Page:Catholic Encyclopedia, volume 12.djvu/505

 PRIVILEGES

439

PRIVILEGES

the privilegium fori that it is ordered in many dio- ceses that all complaints of and against clerics be laid first before the bishop for settlement; should no settlement be reached, the case may then be brought before the secular court [Archiv flir kathol. Kirchen- recht, VII (1862), 200 sqq.; LXXXIII (1903), 505 sq., 562; LXXXV (1905), 571; LXXXVI (1906), 356 sq.].

Privilegium Immunilatis. — This consists in the exemption of ecclesiastical persons, things, and places from certain general obligations and taxation. The immunity is, therefore, either personal, or real, or local. Personal immunity is the exemption of the clergy from certain public burdens and obligations, which the general religious sentiment of the people declares in keeping with their office, or which render the discharge of their calling difficult. Whether this privilege, as well as the other clerical privileges, rests on Divine law, the Church has never dogmati- cally decided, although canon law declares that churches and ecclesiastical persons and things are free from secular burdens according to both Divine and human law (c. 4 in Vlto de cens.. Ill, 20); that ecclesiastical immunity rests on the Divine command (Council of Trent, Sess. XXV de Ref., c. xx); and that it is false to assert that ecclesiastical immunity can be traced only from secular law; that the im- munity of the clergy from military service could be abolished without any breach of the natural law or of justice, nay that it must be abolished in the in- terests of progress and civil equality (Syllabus, nn. 30, 32).

In accordance with the liberties granted the pagan priests, the Christian emperors after Con- stantine exempted the clergy from the obligation of undertaking municipal offices, trusteeships, guardian- ships, and all public functions, from military service, quartering, and the other personal munera sordida (later called villainage), and in part also from per- sonal taxation (Cod. Just., 1. I, t. 3 de episc. Novella cxxiii, c. 5). For the most part these privileges also prevailed in the Teutonic kingdoms. Thus, Frederick II exempted the clergy from all taxation and from all socage and teaming (Authentica, "Item nulla" 1220 ad 1. 2, C. de episc. I, 3). But decretal law (c. 3 in Vlto de immun. Ill, 23; c. 3 in Clem, de cens. Ill, 13) demanded the complete immunity of the clergy (cc. 2, 4, 7, X de immun. Ill, 49; c. 4 in Vlto de cens. Ill, 20; c. 3 in Vlto de immun. Ill, 23; c. 3 in Clem, de cens. Ill, 13; c. un. in Clem, de immun. Ill, 17). This immunity was indeed in the Middle Ages, and especially at the end, complete, since in many cases we find the secular rulers doing their utmost to impose .secular burdens on the clergy. The Council of Trent (Sess. XXV de Ref., c. xx), therefore, again exhorts the princes to respect this privilege. In recent times, and especially since the French Revolution, the State's demands on the clergy have been in- creasing. Hence the above-cited ex-planations of Pius IX in the Syllabus, nn. 30, 32.

The exemption of the clergy from national taxa- tion is to-day almost entirely abolished; their exemp- tion from municipal taxation still continues in some places. In Austria and Germany clerics are exempt from public offices and services and from serving as assessors and jurors. In these countries the clergy are also free from undertaking trusteeships, if they do not obtain the consent of their superiors. Finally, candidates for the ecclesiastical state, and still more ordained clergymen, are exempted in Germany and Austria from military service under arms. Less favour is shown the clergy in Italy, and prac- tically none in France since the separation of Church and State. Conditions vary greatly in other lands.

Privilegium CompetenlicE. — This is a right possessed by the clergy, in accordance with which, in the case

of executions against their property an income. sufficient to constitute a livelihood, must be left to them. A beneficium compelentice was enjoyed by the Roman soldiers (fr. 6, 18, D. de re iudic. XLII, 1). The Glossa argues that, since the cleric is a miles coelestis militia; (cf. also c. 19, CXXIII, q. 8), the same privilege should be recognized in his case. But this constitutes as poor a foundation as the c. "Odoardus" (c. 3, X. de solut. Ill, 23), according to which excommunication may not be inflicted on an insolvent cleric, who binds himself to pay on the improvement of his financial position. The origin of the privilege is to be referred rather to custom and to the idea expressed in many canons, that a cleric may not be brought into such a position that he is forced to seek a livelihood in an unworthy man- ner. In both theory and practice the privilege af- forded protection from personal arrest, foreclosure of a mortgage, and from the immediate vacation of property in favour of the lay person. It also ex- tended to the patrimony forming the title of or- dination. On the other hand, if the cleric has judicially denied his guilt, has been guilty of a fraud, disregarded cautions, or if the lay person be poorer than the debtor, the privilege is lost.

Since the abolition of the privilegium fori, the scope of the privilegium competentice has been dependent on the state laws. Thus, according to § 850, Ziff. 8 of the civil suit regulations of the German Empire, the yearly income or the pension of clerics is free from seizure to the extent of 1500 marks, and of the excess only one-third is liable. According to § 811, Ziff. 7, 8, 10, all objects necessary for the discharge of the clerical calling (e. g. books, proper clothing) are also exempt from seizure. In Austria, according to the law of 21 April, 1882, 800 gulden a,nnually are exempt in the case of clergy employed in the care of souls and ecclesiastical beneficiaries, and 500 in the case of other clerics. In Italy also the privi- legium competentice still prevails, but it has been abolished in France.

As the privilegia clericorum are the legal conse- quences of the religious station, granted for the pro- tection of the clerical calling, they may not, being the rights of a class, be waived by any individual, nor may they be withdrawn from an indi\idual except in specified cases. They are forfeited by degradation (c. 2 in Vlto de pcen. V, 9) ; by the com- mitting of a serious criminal act and simultaneously laying aside the clerical garb in spite of a triple warning of the bishop (cc. 14, 23, 25, 45, X de sent, excomm. V, 39; c. 10, X de iud. II, 1; c. 1, X de apostat. V, 9) ; by leading an unseemly or despicable Ufe and simultaneously laying aside the clerical garb in spite of three warnings from the bishop (c. 16, X de vita et honest, cleric. Ill, 1; c un. in Vlto h. t. Ill, 1; c. 1 in Clem. h. t. Ill, 1); and finally in the case of clerics in minor orders by laying aside the clerical garb (Pius IX, 20 September, 1860).

II. — Like clerics, consecrated and sacred things and places enjoy certain privileges and freedom from burdens and obligations ; this is based on the privile- gium immunilatis, and is termed real or local im- munity. All objects intended for ecclesiastical use are termed res ecclesiasticce. Res ecclesiastica in this wide sense are divided into res ecclesiasticce in the narrow sense and res sacrce. Ecclesiastical things (res ecclesiasticce in the narrow sense), or ecclestiastical property (patrimonium or peculium ecclesiasticum), mediately maintain the Divine wor- ship, and include all buildings and real property belonging to the Church except the churches and cemeteries, the funds for the maintenance of the servants of the Church {bona mcnsw, bona benejicii), and the ecclesiastical buildings {bona fabriece), and finally the property designed for charitable objects or pious foundations (res religiosw, causie