I, 2, 5), despite certain imperial declarations to the contrary (sometimes, moreover, munera indicated elsewhere as sordida are classified as extraordinaria); and to other services, such as the repair of bridges and the maintenance of roads (C. I., I, 2, 7) and the furnishing of means of transport for the emperor's service (C. I., I, 2, 11). They are, however, immune from a special tax (lucrativis descriptio) that struck the acquisition of immovable property belonging to the curiales (Nov. XXII of Theodosius = C. I., X, 36; property which, however, remained subject to the taxes that would have been owed by the curiales: cf. Nov. CXXXI of Justinian).
The exemption of clerics from the tributes burdening immovable property also had an uneven development. In fact, while a constitution of Constantius and Constans (Theod. Code, XVI, 2, 10) exempted them from the land tax and this provision was confirmed by Constantius and Julian Caesar (Theod. Code, XVI, 2, 14 = C. I., I, 3, 2), in a constitution in Theod. Code, XVI, 2, 15 only non-provincial clerics are declared exempt.
Bibliography2 works
Rodolfo Danieli
b) Intermediate law. - During the Middle Ages the fiscal exemption of the Church had various vicissitudes. Toward the end of the 6th century it appears from the letters of St. Gregory the Great that the properties of the Roman Church in Sardinia were subject to the land tribute. As for ecclesiastical persons, they must have been exempt from personal services, except however in the case of necessity: the same Pontiff in fact ordered that no one should withdraw from the obligation of guarding the walls. In the Frankish Kingdom, as also in the Lombard one, the properties of the Churches were not free from the burdens deriving from the Roman tax system; only Louis I, with the Capitulare ecclesiasticum of the years 818-19, established (cap. 10) that each church should have a mansus (that is, an extent of land that could be cultivated by a tenant family) free from every burden; the other properties would have to be subject to tributes. Here, however, two facts intervened that altered the situation not a little: in the first place there were the donations of immovable property made by sovereigns to bishoprics and abbeys: property belonging to the imperial patrimony that retained the fiscal privileges even if transferred to the Church; in the second place an ever greater number of ecclesiastical bodies was endowed with immunitary privileges, among which there was also exemption from tributes.
Thus the principle was formed that the properties of the Church should not be subjected to any tribute. The Decretals affirmed it, while admitting that bishops and religious Orders should contribute with spontaneous offerings to the needs of the State, but forbade princes, under penalty of grave censures, to burden the Church without the consent of the supreme pontiff. Such prescriptions were then fixed in the celebrated bull In coena Domini of Pope Urban V (1562-70), several times 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 put a curb on the arrogance of the Communes, which between the end of the 12th century and the beginning of the 13th imposed tributes, services of labor and other burdens on the ecclesiastics of the city territory. It is to be noted that even the emperor Frederick II upheld the ecclesiastical privilege against the Communes with a constitution of his of the year 1220.
Thus two categories of fiscal exemptions had been formed, one of a real character that concerned the properties of the Church that exempted themselves from taxes, the other personal that concerned the ministers of religion who exempted themselves from certain taxes, as, for example, the poll tax. This led to dissi[di] between the Church and the various States. Some of them, like the Republic of Venice, held firm since the 13th century to the provision by which even the properties of ecclesiastical bodies were subject to public taxes. Certain Italian lords, like the Visconti of Milan, had violent clashes, in particular Matteo, with the popes for this reason. Later Giangaleazzo Visconti appealed to the pontiff Urban VI, in order to be able to make the clergy contribute to the expenses for the marriage of his daughter Valentina, but more often the Visconti acted on their own arbitrary authority.
The exemption of the properties of the Churches was the object of negotiations and agreements between the various States and the supreme pontiff in the period of absolute governments. The need to strengthen the finances of princes had become urgent both because of the increase in military expenses and because of the expansion of public services. A distinction was made, in such agreements, between the more ancient properties of the Churches and more recent properties: thus, in that between the king of Sardinia Charles Emmanuel III of Savoy and the supreme pontiff Benedict XIV, ecclesiastical properties prior to 1628 remained exempt; subsequent ones were subject to tributes; similar was the agreement between the same Pontiff and the empress Maria Theresa. In other cases, as, for example, in the Kingdom of the Two Sicilies, the weight of the taxes was reduced by half for ancient properties, while the more recent ones were placed under the same conditions as laymen.
In France too there were tendencies to subject ecclesiastical property to public burdens. This, however, came about in different ways. At the assembly held at Poissy in 1561 the clergy assumed payment of the interest on the debts that King Francis I had contracted with the Communes; this arrangement was later supplemented by requests that the King made to the clergy for contributions for public necessities, which were called "free gifts." These varied according to circumstances. In other transalpine countries the power of princes and feudal lords forced the Church to make heavier sacrifices. Thus it is known of Duke Rudolf IV of Habsburg of Austria that in 1563, to meet the expenses of his continual wars, he collected from the clergy 70,000 pounds of Viennese denarii, a sum exceedingly burdensome for those times. As for the Empire, it had no stable system of finances, and collections from the clergy were made following negotiations with the great dignitaries who formed part of the German Reichstag. Emperor Sigismund, however, at the end of the Hussite war, obtained from the Reichstag convoked in 1427 the institution of a general tax called gemeiner Pfennig, which also struck ecclesiastical property. Thus there gradually took shape, and in different ways according to the various countries, the principle that this property too should be subject to taxes: a principle which, having established itself through the financial necessities of princes, later found a new basis in the ideas of tax equality that prevailed toward the end of the 18th century. In Italian legislation there still remains exemption from the tax on buildings and from the land tax for buildings destined for worship, for premises destined for the custody of sacred furnishings, and for cemeteries and their appurtenances.
Bibliography5 works
Pier Silverio Leicht
c) Current law. - The CIC does not speak in express terms of real ecclesiastical immunity. Real ecclesiastical immunity may be considered to be the prohibition against using for profane purposes or purposes contrary to their destination objects that are consecrated or blessed, even if they form part of the patrimonies of private persons; or against lending them for uses for which they are not destined or for which they are not made (cann. 1150, 1537).
Real ecclesiastical immunity is therefore of slight importance from the strictly canonistic point of view, but it has not lost all practical importance, because traces of it are found in concordats and in the legislation of various nations.
II. LOCAL ECCLESIASTICAL IMMUNITY
Through dedication churches become houses of God, sacrosanct and inviolable, so that in them everything must be inspired by religion and holiness. From this originates the privilege of ecclesiastical immunity, which sacred places enjoy.
Local ecclesiastical immunity is therefore the right belonging to churches and other places of religion, by virtue of which, out of the reverence owed to sacred places, certain profane or secular acts cannot be performed in them; and wrongdoers who take refuge in them are protected in life and limb, in such a way that they cannot be dragged out of them by force.
Such ecclesiastical immunity thus comprises the right to a special honor and reverence owed to sacred places and the right of asylum.
1. Right to veneration
The greatest veneration is owed to churches. The CIC recommends in this regard: "Let all those to whom it pertains take care that in churches there be that cleanliness which befits the house of God: from them are to be kept away markets and fairs, even if held for a pious purpose, and in general everything that is not consonant with the holiness of the place" (can. 1178).
Therefore not only any unlawful act must be avoided, but also merely profane or secular acts, such as those listed in the canon, e.g., the judgments of lay tribunals, whether civil or criminal, secular assemblies or gatherings in which purely profane and political matters are treated, games and theatrical performances, projections and cinemas, even if decent, banquets, games, lascivious songs, the use of the gramophone during liturgical functions, profane speeches, strolls, 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. Let nothing take place, in the place where forgiveness of sins is sought, that gives occasion to sin.
It is likewise forbidden to use the sacred vessels and the utensils of the church for profane uses (can. 1150). To use churches for celebrating ceremonies of non-Catholic worship can at most be tolerated temporarily for reasons of grave necessity.
In common law, literary disputations, concerts, the conferring of academic degrees, and Catholic congresses are not prohibited; nevertheless it is always the bishop's duty to repress abuses and to require of parish priests that in doubtful cases recourse be had to him.
It is customary to permit candles, rosaries, medals, etc., to be sold in churches, provided that all this is done without harm to worship, near the door, and only when there is difficulty in finding a suitable place elsewhere.
As regards flags and banners, even unblessed ones, the Sacred Congregation of Rites, on 26 March 1924, published an instruction of 15 Dec. 1922, in which, departing from the former rigidity, it established that flags or banners could be admitted into churches provided they did not belong to societies openly opposed to the Catholic religion or whose statutes had been condemned, and on condition that the banners bore no reproved emblems.
When moreover it is asked with a sense of deference to religion, the aforesaid banners or flags may be granted the blessing, using the formula fixed in the Roman Ritual. Thus the question of national flags has been resolved. The flags of parties, on the other hand, cannot be blessed (Decree of the Sacred Congregation of the Holy Office, 20 March 1947, in AAS, 39 [1947], p. 230).
Local ecclesiastical immunity, which forbids profane acts unbecoming to the holiness 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 shrines or churches for divine worship, and once built, the right to protect their holiness, declaring what this holiness requires and forbidding that there be done what would violate the respect owed to sacred things.
2. Right of asylum
From the respect owed to churches there likewise springs 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 (arts. 14-16, 30 May 1922), with Poland (arts. 7, 15, 10 Feb. 1925), with Lithuania (arts. 6, 16, 27 Sept. 1927). In Italy, on the basis of the Concordat of 11 Feb. 1929, as a rule buildings open for worship are exempt from requisitions or occupations, which, if they must be made out of necessity, must take place in agreement with the Ordinary; at least informing him in case of absolute urgency. Agreement is absolutely required for the demolition of buildings open for worship. Into them the public force cannot enter without having given prior notice to the ecclesiastical authority (arts. 9-10).
III. PERSONAL ECCLESIASTICAL IMMUNITY
Personal ecclesiastical immunity exempts clerics and ecclesiastical persons from the jurisdiction and burdens imposed by a lay authority: for example, exemptions from public offices, which are incompatible with the sacred character and the dignity of one's ministry, exemptions from personal burdens, from personal taxes, from certain civil laws, from the civil forum.
For this kind of ecclesiastical immunity, see more fully PRIVILEGI DEI CHIERICI.