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 t>R!VILEGES

438

PRIVILEGES

be impossible; if the obstacle to the journey be only temporarj', the assailant must promise the bishop on oath at the time of receiving absolution to present himself before the pope on the disappearance of the obstacle; should he fail to do so, the sentence re- vives (cc. 1, 2, 6, 11, 13, 26, 32, 33, 37, 5S, 60, X h. t. V, 39; c. 22 in Vlto h. t. V, 11). According to the Council of Trent, the bishop may also absolve when there is question of secret offences (Sess. XXIV de Ref., c. vi) and, in virtue of the quinquennial faculties pro foro inierno, of the less serious of- fences. In consequence of the more extensive powers of releasing from ecclesitistical censures enjoyed by confessors to-day, personal appearance at Rome is perhaps necessarj- onl}' in the most serious cases. Abbots absolve their subjects in the case of lighter offences occurring among themselves (c. 2, 32, 50, X h. t. V, 39). This privilege grows with theoflfice. Thus, whosoever commits or causes a real injury to a cardinal, papal legate, or bishop incurs excom- munication speciali modo reservata (Pius IX, "Apos- tohcae SecUs moderationi", 12 October, 1869, I, 5). ^Miile the old German common law punished the injuring of a cleric with a heavier fine than the injuring of a lay person, the modern secular laws, like the Roman law, afford special protection to clerics only during the exercise of their calling.

Primkffium Fori. — This secures the clergj' a special tribunal in ci\-il and criminal causes before an ecclesiastical judge. The civil causes of clerics pertain by nature to the secular courts as much as those of the laity. But the thought that it was un- seemly that the "fathers and teachers of the faithful should be brought before laj-men as judges, and also the exjierience that many laymen were greatly in- clined to oppress the clergj- (c. 3 in VI<o de immun., Ill, 23), led the Church "to withdraw her servants even in civil matters from the secular courts, and to bring them entirely under her own jurisdiction.

In the Roman Empire, in virtue of the decisions of the synods, a cleric could in civil disputes cite another only Ijefore the bishop (cc. 43, 46, C. XI, q. 1). However, these sjTiodal decrees obtained no recognition from the lay courts, until Justinian rele- gated all disputes of clerics among one another and complaints of laymen against clerics to the ecclesi- astical forum (Novella Ixxix, Ixxxiii, cxxiii, cc. 8, 21, 22). In the Prankish kingdom, also, clerics could summon one another only before the bishops in ci\-il causes (First S>-nod of Macon, 583, c. S), while laymen engaged in a civil dispute with clerics could proceed before the secular court only with the bishop's permission (Third S^•nod of Orleans, 538, c. 35). The Edict of Clotaire II (614), c. 4, altered the existing laws, by determining that at least actions for debt against clerics might also be brought before the episcopal tribunal. The Carlo- vingian legislation made herein no alteration, but it forbade clerics ex-prcssly to appear personally before the civil courts, ordering them to appoint a defender (advocatus) to represent them (Admonitio generalis, 789, c. 23).

In criminal causes, the bishop had in the Roman Empire no jurisdiction, except in trivial matters. To him pertained only the deposition of the crim- inal cleric before punishment was inflicted by the secular judge (Novella cx.xiii, c. 21, § 1; cxxx\-ii, c. 4). In the Frankish kingdom bishops were con- demned and degraded at the s\Tiod, whereupon the secular court executed the sentence of death, when necessan,'. Still more in the case of the other clergj" did the power of the lay courts to inflict punish- ment prevail. But, from the time of the Edict of Clotaire II (614), priests and deacons began to be treated in the same manner as the bi.shops. In this respect the Carlovingian legislation remained essen- tially the same (Synod of Frankfort, 794, c. 30).

The gradual liberation of the clergj' from the lay forum received a further incentive from the ever- increasing number of ecclesiastical causes, from the acceptance of the dictum that the clergy were sub- ject to personal, and the Church to the Roman law, from the ecclesiastical prohibition to clerics to engage in duels or ordeals, from the growing political im- portance of the bishops as counts and territorial lords after the disintegration of the Carlovingian Empire. Thus, in ^-iew of the ferocious acts of violence committed bj' the laitj-, Pseudo-Isidore could demand in the most urgent terms that no cleric be simimoned before the secular courts (cc. 1, 3, 9, 10, 37, C. XI, q. 1). This principle was called into life by the medieval popes, and, bj' decretal law, the exclusive competence of ecclesiastical judges over clerics in ci\nl and criminal causes was established (cc. 4, 8, 10, 17, X de iud., II, 1; cc. 1, 2, 9, 12, 13, X de foro compet., II, 2). In feudal affairs alone were the clergj* subject to the secular courts (cc. 6, 7, X de foro compet., II, 2). The ecclesiastical courts were thus competent for civil causes of clerics among one another, of laj'men against clerics, and for alt criminal causes of clerics. This prii'ilegium fori was also recognized bv imperial laws (.\uthen- tica of Frederick II, "Statuimus", 1139, ad 1. 33, C. de episc. I, 3). From earlj' times, however, it met with great opposition from the State. With the growing ascendancj- of the State over the Church, the privilege was more and more limited, and was finallj' everj'where abrogated.

To-daj', according to secular law, the civil and criminal causes of clerics belong to the laj- court. Onlj- with respect to the purelj- spiritual conditions of their station and oflRce, are clerics subject to their bishop, and then not without certain state limita- tions — especiallj' with respect to certain practical punishments. However, the Church maintains in principle the priinlegium fori, even for those in minor orders. pro\-ided that thej- have the tonsure and wear clerical garb, and either alreadj' ser\-e in a church or are preparing in a seminarj- or universitj' for the reception of higher orders (Council of Trent, Sess. XXIII de Ref., c. vi; Sess. XXV de Ref., c. xx; Syllabus, n. 31). On the other hand, the popes have in their recent concordats to a great extent relin- quished this position. Thej' have, however, de- manded that the bishops should be apprised of criminal proceedings against a cleric, so that he maj' be able to take the necessarj- ecclesiastical measures (Bavarian Concordat, art. xii, litt. c; .\ustrian Concordat, art. xiii, xiv; Concordat with Costa Rica, art. xiv, x\-; that with Guatemala, art. x^^, x\-ii; that with Nicaragua, art. xiv, xv; that with San Salvador, art. xiv, xv). This warning of the bishop is also ordered by the laws of many states, as well as a similar regard for the cleric himself in the case of criminal proceedings (Regulation of the Prussian Minister of Justice of 12 June, 1873; of 25 August, 1879; Austrian Law of 7 Mav, 1874, §29).

But, wherever the pope has not relinquished the priifileffiiim fori, lawgivers and administrators, who direct!)' or indirectlj- compel the judges to summon ecclesiastical persons before the secular forum, incur excommunication speciallj' reser%-ed to the pope (Pius IX, "Apostolica- "Sedis moderationi", 12 October, 1869, I, 7). In places where the papal derogation of the pririlegium fori has not been secured but where justice can be obtained onlj' before the secular j\idge, a laj- complainant, before summoning a cleric before the secular courts, should seek the bishop's permission, or, if the complaint be against a bishop, the permisson of the pope. Otherwise, the bishop can take punitive measures against him (S. Congregation of the Inquisition, 23 January, 1886). It is also in accordance with the spirit of