PRIVILEGES OF CLERICS. — These are special immunities that constitute part 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 of the freedom necessary for the exercise of its related functions, are four in number, known by the historic designations: canonis, fori, immunitatis, competentiae. In the current canon law they are regulated respectively as follows.
I. « PRIVILEGIUM CANONIS ». — This is a special protection against violence. It takes its name from can. 15 of the Second Lateran Council of 1139 (c. 29, XVII, q. 4).
The CIC declares that those who inflict real injury (that is, by acts of violence) upon a sacrilege (v.) (can. 119). It is therefore a special penal protection granted to clerics in defense of their person, and it is extended (in addition to all clerics, even those who have merely received the tonsure) to religious of both sexes, including novices (can. 614), and to members of pious associations living in common under a rule approved by the authorities, though without public vows (can. 680). The privilege concerns, as has been seen, only realis iniuria, that is, acts of violence that materially affect the person and impair either the integrity of the body, or the honor or dignity (e.g., spitting upon the person, tearing clothing, etc.), or the personal freedom of the cleric. The severity of the penalty imposed for violating this privilege is graded according to the dignity and position of the person offended. Whoever uses violence against the Pope incurs excommunication in a most special manner reserved to the Apostolic See: he is ipso facto vitandus, infamous by law, and, if a cleric, must be degraded; if against a cardinal or papal legate, he incurs 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 a titular one, he incurs latae sententiae excommunication, specially reserved to the Apostolic See; if against other clerics or religious, he is subject to excommunication reserved to his Ordinary, who may add other appropriate penalties (can. 2343).
Given the gravity and nature of the penalty, violation of the privilege naturally presupposes an adequate intentional element. With regard already to the necessity of such an element, the old canonists taught that the expression suadente diabolo used by the well-known canon meant precisely proof of intent, the moral imputability necessary to constitute the offense (Pateri), and that consequently one would not incur the censure who struck, or even killed, a cleric in legitimate self-defense, or accidentally without imputability, or while unaware of his character. Similarly, under current law it is held that if the injury is inflicted through distraction, or following a slightly culpable impulse, or in self-defense that does not exceed the reasonable limits permitted, neither the legal characterization nor the penalty applies.
II. « PRIVILEGIUM FORI ». — By virtue of can. 120, in all civil (contentious) or criminal cases clerics must be judged (convenuti debent) by an ecclesiastical judge, nisi aliter pro locis particularibus legitime provi- sum fuerit; that is, except where provision has been made otherwise in a legitimate manner (namely, by virtue of a concordat or a territorial papal law or also — according to the prevailing doctrine — by custom) for individual territories. According to the same canon, moreover, authorization from the ecclesiastical authority, that is, from the Holy See or the Ordinary, depending on the hierarchical rank or office of the defendant, is necessary in order to bring an action against clerics before secular tribunals. Whoever violates these provisions is subject to excommunication or lesser penalties, in relation to the rank of the defendant. Ordinaries, however, must not deny laypersons, except for a just and serious reason, the right to summon before a secular tribunal ecclesiastics of lower hierarchical rank, especially when efforts to reach an amicable settlement of the dispute have failed (can. 120 § 2). On the other hand, clerics summoned to court by someone who has not requested authorization from the ecclesiastical authority may, in order to avoid greater evils, appear before the secular judge, informing the Superior from whom the license should have been obtained (can. 120 § 3). The privilege applies to cases in which the cleric is summoned before the secular forum as an accused person or as a defendant in the proper sense; not as a witness, or in the capacity of administrator or guardian, and likewise not when he is summoned by virtue of joinder or connexity of actions (e.g., called in warranty), or when, having himself brought an action against a layperson, he is in turn counter-sued by the opposing party.
Recognition of the privilegium fori of clerics, which is connected with the more general question of recognition of the ecclesiastical forum (that is, the jurisdiction of the Church in the sphere of relationships, including civil or criminal matters, otherwise pertaining to the State), was among the matters most contested by modern state legislation, after a long period of almost universal observance.
Its origin, in fact, at least for civil cases, is traced back to Justinian’s legislation (Nov. 1, LXXIX, c. 8; 1, LXXXIII, c. 21; 1, CXXIII, c. 22). The councils of the Frankish and Carolingian periods confirmed the principle, though with some limitations, and thereafter the great medieval popes, Alexander III, Celestine III, and Innocent III, extended its application to all civil and criminal cases, with the sole exception of cases of a feudal nature (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 her part, never consented in principle to renounce II. She therefore 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 October 1911, where it was proclaimed that not only persons invested with public authority, but also private individuals who
they brought clerics before the secular tribunal without authorization from ecclesiastical authority, incurred the excommunication reserved to the Holy See. Nevertheless, the latter subsequently specified that ancient and immemorial customs and concordat concessions that circumscribed or had abolished the p. could legally be maintained. This doctrine, as has been seen, passed into the Code. It has been questioned whether, in countries where the p. has been legitimately abolished for one of the aforementioned reasons (custom or concordat agreements), the prescription of can. 120 § 2, which requires authorization from ecclesiastical authority in order to summon clerics before the tribunals of the State, must nevertheless be observed. Authoritative opinions favor the affirmative. As regards territorial law in Italy—where, as is known, by the Siccardi Law of 9 April 1850 no. 1013, subsequently extended to the annexed provinces, the ecclesiastical forum had been abolished by a unilateral act of the State, never recognized by the Holy See—the prevailing doctrine currently holds that the p. of the forum in criminal matters was abolished by virtue of the Lateran Concordat, and in particular by the provision of art. 8, which considers the case of an ecclesiastic or religious being referred to the criminal magistrate for an offense. It is inferred that, since the Holy See agreed and approved that, in the event of an offense, the priest or religious could be tried or even condemned by the secular forum, requesting only that, in the event of condemnation, he not be detained with lay convicts but in a separate place, it thereby recognized the competence of the secular tribunal to try the cleric and consequently renounced the immunity of the privileged forum. Some would infer a fortiori the renunciation of the ecclesiastical forum also for contentious proceedings, since in these the reasons for consideration of priestly dignity that apply in criminal proceedings would not arise; but others object that, in the silence of art. 8, it cannot be held that the Church renounced the privilege, while still others maintain that it is to be understood as preserved in the sense that the plaintiff is required to obtain the license of ecclesiastical authority in accordance with the prescription of can. 120 § 2 CIC (the practice most commonly observed).
III. • PRIVILEGIUM IMMUNITATIS. - By this privilege, also called p. exemptionis, was formerly understood an immunity of the cleric that in principle encompassed all services and burdens arising from civil jurisdiction, hence both strictly personal obligations incompatible with the clerical state (such as military service [v.], the office of judge in secular cases, etc.) and obligations consisting in the payment of taxes, both personal and patrimonial (the latter also customarily called real burdens). The p., whose origin may be traced back to the immunities already granted to pagan priests and subsequently granted by the Christian emperors to the ministers of the Gospel, was therefore intended to exempt clerics from personal services unsuitable to their state and also to exempt their property from public taxes. In practice, however, over the course of the centuries the institution did not remain clearly delineated except as a genuine personal immunity of the cleric (for which reason it was also called privilegium servitiorum), whereas immunity from taxes was often confused or indiscriminately combined with the real immunity pertaining to ecclesiastical property. The CIC, reaffirming the various p. of the c., provides as follows concerning this matter: Clerici omnes a servitio militari, a muneribus 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 duties and offices contrary to the spirit and condition of the clerical state. This principle is dictated both by the need to guarantee the freedom and dignity of clerics and by the need to keep them apart from any activity contrary or unsuitable to the mild character required for divine service. Accordingly, this p. is paralleled by a corresponding duty of clerics to abstain from certain offices and activities (cf. cann. 139, 141, 188, n. 6). The text of can. 121 makes no express mention of the exemption of clerics from taxes. It has therefore been asked whether this exemption too could be understood as included in the immunity a muneribus et publicis civilibus officiis a statu clericali alienis mentioned by the canon, or whether it could not. Among the various opinions on the matter, it seems possible to affirm that in can. 121 munus is understood in the sense of service, coordinated with, if not equivalent to, the concept of officium, and that the exemption from tax burdens should therefore not be understood as included in the aforementioned norm. Moreover, although it was still mentioned in treatises written before the Code, this exemption had by then practically become no more than a historical memory, not only because it had for the most part fallen into desuetude, but also as a result of the express derogation from it contained in numerous concordats concluded by the Holy See before the Code. It could therefore rightly be said that, on this point, at the time of codification a genuine ius concordatarium had already been established as particular law in many States, acknowledging the abolition of the p. that had already taken place. The CIC thus did no more than consecrate, albeit tacitly, what by then was in practice the universally prevailing discipline. Once the p. of immunity had thus been reduced to exemption from military service and from public duties and offices, its recognition, in fact, in this more limited configuration, may be seen as more or less broad and explicit in various concordatary and state legal systems. In Italian territorial law, the matter is regulated in arts. 3 and 4 of the Concordat. By virtue of these provisions, in addition to the possibility granted to seminarians and novices of postponing military service until the age of twenty-six, clerics in sacris and professed religious are exempted from military service, except in the event of general mobilization. In the event of general mobilization, priests with the care of souls (Ordinaries, parish priests and coadjutors, etc.) are exempted from reporting for service. Other clerics or religious are preferably assigned to medical services and, if priests, retain the ecclesiastical habit, exercising the sacred ministry among the troops under the ecclesiastical jurisdiction of the Military Ordinary (art. 3). Ecclesiastics and religious are also exempt from service as jurors (art. 4).
IV. • PRIVILEGIUM • O • BENEFICIUM COMPETENTIAE. - This p., or benefit, already granted in Roman law to certain categories of debtors (including veterans and soldiers in general), whereby they were entitled not to be condemned to pay except to the extent of their means (in id quod facere possunt), was subsequently extended by the glossators to clerics, by analogy between earthly and priestly military service. It was based especially on a very ancient custom supported by a broad interpretation of the celebrated decretal Odoardus (c. 3, X, III, 23).
In this matter, can. 122 now affirms the cleric’s right that, when he is obliged to satisfy a creditor, the minimum necessary for his dignified maintenance, as prudently determined by the ecclesiastical judge, not be taken from him (cf. also can. 1923 § 1). The cleric’s obligation to satisfy the creditor’s claim as soon as possible remains in force. In practice, this p. has now lost almost all significance, given the limitations placed on forced execution by modern legislation. An exemption from attachment established in art. 6 of the Concordat with Italy cannot be regarded as recognition of the p., because it was granted to the same extent to State employees.
V. NATURA DEI P. DEI C. - I p. dei c., di cui sin qui si è fatto parola, costituiscono prerogative che, in quanto l'espressione possa convenire a istituti dell'ordinamento canonico, debbono considerarsi d'ordine pubblico, essendo stabiliti non tanto nell'interesse personale del singolo, quanto in quello della categoria cui appartiene. Perciò essi sono indeclinabili: il chierico non può rinunciarvi, ma soltanto perdelli per motivi previsti dal diritto. Tali sono la riduzione allo stato laicale e la privazione perpetua del diritto di vestire l'abito ecclesiastico. Se questa pena è rimessa o il soggetto è riammesso nel ceto clericale, i p. perduti si riacquistano (cann. 123, 213 § 1, 2304). Nel caso in cui la privazione del diritto all'abito ecclesiastico sia solo temporanea, fin quanto essa duri i p. rimangono sospesi (can. 2300). Quanto alle persone in cui favore i p. sono stabiliti, è da tener presente che essi competono, oltre che ai chierici veri e propri, anche ai religiosi d'ambo i sessi, compresi i novizi e i conversi
(cann. 641, 490), nonché ai membri delle pie società con vita comune ed organizzazione simile a quella dei religiosi (can. 680).