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Immunity, Ecclesiastical

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Immunities of the Clergy

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In ecclesiastical jurisprudence a distinction is made between ecclesiastical immunity (immnunitas ecclesiastica) and the immunity of the Church (inmunitas ecclesice). The latter is the right of refuge or asylum (q.v.), the former denotes the exemption of the Church from the general obligations of the community. The ministers of religion have at all times and in all countries enjoyed particular privileges and liberties. This was the case with the priests of pagan Rome, whose privileges were transferred to the Christian clergy by Constantine. Among these privileges we notice particularly exemption from taxes (census), from menial service (munera sordida), etc. To this was added also the privilege of separate spiritual jurisdiction. (See JURISDICTION, ECCLESIASTICAL). These immunities belonged to the members of the clergy, their wives, children, domestics, and to the goods of the Church, but did not extend to their private property, or to persons entering the clergy simply to free themselves from civil charges. In 532 Justinian added to these privileges that of guardianship, permitting presbyters, deacons, and subdeacons to act as guardians or trustees, but not extending the privilege to bishops or monks (Nov. 123, cap. 5; Anth. Presbyteros C. cit. 1, 3). The ancient Germans also granted great privileges to their priests. Julius Caesar considered them as the next class to the nobility, and said, "Magno (Druides) sunt apud eos honore" (De bello Gallico, lib. 6, cap. 13). "Druides a bello abesse consueverunt, neque tributa una cum reliquis pendunt, militiae vocationis omniumque rerum habent immunitatem" (ib. cap. 14). When Germany was Christianized, the clergy preserved the same privileges, besides those granted them by the Roman law, which was recognized as the standard (secundum legema Romanum ecclesia vivit [Lex Ribuaria, tit. 58, 1, etc.]). The stipulation of the third Council of Toledo in 589, can. 21 (c. 69, can. 12, qu. 2) that the auditors, bishops, and clergy should not be subject to compulsory services, was also granted afterwards (Capitulare a. 744, cap. 7; compare Benedict's Capitularien-sammlung, lib. 3, cap. 290). The protection which the Church granted to all who connected themselves with it soon became a source of great profit; it was known in the 6th century under the name of mitium, or mittium legitimum (Roth, Gesch. d. Benefcialwesens [Erlangen, 1850], p. 163 sq.).

To this right of protection of the Church was subsequently added that of collecting and appropriating to its own use the taxes which would otherwise have been levied on its proteges by the fiscal officers: this right was called emunitas, and was conferred by the kings. These fiscal taxes included fines, etc., of which the holders of immunities became the recipients. In after times the Church obtained also the right of assembling armies, which was called territorium (see Formuloe Andegavenses, 4, 8, 21, 22, etc.), and which laid the foundation of the subsequent ecclesiastical principalities (see Rettberg, Kirchengeschichte Deutchlands, vol. 2, 97; Waitz, Deutsche Veifassungsgeschichte, 2, 290 sq., 570 sq.). These immunities were further specified in the laws of the French kingdom (see Capitula synodi Vernensis a. 755, c. 19, 28; Cap. Motens. a 756, c. 8, etc.), as were also those of the individual members of the clergy, and of the Church properties. St. Louis decided that each church should have a piece of land (mansus) free from all taxations, etc. (Capit. a. 816, c. 10, 25; can. 23, qu. 8). Such properties subject to taxes as did come into the hands of the Church did not, however, become free on that account, unless by an especial favor of the king (Capit. 3, Caroli ill. a. 812, c. 11; Capit. 4, Ludov. a. 819, c. 2). The immunities were, however, greatly abused, and lost their importance, notwithstanding the decisions of the Council of Trent, Sess. 25:cap. 20 ("Ecclesise et ecclesiarum personarum immunitatem Dei ordinatione et canonicis sanctionibus constitutam esse"), and the bull In caena Domini (q.v.). To what extent the properties of the clergy and of the Church are now free has been settled by subsequent decrees. As a rule, the clergy are free from the general taxes, and from the personal duties of private citizens. The candidates for priests' orders and students in theology are usually exempt from military service. The churches and their property enjoy generally the same privileges as the government buildings and state property. Personal immunity from taxes, military services, etc., is regularly granted to the clergy, as also to teachers, in Protestant as well as in Roman Catholic countries. See Herzog, Real-Encyklopadie, 6, 642; Gosselin, Power of the Pope (see Index); Augusti, Handbuch d. christ. Archa l. 1, 303 sq.