PRIVILEGES OF CLERICS. – These are special immunities that form part of the broader category of ecclesiastical immunity (v.) and collectively represent what is known as personal immunity. These privileges, which summarize the guarantees granted to the clerical state in consideration of its sacred character and the freedom necessary for the exercise of its functions, number four and are historically known by the names: *canonis*, *fori*, *immunitatis*, and *competentiae*. In current canon law, they are regulated as follows.
I. *PRIVILEGIUM CANONIS* – This is a special protection against violence. Its name derives from canon 15 of the Eleventh Lateran Council of 1139 (c. 29, q. 4, dist. XVII).
The *Codex Iuris Canonici* (CIC) declares that those who commit real injury (i.e., by physical means) against a cleric commit the crime of sacrilege (v.) (can. 119). This is therefore a special penal protection granted to clerics for the defense of their person, extended (in addition to all clerics, even those merely tonsured) to religious of both sexes, even those not in solemn vows (can. 614), and to members of pious associations living in common under an approved rule, though without public vows (can. 680). As seen, the privilege concerns only *realis iniuria*, that is, physical acts that directly affect the person, harming bodily integrity, honor, or dignity (e.g., blows to the person, tearing of garments, etc.), or personal freedom. The gravity of the sanction imposed for violating this privilege is graduated according to the dignity and position of the offended party. Whoever uses violence against the Pope incurs a special excommunication reserved to the Apostolic See: he is *ipso facto* to be shunned, infamous by law, and, if a cleric, must be degraded; if against a cardinal or papal legate, he incurs an excommunication specially reserved to the Apostolic See, is infamous by law, and will be deprived of benefices, offices, dignities, pensions, or any other position, but not degraded; if against a patriarch, archbishop, or bishop (even titular), he incurs an excommunication specially reserved to the Apostolic See; if against other clerics or religious, he is subject to an excommunication reserved to his own order, which may add other fitting penalties (can. 2343).
Given the gravity and nature of the sanction, the violation of this privilege naturally presupposes an adequate element of intent. Even regarding the necessity of such an element, old canonists taught that the expression *suadente diabolo* used in the relevant canon precisely signified the evil intention, the moral imputability necessary to constitute the crime (Pateri), and that therefore one would not incur the censure who struck or even killed a cleric in legitimate self-defense, by accident not imputable, or while unaware of his clerical status. Similarly, current law holds that if the injury is inflicted through distraction, or as a result of slight culpable impulse, or in personal defense that does not exceed reasonable limits, neither the qualification nor the sanction applies.
II. *PRIVILEGIUM FORI* – By virtue of canon 120, clerics in all civil (contentious) or criminal cases must be judged (duly convened) by the ecclesiastical judge, *nisi aliter pro locis particularibus legitime provisum fuerit*; that is, unless otherwise provided in a lawful manner (i.e., by concordat, papal territorial law, or—according to dominant doctrine—custom) for particular territories. According to the same canon, moreover, it is necessary to obtain the authorization of ecclesiastical authority—that is, the Holy See or the ordinary, depending on the hierarchical rank or office of the defendant—to bring an action against clerics before secular tribunals. Whoever violates these provisions incurs excommunication or lesser penalties, depending on the rank of the defendant. Ordinaries, however, must not deny laypersons, except for a just and grave cause, the faculty of bringing suit before the tribunal of clerics of lower hierarchical rank, especially when amicable settlement of the dispute has failed (can. 120 § 2). On the other hand, clerics, when sued before a secular judge by someone who has not obtained the authorization of ecclesiastical authority, may, to avoid greater harm, appear before the secular judge, informing their superior from whom the license should have been obtained (can. 120 § 3). This privilege applies when the cleric is summoned before the secular forum as the accused or defendant in the proper sense; not as a witness, or in the capacity of administrator or guardian, nor when sued for joinder or privity of cause (e.g., called in guarantee), or when, having himself brought suit against a layperson, he is in turn reconvened by the opposing party.
The recognition of the *privilegium fori* of clerics, which is connected to the broader issue of the recognition of the ecclesiastical forum (i.e., the jurisdiction of the Church in matters, even civil or criminal, otherwise pertaining to the State), has been among the most contested by modern state legislations, after a long period of almost general observance.
Its origin, at least for civil causes, is traced back to Justinianic legislation (Nov. 1, LXXIX, c. 8; 1, LXXVIII, c. 21; 1, CXXIII, c. 22). The councils of the Frankish and Carolingian periods confirmed the principle, though with some limitations, and later the great medieval popes—Alexander III, Celestine III, Innocent III—extended its application to all civil and criminal causes, excepting only feudal matters (c. 1, 6, 7, X, II, 2). After the Decretals, with the progressive centralization of state institutions, opposition to the privilege gradually intensified, while the Church, for its part, never consented to renounce it in principle. Thus, it reaffirmed it at the Council of Trent (sess. XXIII, De ref., c. 6; sess. XXIV, c. 20), and more recently in Pius IX’s *Syllabus* (prop. 31) and in Pius X’s *motu proprio* *Quantavis diligentia* of 9 Oct. 1911, in which it was proclaimed that not only persons invested with public authority but also private individuals
Clerics were brought before the secular tribunal without the authorization of ecclesiastical authority, they incurred the reserved excommunication of the Holy See. However, this latter later specified that ancient and immemorial customs and concordat agreements that circumscribed or had abolished the privilege could be juridically maintained. As has been seen, this doctrine passed into the Code. There is doubt whether, in countries where the privilege has been lawfully abolished for one of the above reasons (custom or concordat agreements), the prescription of can. 120 § 2 must still be observed, which requires the authorization of ecclesiastical authority to bring clerics before state tribunals. Authoritative opinions are in the affirmative. As for territorial law in Italy—where, as is known, the ecclesiastical forum was abolished by the unilateral act of the State (the Siccardi Law, 9 April 1850, no. 1013, later extended to the annexed provinces), a measure never recognized by the Holy See—the prevailing doctrine now holds that the privilege of the forum in penal matters has been abolished by virtue of the Lateran Concordat, and in particular by the provision of art. 8, which considers the case of an ecclesiastical or religious being referred to the penal magistrate for a crime. From this it is inferred that, having agreed and approved that in the case of a crime a priest or religious may be judged or even condemned by the secular forum, requesting only that in the case of a conviction he not be detained with lay convicts but in a separate place, the Holy See 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 *a fortiori* from this the renunciation of the ecclesiastical forum even for contentious procedures, since in these the reasons for regard to sacerdotal dignity present in penal cases would not apply; 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 must obtain the license of the ecclesiastical authority according to the prescription of can. 120 § 2 CIC (a practice more commonly observed).
III. *PRIVILEGIUM IMMUNITATIS*. — By this privilege, also called the privilege of *exemption*, there was formerly understood a clerical immunity that in principle embraced all burdens and impositions deriving from civil jurisdiction, including both personal burdens incompatible with the clerical state (such as military service [q.v.], the office of judge in secular causes, etc.) and burdens constituted by the obligation to pay taxes, both personal and patrimonial (the latter commonly called real burdens). The privilege, whose origins may be traced to the immunities already granted to pagan priests and later conceded by Christian emperors to the ministers of the Gospel, was intended to exempt clerics from personal burdens not pertaining to their state and to secure exemption of their goods from public taxes. In practice, however, the institution over the centuries did not remain clearly delineated except insofar as it was a true personal immunity of the cleric (also called therefore the *privilegium servitiorum*), while exemption from taxes was often confused or mingled indiscriminately with the real immunity pertaining to ecclesiastical goods. The CIC, reaffirming the various privileges of clerics, so provides in this regard: *Clerici omnes a servitio militari, a numeribus et publicis civilibus officiis a statu clericali alienis immunes sunt* (can. 121). The canon therefore prescribes the exemption of clerics from military service and from public offices and duties alien to the clerical state. This principle is dictated both by the need to guarantee the freedom and dignity of clerics and by that of keeping them apart from any activity contrary or unsuitable to the mild character required for divine service. Hence this privilege corresponds to a parallel duty of clerics to abstain from certain offices and activities (cf. cann. 139, 141, 188, n. 6). The text of can. 121 does not expressly mention exemption from taxes. It has therefore been asked whether this exemption is also to be understood as included in the immunity *a numeribus et publicis civilibus officiis a statu clericali alienis* spoken of in the canon, or not. Among the various opinions on this point, it seems possible to affirm that in can. 121 *munus* is understood in the sense of service, coordinate with, if not equivalent to, the concept of *officium*, and that therefore the exemption from tax burdens is not to be understood as included in the aforesaid norm. This exemption, moreover, although still mentioned in pre-Code discussions, had by then practically become a historical memory, not only because it had largely fallen into desuetude but also because of the express derogation from this exemption contained in numerous concordats concluded by the Holy See prior to the Code. Hence it could well be said that at the time of codification a true *ius concordatarium* had already been established in many states as particular law, acknowledging the prior abolition of the privilege. The CIC has thus merely, albeit tacitly, consecrated what was already the universally effective discipline. Reduced therefore to the exemption from military service and from public offices and duties, the privilege of immunity may in fact be seen in this more circumscribed form as enjoying a more or less broad and explicit recognition in various concordat and state systems. For Italian territorial law, the matter is regulated in arts. 3 and 4 of the Concordat. By virtue of these, in addition to the faculty of postponing military service until the twenty-sixth year of age granted to seminarians and novices, clerics in sacred orders and professed religious are exempt from military service, except in the case of general mobilization. In the event of general mobilization, priests with cure of souls (ordinaries, parish priests and assistants, etc.) are exempt from being called up. Other clerics or religious are preferably assigned to sanitary services and, if priests, retain their ecclesiastical habit, exercising their sacred ministry among the troops under the ecclesiastical jurisdiction of the military ordinary (art. 3). Ecclesiastics and religious are also exempt from jury service (art. 4).
IV. *PRIVILEGIUM* OR *BENEFICIUM COMPETENTIAE*. — This privilege or benefit, already granted in Roman law to certain categories of debtors (among them veterans and soldiers in general) and by which they had the right not to be condemned to pay more than they were able (*in id quod facere possunt*), later extended by the glossators to clerics by analogy between earthly and priestly service, was especially founded 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 right of the cleric, when obliged to satisfy a creditor, not to be deprived of the minimum necessary for decent 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 now lost almost all significance, given the limits imposed by modern legislation on forced execution. An exemption from distraint established in art. 6 of the Concordat with Italy cannot be regarded as recognition of the privilege, since it is granted to state employees to the same extent.
See *NATURA DEI P. DEI C.*
The clerical privileges discussed thus far constitute prerogatives which, insofar as the expression may be fitting for institutions of canon law, must be regarded as matters of public order, since they are established not so much for the personal benefit of the individual as for the benefit of the category to which he belongs. For this reason they are indefeasible: the cleric cannot renounce them but may lose them only for reasons foreseen by law. Such are the reduction to the lay state and the perpetual privation of the right to wear the ecclesiastical habit. If this penalty is remitted or the subject is readmitted to the clerical state, the lost privileges are recovered (can. 123, 213 § 1, 2304). In the case where the privation of the right to wear the ecclesiastical habit is only temporary, the privileges remain suspended for as long as it lasts (can. 2300). As regards the persons in whose favor the privileges are established, it should be noted that they pertain not only to clerics proper but also to religious of both sexes, including novices and lay brothers.