ECCLESIASTICAL IMMUNITY. — Ecclesiastical immunity is a privilege of universal character that exempts ecclesiastical persons and things, and sacred places, from certain burdens and, moreover, from acts that are incompatible with the venerability of places and the sanctity of persons.
As the definition itself indicates, ecclesiastical immunity is of three kinds: personal, real, and local, according as the exemptions directly concern persons, ecclesiastical property, or sacred places.
When strictly spiritual or sacred matters are concerned, or innate rights that are necessarily and exclusively connected with the nature of the Church and over which, consequently, civil society has no jurisdiction whatsoever, 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 exist with regard to mixed matters. In general, 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 upon all its subjects.
In particular, ecclesiastical immunity is not, as some canonists (Reiffenstuel, Santi-Leitner, etc.) think, a right, but a privilege of universal character, by virtue of which ecclesiastical persons, places, or sacred things enjoy exemption from certain common burdens.
The regalists of former times, the liberals, and all those who do not acknowledge a juridical character in the Church or, worse still, refuse to recognize her nature as a perfect society, consider ecclesiastical immunities to be founded exclusively on civil laws, whose existence merely testifies to the benevolence of the State and which may therefore be abrogated without the Church’s 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 the Church’s privileged condition within another juridical order of society; but it is false to say that ecclesiastical immunities as a whole depend solely upon concessions by the civil authority. In other words, the concrete formulation of ecclesiastical immunities depends upon positive law, and therefore their development has varied over the centuries, now expanding and now contracting according to the times and their social climate. But the foundation of ecclesiastical immunities is found in divine law, that is, in the superiority of ecclesiastics over the laity, a superiority inherent in their sacred character. It is this same sacred character that, in some manner, extends also to inanimate things, such as sacred places and property, and demands special treatment for ecclesiastical places and things within the juridical and social order. Rightly, therefore, against those who proclaimed the necessity of abolishing every ecclesiastical immunity, Pius IX pronounced his condemnation in the Syllabus (Fontes CIC, II, Roma 1928, propp. 30, 43, pp. 1003, 1005) and in the allocution In concistoriali of 1 Nov. 1850 (ibid., pp. 509 § 3, 851). Rightly, therefore, the Church insists upon it, at least as a statement 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
This is the ecclesiastical immunity which, within certain limits, frees ecclesiastical property from certain taxes and imposts generally imposed on private and public property.This exemption is of divine law, because the Church, a perfect society, is absolutely independent of every civil authority.
2. History
a) Roman law. — A constitution of Constantine and Constantius (Cod. Theodosianus, XI, 1, 49) declared the res of the Church exempt 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 exempted, such as, for example, those of Thessalonica, Constantinople, and Alexandria, were so by virtue of privileges (C. I., I, 2, 8; X, 16, 12; Nov., XLIII, 1; LIX, praef.; Cod. Theod., XI, 24, 6).The Churches, on the other hand, appear to have been exempt from the so-called munera sordida, by virtue of constitutions 15 and 18 in Cod. Theod., XI, 16, whereas they were subject to extraordinary taxes in cases of necessity (munera extraordinaria, Cod. Theod., XVI, 2, 40 = C. I., I, 2, 5), notwithstanding certain imperial declarations to the contrary (sometimes munera designated 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 provision of means of transport for the emperor’s service (C. I., I, 2, 11). They were, however, exempt from a special tax (lucrativis descriptio) imposed on the acquisition of immovable property belonging to the curiales (Theodosius’s Nov. XXII = C. I., X, 36; although such property remained subject to the taxes that would have been owed by the curiales: cf. Justinian’s Nov. CXXXI).
The exemption of clerics from taxes imposed on immovable property likewise developed unevenly. Thus, 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 only clerics who were not provincials are declared exempt.
b) Intermediate law. — During the Middle Ages the Church’s tax exemption underwent various developments. Toward the end of the sixth century, it appears from the letters of St Gregory the Great that the property of the Roman Church in Sardinia was subject to the land tax. As for ecclesiastical persons, they must have been exempt from personal services, except in cases of necessity: the same Pontiff, in fact, ordered that no one should evade the duty of keeping watch over the walls. In the Frankish Kingdom, as also in the Lombard Kingdom, the property of the Churches was not free from the burdens arising from the Roman tax system; only Louis I, through the Capinulare ecclesiasticum of 818–19, established (ch. 10) that each church should have one mansus (that is, an extent of land that could be cultivated by a peasant family) free from every burden; the other property was to be subject to taxes. Two developments, however, intervened here and altered the situation considerably: first, there were donations of immovable property 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 institutions were endowed with immunitary privileges, among which was exemption from taxes.
Thus the principle was formed that Church property should not be subject to any tax. The Decretals affirmed this, while admitting that bishops and religious Orders should contribute, through voluntary offerings, to the needs of the State; but they forbade princes, under penalty of grave censures, to burden the Church without the consent of the supreme pontiff. These prescriptions were subsequently established in the celebrated bull In coeno Domini of Pope Urban V (1562–70), renewed several times, and in Pastoralis Romanorum Pontificum vigilantia of Urban VIII (1627). The Third and Fourth Lateran Councils dealt with this matter particularly in order to restrain the presumption of the Communes, which between the end of the twelfth century and the beginning of the thirteenth imposed taxes, labor services, and other burdens on ecclesiastics within the territory of the city. It should be noted that the Emperor Frederick II also defended the ecclesiastical privilege against the Communes in a constitution of 1220.
Two categories of tax exemptions had thus emerged: one of a real character, concerning Church property, which was exempted from taxes; the other personal, concerning ministers of religion, who were exempted from certain taxes, such as, for example, the poll tax. This led to disputes between the Church and the various States. Some of them, such as the Republic of Venice, maintained from the thirteenth century onward the provision according to which the property of ecclesiastical institutions was also subject to public taxes. Certain Italian lords, such as the Visconti of Milan, had violent conflicts on this account with the popes, especially Matteo. Later, Giangaleazzo Visconti appealed to Pope Urban VI in order to have the clergy contribute to the expenses of his daughter Valentina’s marriage, but more often the Visconti acted on their own authority.
The exemption of Church property became 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 princes had become urgent, both because of the increase in military expenditure and because of the expansion of public services. In these agreements, a distinction was made between the older and more recent property of the Churches: thus, in the agreement between the King of Sardinia, Charles Emmanuel III of Savoy, and the supreme pontiff Benedict XIV, ecclesiastical property dating from before 1628 remained exempt; later property was subjected to taxes. A similar was the agreement between the same Pontiff and Empress Maria Theresa. In other cases, such as, for example, in the Kingdom of the Two Sicilies, the tax burden was reduced by half for older property, while more recent property was placed on the same footing as that of laypeople.
In France too, there were tendencies to subject ecclesiastical property to public burdens. This occurred, however, by different means. At the assembly held at Poissy in 1561, the clergy undertook to pay the interest on the debts that King Francesco I had contracted with the communes; this arrangement was subsequently supplemented by demands made by the King upon the clergy, for public necessities, for contributions known as «doni gratuiti». These varied according to circumstances. In other transalpine countries, the power of princes and feudal lords compelled the Church to make more serious sacrifices. Thus, it is known that Duke Rodolfo IV d'Absburgo of Austria, in 1563, to meet the expenses of his continual wars, levied from the clergy 70,000 pounds in Viennese currency, an extremely burdensome sum for those times. As for the Empire, it had no stable system of finance, and levies from the clergy were made following negotiations with the great dignitaries who were members of the German Reichstag. At the end of the Hussite War, however, Emperor Sigismondo obtained from the Reichstag convened in 1427 the establishment of a general tax called gemeiner Pfennig, which also affected ecclesiastical property. Thus, gradually and in different ways according to the various countries, the principle arose that such property too should be subject to taxation: a principle which, having been established by the financial needs of the princes, subsequently found a new foundation in the ideas of tax equality that prevailed toward the end of the eighteenth century. In Italian legislation, exemption from the tax on buildings and from the land tax still remains for buildings intended for worship, premises intended for the safekeeping of sacred furnishings, and cemeteries and their appurtenances.
c) Current law. — The CIC does not expressly speak of real ecclesiastical immunity. The prohibition against using consecrated or blessed objects for profane purposes or purposes contrary to their intended use may be regarded as real ecclesiastical immunity,
even when they form part of the property of private persons; or against lending them for uses for which they are not intended or for which they were not made (canons 1150, 1537).
Real ecclesiastical immunity is therefore of 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
With their dedication, churches become houses of God, sacred and inviolable, so that everything in them must be inspired by religion and holiness. From this derives the privilege of ecclesiastical immunity, enjoyed by sacred places.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 may not be carried out therein; and wrongdoers who take refuge in them are protected in life and limb, in such a way that they cannot be forcibly removed from them.
Such ecclesiastical immunity thus includes the right to the special honor and reverence owed to sacred places, as well as the right of asylum.
3. Right to veneration
The greatest veneration is owed to churches. In this regard the CIC recommends: “let all those responsible take care that there be in churches the cleanliness appropriate to the house of God; markets and fairs, even when held for a pious purpose, must be kept away from them, and in general everything that is not consonant with the holiness of the place” (can. 1178).One must therefore avoid not only any illicit act, but also merely profane or secular acts, such as those listed in the canon, for example, the proceedings of civil tribunals, whether civil or criminal, secular meetings or gatherings in which purely profane and political matters are discussed, games and theatrical performances, projections and films, even if decent, banquets, games, obscene songs, the use of the gramophone during liturgical services, 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. In the place where forgiveness for sins is sought, nothing should occur that might give occasion to sin.
It is likewise forbidden to use sacred vessels and church utensils for profane purposes (can. 1150). The use of churches for celebrating ceremonies of non-Catholic worship can, at most, be temporarily tolerated for reasons of grave necessity.
Under the common law, literary debates, concerts, the conferral of academic degrees, and Catholic congresses are not prohibited; nevertheless, it is always the bishop’s duty to repress abuses and to require parish priests, in doubtful cases, to have recourse to him.
It is customary to permit the sale of candles, rosaries, medals, etc., in churches, provided that this is done without detriment to worship, near the door, and only when it is difficult to find a suitable place elsewhere.
As regards flags and banners, even if not blessed, the S. Congregation of Rites, on 26 March 1924, published an instruction of 15 Dec. 1922, in which, departing from its former rigidity, 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 bore no proscribed emblems.
When, in a spirit of homage to religion, a blessing is requested for the aforementioned banners or flags, it may be granted using the formula established in the Roman Ritual. The question of national flags was thus resolved. The flags of political parties, on the other hand, may not be blessed (Decree of the S. Congregation of the S. Office, 20 March 1947, in AAS, 39 [1947], p. 230).
Local ecclesiastical immunity, which prohibits profane acts unbecoming to the holiness of the place, is of divine law and is generally still protected by civil law. For its part, spiritual authority certainly has the right to erect sacred shrines or churches for divine worship and, once they have been built, the right to safeguard their holiness, declaring what this holiness requires and prohibiting anything that would violate the respect owed to sacred things.
4. Right of asylum
The right of asylum also arises from the respect owed to churches (v. ASILO, DIRITTO di).Traces of local and real ecclesiastical immunity are found in the Concordats with Columbia (art. 6, 31 Dec. 1887), with Latvia (arts. 14–16, 30 May 1922), with Poland (arts. 7, 15, 10 Feb. 1925), and with Lithuania (arts. 6, 16, 27 Sept. 1927). In Italy, under the Concordat of 11 Feb. 1929, buildings open for worship are as a rule exempt from requisition or occupation; when such measures must be taken out of necessity, they must be carried out in agreement with the Ordinary, or at least with notification to him in cases of absolute urgency. Agreement is strictly required for the demolition of buildings open for worship. Public forces may not enter them 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: e.g., exemptions from public offices incompatible with the sacred character and dignity of their ministry; exemptions from personal obligations, personal taxes, certain civil laws, and the civil forum.For this kind of ecclesiastical immunity, V. CLERICS.