Immunity

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(Latin immunitas).

Immunity means an exemption from a legal obligation (munus), imposed on a person or his property by law, custom, or the order of a superior (lex 214, sqq. De verb. signif., 1. 50, tit. 16). This exemption is therefore a kind of privilege and follows the same rules. In ecclesiastical terminology, immunities are exemptions established by law in favour of sacred places and sacred things, church property and persons. If we consider, not only actual exemptions, which vary at divers times and in divers countries, but their principle, immunity may be defined as the exemption of ecclesiastical persons and property from secular jurisdiction. This principle varies necessarily in its application according to circumstances.

In strongly hierarchical societies, for instance in a feudal society, immunities play an important part; on the other hand, in our modern society, where men are much more on a basis of equality, immunities are less useful; they are looked on with disfavour by the highly centralized secular power, and suffer, as is evident, much more restriction.

Division

An immunity according to its object, is local, real, or personal. Local immunity refers to places consecrated to Divine worship, to churches; real immunity, to Church property. personal immunity, to clerics, their lawsuits and trials and, in a measure, to their property. We shall briefly consider each of these three kinds as viewed by canon law, after which we shall see to what extent they are in vogue in our modern societies.

A. Local immunity withdraws places dedicated to Divine worship from secular jurisdiction and preserves them from acts that would profane the respect due to holy places. It implies likewise the right of a person to remain in a place consecrated to God, so that the public authorities may not remove delinquents therefrom. This is the right of asylum (q.v.); it was greatly restricted by canon law, and is now abandoned everywhere without any formal protest from the Church. As local immunity arises from a place or building being dedicated to Divine worship, it must be considered as attaching not only to churches that have been solemnly consecrated, but also to those that have merely been blessed, and to chapels and oratories legitimately erected by ecclesiastical authority; it extends likewise to the accessory buildings, sacristy, porch, yard, belfry, and to the neighbouring consecrated ground and the burial ground (ch. ii, 9, De immunit. eccles. lib. III, tit. 49). Among the profane acts forbidden in churches by canon law, not to mention those that are prohibited by their very nature, we may cite: criminal secular trials (c. v, h. t.) even under penalty of excommunication; civil secular trials (c. ii, h. t. in VI); but acts of ecclesiastical jurisdiction (even judicial) are not forbidden. Commerce and trading are prohibited, likewise fairs, markets, and in general all purely civil meetings, as secular deliberative assemblies (parlamenta), unless permission has been granted by the ecclesiastical authorities, whose rights are thus safeguarded. The employment of force to enter sacred places, breaking down doors, interrupting or preventing Divine service, are violations of local immunity. This crime was formerly punished with excommunication ipso facto incurred, but this is no longer enforced by the Constitution "Apostolicæ Sedis". This kind of immunity exists in our day almost unimpaired; the law recognizes the right of the clergy to the internal administration of their churches and thus guarantees, either directly or indirectly, their exclusive application to Divine service.

B. Real immunity withdraws Church property from secular jurisdiction so that it is free from public charges, in particular from taxation. We are not speaking here of the sacred buildings or of the objects required in ecclesiastical ceremonies and the administration of the sacraments, which by their nature must not be used for profane purposes, but of things that have been set aside to furnish revenues for the churches, the clergy, and the different works organized and controlled by the Church; we refer to Church property, in its widest sense, movable and immovable: lands, buildings, episcopal residences, presbyteries, monasteries, schools, ecclesiastical hospitals, etc., also titles to property, real rights, incomes, etc. All these properties, sources of revenue to the Church and her ministers, were exempt from the charges and taxes imposed on the corresponding properties of the laity. And, as this exemption was general and public, clerics could not offer or consent to any taxes on the property of their benefices. As a matter of fact, this immunity, recognized in principle by the laws of the Christian States, did not result in an actual freedom from taxation; not only was Church property subject to ecclesiastical taxes, annates, tithes, and others, but it contributed largely to the public expenditure of the State; however, the principle of immunity was protected by having the subsidies voted by the clergy themselves as gratuitous gifts, after papal authorization. The amount of the subsidy was to be settled by the bishops and clergy, in accordance with canon xix of the Lateran Council of 1179 (c. iv, h. t.); and canon xlvi of the Lateran Council, of 1215, protects the clergy against excessive demands of princes, by requiring, under pain of nullity, the previous consent of the pope (c. vii, h. t.). The voting of the contributions from ecclesiastical property, as is well known, was the principal object of the celebrated Assemblies of the French clergy (Bourlon, "Les assemblées du clergé", Paris, 1907). At present, the property of the Church has greatly decreased, and no longer enjoys real immunity; except as a matter of principle, it hardly differs from secular property. However, with regard to buildings used for Divine service, and the movable property appertaining thereto, most Governments consider them as property of public utility, dedicated to the service of the community, and therefore exempt from taxation. That is also the reason why in several of the United States, charitable and educational institutions pay no taxes; in this, however, it is impossible to recognize an ecclesiastical immunity properly so called, based on the religious character of these establishments.

C. Personal immunity is that which withdraws clerics from secular jurisdiction, on account of their perpetual dedication to the service of God. It is not concerned with the withdrawal from secular jurisdiction of acts of the clergy as clerics, and in their official capacity; it is clear that, from such a point of view, they are solely under ecclesiastical jurisdiction, without there being any necessity to having recourse to any immunity. Personal immunity withdraws them from secular jurisdiction in matters where other citizens would be subject to it. If clerics are obliged to keep the ordinary laws they take their orders and commands solely from ecclesiastical authority; the penal sanctions which they would incur for violating the ordinary laws may not be imposed on them by secular judges, in virtue of the privilege of the tribunal. This privilege withdraws the clergy entirely from secular judicial jurisdiction, so that not only spiritual lawsuits of clerics, but also temporal lawsuits whether the suits be criminal or civil, fall within the jurisdiction of the ecclesiastical judges (see CLERICAL PRIVILEGES). The privilege of the tribunal has disappeared almost completely today, with the consent, whether tacit or explicit, of the Church in the various concordats (see Nussi, "Quinquaginta Conventiones", Rome, 1869, § xx). Further, personal immunity exempts the clergy from public duties imposed by law on citizens in general or on certain classes, and also from taxation and imposts. Some of these public duties were considered servile, for instance, statute labour, the duty of contributing personally to the upkeep of roads and bridges; others were considered honourable, as guardianship, the municipal magistracy (curia), military service. The clergy, like the nobility, by reason of their rank, the highest of all, were exempt from servile duties; they were excused from the others, by reason of their withdrawal from secular business. The first class of duties has disappeared in our days; as to the second, the immunity has been maintained to a large extent under modern laws such is the manifest incompatibility of the sacerdotal ministry and certain of these offices. Thus clerics are not called on to act as jurymen in criminal affairs. In some countries, clerics filling positions recognized by the State are exempt from guardianship (for instance, parish priests in Italy), and are excluded from public or municipal offices in the localities where they exercise their ecclesiastical functions. As to military service, in countries where it is compulsory the condition of the clergy varies. They may be entirely exempt, as in Austria and Belgium, or they may be under restricted obligations, as in Italy or Germany; finally, they may be placed on an exact equality with the other citizens, as now happens in France. Such a violation of their immunity is not one that the Church tolerates and accepts in silence; the opposition between military service and the vocation of the clergy, ministers of peace, is only too violent and apparent; the bishops and the popes have, therefore, protested against the laws which in divers countries compel the clergy to serve in the army (cf. the letter of Leo XIII to Cardinal Nina, dated 27 August, 1878). Finally, clerics were exempt from taxes and imposts, whether purely personal, as the poll-tax; or real, as property tax. It must be recognized however that the latter exemption was practically disregarded by all nations except the Papal States. It has now completely disappeared.

Juridical origin

The raison d'être of all this immunity is the respect due to God, which is shared by those things and persons dedicated to His worship. Viewed in this light it springs from both natural and Divine law. Moreover, it is certain that if we consider the sacred ministry and worship formally, the property, the persons, and their acts are subject, by Divine right, only to religious authority, but that is not properly speaking an immunity. It is only one aspect of the greater question of the independence of ecclesiastical society of the civil society. The precise point in question is the juridical origin of the immunities we have just spoken of, which do not directly concern their acts as ministers of religion; are these immunities of right Divine, or of positive canon law, or even of secular law, that is, only generous concessions of princes, which might be withdrawn at will? No one disputes that immunities are part of the positive ecclesiastical law; every one admits that they have been inserted in civil laws else they could not have been applied. But were canon law and civil law already bound by Divine law? If they were, the Church would be unable to make concessions in the matter of immunities, and the civil laws in suppressing them would be essentially unjust and without force. In answering this question we meet with two extreme opinions, but the truth will be found between them. A number of theologians and canonists (cf. Ferraris, "Prompta Biblioth.", s.v. "Immunitas", a. I, n. 7, 14) hold that the immunities are established by Divine law, with the exception of the right of asylum. They point out that in all nations, the consecration to the Deity of temples, property, and persons, placed them outside ordinary conditions, and made them specially exempt; in the Old Testament this was the case in regard to a worship that only prefigured the Christian worship; the custom of exemptions dates back to the very origin of the Church; finally, certain canonical texts speak of the immunities as being of Divine right. Opposed to this we have the "regalist" jurists declaring that "the immunities of the clergy are favours which the ecclesiastics received from sovereigns, not from popes and councils" (Héricourt, Les Lois ecclésiastiquesde France", H, v, viii); and Governments have acted in accordance with this view.

These "regalists" say that the clergy, allowance made for their spiritual functions, are on a level with ordinary citizens in all other matters; that Church property, although legally applied to the clergy and the expenses of Divine worship, nevertheless, does not cease to be essentially a temporal thing, and consequently subject to the secular power; that all immunities originate in concessions of emperors and Christian princes. Recent canonists hold a middle opinion (cf. Cavagnis, "Instit. juris publ. eccles.", II, 323 sq., 4th ed., Rome, 1906). They remark that the Church has never given an official answer to the question, but that it seems possible to ascertain exactly what she thinks from two facts: on the one hand she protests against the civil laws that suppress the immunities, and claims them as belonging to her of right (cf. prop. 30, 31 and 32 of the "Syllabus"); she therefore does not consider them to be concessions granted freely by the civil authorities. On the other hand, yielding to the conditions and circumstances of modern society, she makes no effort to revive the immunities that have disappeared, at least the right of asylum and exemption from property taxes, which is conclusive that she does not consider them unchangeable prescriptions of the Divine law. These authors conclude that the immunities are founded in Divine right, but emanate from positive canonical legislation; they repeat with the Council of Trent (Sess. XXV, c. 20, "De Ref."), that immunities arise by Divine direction and ecclesiastical sanctions, "divinâ ordinatione et ecclesiasticis sanctionibus". To the partisans of the first view they answer that the custom of ancient races, the prescriptions of the Mosaic law, and the practice of the early ages of the Church prove indeed that immunities are in conformity with Divine law, but they do not demonstrate the existence of a law properly so called. What the Divine law pointed out required to be defined and completed by positive legislation. To the "regalists" they reply that all the immunities did not originate from imperial or princely concessions, several of them having been established positively by the Church, in agreement, it is true, with the secular powers; moreover, that the others have been "canonized" and inserted in ecclesiastical law and constitute for the Church an acquired right; besides they are sufficiently based on Divine law not to be considered as purely gratuitous favours conferred by the State on the Church. This middle theory adopts therefore all that is reasonable in the two extreme opinions.

Brief history of the immunities

The history of ecclesiastical immunities is a chapter of the more extensive history of the relations of Church and State. Moreover, some of them, as the right of asylum and the privilege of the tribunal, have had specially chequered careers. In general, we may say that the immunities developed with the growth of the Church, then they have been continuously restricted in proportion as the separation of the two powers became accentuated and the State became laicized. As long as the civil power, as such, was religious and Catholic, the laws on mixed questions settled by agreement, the clergy the first order in the State, and the public authorities helped to enforce the legislation and to carry out the decisions of the officially-recognized ecclesiastical authority, immunities were, in a certain sense, a social necessity; and that was especially true of a state of society wherein privileges and private laws played an important part, as in the feudal days. The feudal system adopted the immunities of the Roman law. When the Christian religion was recognized by the Roman empire, nothing seemed more natural than to grant it immunities and privileges equal to those that had been enjoyed by the religion that had hitherto been the official one. Constantine granted immunity to the churches, and to the clergy an exemption from all public and municipal charges and even certain taxes, as the poll-tax (Cod. Theod., lib. XVI, tit. ii, "De episcopis", especially lex 2). If the law placed difficulties in the way of the curiales who wished to join the clergy, it opposed the bringing of the clergy into the curia (ibid., leg. 7,9,11) As to property, not only could it be freely acquired and held by the churches, but being devoted to a public service, it was exempted by Constantine from common taxes and extraordinary charges (lib. XI, tit. i and xvi). This legislation maintained by Justinian, was received and confirmed by the imperial German law (Auth. "Item nulla", of Frederick II, according to lex 2 of the Cod. lib. I, tit. iii, "De episcopis"). In the kingdoms of the Franks, the property of the Church did not at first enjoy a general immunity, but it was often granted by a special concession of the king; later, the exemption was common, but repaid, doubtless more than equitably, by the contributions of which we have spoken, and which were gratuitous in nothing but the name (dona gratuita). The legislation of the Decretals, which corresponds, as is well known, with the period of the greatest authority of the Church, represents the greatest extension of the personal and real immunities; it is the legislation explained above theoretically in vigour; it has remained as a kind of ideal, never realized in practice. As early as the fifteenth century, ecclesiastical immunities had been curtailed more than once by temporal princes; the Council of Trent (Sess. XXV, c. 20, "De Ref."), after confirming the canon law concerning immunities, addressed a solemn warning to the secular powers, the emperor, kings, and princes; it recalled to them their obligation of defending the churches, clergy, and ecclesiastical property against all who attacked their "liberty, immunity, and jurisdiction". But the movement was too strong to be thus easily overcome; on the contrary, it increased, and the end of the eighteenth century saw in France the suppression not only of immunities but even of Church property. The example was followed sooner or later by other countries, and there resulted an almost complete extinction of immunities, as we have explained above.

Immunities were maintained longer in Italy, and especially in the Papal States, owing to the care of the popes and especially of the Congregation of Immunity. In the movement for a thorough ecclesiastical reform following the Council of Trent, the popes could not neglect immunities; Sixtus V had confided this matter to the cardinals forming the "Congregation of Bishops"; but shortly afterwards, Urban VIII, by the Bull "Inscrutabile" (22 June, 1626), established a special congregation, which he called "Congregatio Immunitatis". This congregation, composed like the others of a certain number of cardinals, one of whom was its Prefect, assisted by a secretary, a fiscal lawyer, two bishops charged with drawing up reports, and a staff of lower officials, was appointed to look after the defence and enforcement of immunities. It was kept busily occupied and gave many decisions; no official collection of these has been made, but the Abbot General of Cîteaux, Pierre André Ricci, published in 1708 a repertory of them, arranged alphabetically, "Synopsis, decreta et resolutiones Sac. Cong. Immunitatis super controversiis jurisdictionalibus complectens"; the work was re-edited with numerous additions by Mgr. Barbier de Montault, Paris, 1868. Although diminished, the work of this congregation continued till the invasion of Rome by the Italian troops in 1870; it was then joined to the Sacred Congregation of the Council and was suppressed in the recent reorganization of the Roman Curia by Pius X in 1908.

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