Title VII: On Privileges

Exempt persons, or persons privileged not to be bound to answer except before a specified judge, are sued before the ordinary by reason of a delict, contract, or thing, if these were committed, entered into, or situated in a non-exempt place, but not by reason of domicile. — § 1. In the case of a monastery privileged so that its monks cannot be interdicted, suspended, or excommunicated by anyone, the jurisdiction of ordinaries ceases over them with respect to those matters, unless those monks are sent to priorates subject to the ordinaries; for then, even though they are monks of both places, the ordinaries judge them also with respect to the aforesaid matters for as long as they remain there. This states the point.

Innocent IV, in the general Council of Lyon.

Wishing the liberty which the Apostolic See has granted to certain persons by privilege of exemption to be observed intact in such a way that others neither infringe it nor those persons themselves exceed its limits, by an irrefragable declaration we determine that, however much persons exempted in this way enjoy liberty, they can nevertheless rightly be sued before the ordinaries of places by reason of a delict, a contract, or the thing concerning which action is brought against them, and those ordinaries can exercise their jurisdiction over them with respect to this, as law requires. Do they therefore entirely lack the advantage of liberty in these matters? Certainly not: for they cannot in any way be sued concerning them before the ordinaries themselves, provided that the delict was committed, the contract entered into, or the thing in dispute situated in an exempt place; nor can they be sued where they have domicile if they commit a delict or enter a contract elsewhere, or if the thing itself is situated elsewhere. Nor, under pretext of their domiciles, do the diocesans of those places have any power to remit them there or enjoin upon them that they answer there if they are sued where they committed the delict or entered the contract, or where the thing itself is situated; nevertheless, other cases in which canonical statutes command them to be subject to the jurisdiction of bishops remain unaffected. And we decree the very same concerning those to whom it has been granted by apostolic privilege that they are not bound to answer complainants concerning themselves except under one specified judge.

§ 1. But over those to whom it has been granted by the Apostolic See that they cannot be interdicted, suspended, or excommunicated by anyone—as are very many religious, in whose privileges it is contained that no bishop or archbishop shall presume for any cause or in any place to interdict, suspend, or excommunicate the monks of their monasteries—the same ordinaries cannot anywhere exercise their jurisdiction at all with respect to those matters, unless perhaps those monks have been sent to priorates of their monasteries subject to the same ordinaries, either to conduct their government or to reside in them as the proper monks of those places. For then, although they can freely be recalled to those monasteries and are regarded as monks both of them and of their priorates, since it is not incongruous for someone to have a monastic place in both, while one monastery is known to be subject to or dependent upon the other, nevertheless, by reason of the same priorates, the said ordinaries may lawfully exercise their jurisdiction over them, even with respect to the aforesaid matters, for as long as they remain in them.

The Roman Curia has a studium generale and its privileges. This states the point. Johannes Andreae.

The same.

Since many persons flow from diverse parts of the world to the Apostolic See as though to a mother, we, directing paternal solicitude to their common advantage and advancement, as well as that of all others, so that a stay of this kind may be fruitful to them, have provided that henceforth a studium of divine and human law, namely canon and civil law, shall be governed and flourish there. Whence we will and establish that students in those schools at the same See shall enjoy entirely such privileges, liberties, and immunities as students enjoy in schools where a studium generale is governed, and shall receive their ecclesiastical revenues in full just as they do.

He states how the privilege which certain abbots have of blessing the people is to be understood, and upon whom abbots may confer the tonsure. Johannes Andreae.

Alexander IV.

Abbots whom the Apostolic See has distinguished by a special privilege in the imparting of a blessing over the people can, in churches which pertain to them by full right, when they celebrate divine offices in them, bestow a solemn blessing over the people after the solemnities of masses and the evening and morning praises. But elsewhere in public, or along roads, in cities, castles, and towns, they cannot give or impart a blessing to peoples and congregations unless this has been granted to them by express apostolic privilege. Nor shall it be lawful for them to confer the first clerical tonsure upon persons other than the lay brothers of their monasteries, those who have flocked to them, and those over whom they possess ecclesiastical and quasi-episcopal jurisdiction, unless this belongs to them by a full indult of the aforesaid See.

Exempt persons cannot construct oratories or chapels in non-exempt places without the license of the diocesans, nor in exempt places without the license of the Pope. Nor can exempt persons assume in themselves the personal causes of their free men, even if those men are their censuals. Johannes Andreae.

The same.

By authority of the Apostolic See, with the counsel of our brothers, we establish that exempt persons shall not presume to construct oratories or chapels in non-exempt places without the license of the diocesans of those places, nor celebrate or cause divine offices to be celebrated in places constructed in this manner, or during a time of interdict, except only in the cases expressed in law. If they presume such things, they shall be restrained from them by the ordinaries of those places; and if any conservators of the exempt persons have rendered sentences against those ordinaries on account of this, we revoke those sentences entirely. We prohibit, moreover, those exempt persons from daring to do this even in exempt places unless they have a special license or privilege of the Apostolic See concerning these things. The same exempt persons shall not in any way assume in their own name, either as plaintiffs or as defenders, the personal causes or lawsuits of their free men—namely, those which pertain only to the men themselves—even if the said men are their censuals, since this is by no means lawful for them.

A privilege of the Pope that someone cannot be excommunicated, suspended, or interdicted does not extend to sentences of ordinaries unless such a privilege was granted to kings, queens, or their children, or to a religious place or order. This states the point. Johannes Andreae.

Clement IV.

Lest some, trusting in apostolic indults, molest others in their right more confidently and alike contemn and elude the jurisdiction of ordinaries, with the counsel of our brothers we prohibit by perpetual edict all indulgences and privileges granted under whatsoever form of words to any individual ecclesiastical or secular persons, of whatever preeminence, dignity, condition, or status, providing that they cannot be interdicted or excommunicated by anyone, or that their lands or churches cannot be placed under ecclesiastical interdict, from being extended to sentences and processes of ordinaries. We except only those through which immunity of this kind is granted in this matter to kings and queens and their children, and also to any religious, not only by reason of persons but by reason of privileged orders or places.

Inferior prelates to whom the use of the miter is granted by privilege, if they are exempt, can use miters ornamented with gold embroidery, but not having plates or gems, in provincial councils and episcopal synods. And if they are not exempt, they shall use white and plain miters; in other places they shall use them as the indults permit.

The same.

So that the kindness of the Apostolic See—which has granted to certain abbots and other prelates to whom it does not belong by their own dignity that they may use the miter and other pontifical insignia, for the glory and honor of their churches—may providently prevent scandals from arising from this, yet in such a way that those privileged persons are not frustrated of the effect of their privileges and that the greater rank of dignities may appear from the greater rank and splendor of ornaments, with the counsel of our brothers we establish by the present decree that abbots and others to whom use of the miter has been granted by the same See may, if exempt, use in provincial councils and episcopal synods which some of them are bound to attend only miters ornamented with gold embroidery, but not having gold or silver plates or gems; but those not exempt shall use simple, white, and plain miters. In other places, however, exempt and non-exempt persons may use miters as the indults granted to them by the same See permit.

In the first part he shows what the law is when someone says that he is exempt by privilege alone. In the second, at the words “But if,” what the law is when he alleges prescription concerning this. In the third, at the words “But if such persons,” what the law is when he alleges both. Johannes Andreae.

Boniface VIII.

Since ecclesiastical persons, both religious and secular, presume many things which produce infamy for themselves and inflict injury upon others, evading the corrections and ordinances of ordinaries and declining their forum or judgment under pretext of an exemption or liberty which they assert themselves to possess, we, wishing to provide a salutary remedy concerning this, establish that those who assert themselves exempt through privileges or indulgences of the Apostolic See, when required by the ordinaries of places, shall be bound, when a just impediment has ceased, to show the privileges or indulgences of this kind with which they say they are fortified, and to exhibit them to be read in their entirety, to the ordinaries themselves in a suitable and secure place or to certain prudent men lacking every suspicion who have been appointed for this by the said ordinaries, within a competent term to be moderated according to the quality of the fact by the judgment of the ordinaries themselves or their delegates; and also to deliver a transcript of the articles concerning which there is controversy.

But if they deem that only canonical prescription is to be opposed in order to found their claim concerning liberty of this kind, they ought to prove such prescription to the same ordinaries or to prudent and unsuspected men delegated by them. But if such persons assert themselves fortified by privilege and prescription, they shall indeed exhibit the privilege itself, as is expressed above in the first article of this constitution. And if the privilege exhibited is not fully sufficient of itself to prove exemption or liberty of this kind, but is such that it at least furnishes cause for prescribing, they shall be bound to prove before the aforesaid persons a prescription of forty years. And while proof of the prescription is pending, although the claim of the ordinaries is founded upon the common law, nevertheless, because they prove the privilege which at least furnishes cause for prescribing, they shall not be disturbed in the possession of liberty or exemption which is not violent, clandestine, or granted by sufferance, and concerning which they have furnished proof before the same persons. But if, when they defend themselves by privilege alone, they have not exhibited a privilege sufficient of itself, or, when they allege prescription, at least one of such a kind as to furnish cause for canonical prescription, as was stated, then, since the claim of the ordinaries is founded upon the common law, those ordinaries may freely exercise their jurisdiction over them until they have furnished full proof concerning canonical prescription, as stated before.

Entrance into a church is interdicted to regular or secular persons, although exempt, who knowingly celebrate or cause divine offices to be celebrated in interdicted cities or places except according to the permission of law, or who publicly admit excommunicated or interdicted persons to divine offices, sacraments, or burial. This states the point. Johannes Andreae.

The same.

Aroused by the frequent complaints and querulous cries of bishops and other prelates, we have deemed it necessary to establish by the present decree that no secular or regular persons, however fortified by privileges of exemption or liberty of the Apostolic See, of whatever order, religious institute, status, or condition they may be, shall knowingly celebrate or cause divine offices to be celebrated in cities, castles, towns—except to the extent granted to them by law—or other places interdicted by ordinaries, delegated judges, or by law, or publicly admit excommunicated or interdicted persons to divine offices, ecclesiastical sacraments, or ecclesiastical burial. But those who presume to act contrary to this shall know that, besides the other penalties established by law, entrance into a church is interdicted to them until they have made competent satisfaction for a transgression of this kind according to the judgment of the person whose sentence they contemned.

First he establishes what is imported when a church is exempted; secondly, when its canons are exempted; thirdly, when its clerics are exempted. And he declares these things in order, speaking affirmatively and negatively in each of the parts, according to Johannes Andreae.

The same.

By an exemption granted to a church, the church itself and its monks or canons, and also its clerics, lay brothers, and persons perpetually offered to it, are understood to be exempt, but not the priest of the same church who has the care of parishioners with respect to those things which pertain to the same care, nor the parishioners themselves. But if the canons of a church are exempted, only the canons themselves, and not the church or its other clerics, are exempt. If, however, the clerics of any church are exempted, then both the canons and the other clerics are exempted, but not the church, unless something else is expressed in the privilege of exemption.

This decretal sets forth forms of privileges, some of which confer exemption and some do not. Johannes Andreae.

The same.

If the Pope, in some privilege or writing not made principally concerning the grant or sentence of exemption or even of liberty, relates that a church pertains to the right and property of the Roman Church, or uses similar words, the exemption of that church is not thereby proved unless its liberty is otherwise established. But if, in granting a privilege of exemption to a church or monastery, or in pronouncing sentence concerning its exemption when the business of that exemption was at issue, he asserts that the church itself is exempt, or that it belongs to the right of blessed Peter, pertains to the right and property of the Roman Church, or pertains specially, immediately, or even simply to the Roman Church, then through this such a church ought fully to be judged exempt. For since by the common law all churches spread throughout the world pertain to the Roman Church, if this is granted to a church or adjudged concerning it by sentence, its exemption is proved from this, so that the grant of a privilege which otherwise would bring nothing to the one to whom it is granted, and a sentence which otherwise would give no assistance to the church for which it is rendered, may confer a prerogative of special grace, since words ought to produce some effect.

And it is the same if the privilege contains—or the Pope himself expresses in the above-written manner—that the church is free, that it enjoys the liberty of the Roman Church, or that in this it enjoys a special prerogative; or if he says without qualification that it shall pay an annual census to the Roman Church as an indication of the liberty received; or if he exempts that church from the power of the ordinary; or if he says that the bishop shall not dare to place a cathedra there or to exercise any power of commanding or of making any ordinance, however slight. Similarly, if any persons are received as proper and special subjects, they are considered exempt. It is not so if they have been received as proper and special sons of the Roman Church, for such persons are not exempt on that account. But if it is simply said that a church shall pay an annual census to the Roman Church, the church ought not on this account to be called exempt. We say the same if liberty concerning certain matters is granted through a privilege and a clause concerning payment of an annual census follows—for example, if it is specially granted to some by the Apostolic See that they cannot be excommunicated, suspended, or interdicted by anyone other than the Pope or his legate, or if some other thing is granted, or if it is said that they have been assumed as special sons of the Roman Church, and it follows in the privilege that they shall pay an annual census to the Roman Church as an indication of the liberty received. For in these and similar cases, those privileged in specified articles are subject to the jurisdiction of the ordinaries with respect to other matters.

Although we have thus deemed that the diverse tenors of privileges by which churches and monasteries are exempted should be designated in order to cut away material for litigation, through this we do not will in any way to derogate from other modes of exemption, if they are found, or of other liberties, or from their effects.

Persons privileged to be able to celebrate divine offices behind closed doors during a time of interdict cannot admit other outsiders also. And if an individual person has been privileged concerning this, he admits his household members; it is otherwise with the household of a convent privileged in this manner. The person through whose fault the interdict is imposed does not enjoy this privilege. This states the point. Dominicus.

The same.

Although it has been granted to you that during a time of interdict, behind closed doors, with excommunicated and interdicted persons excluded, you may celebrate divine offices in a subdued voice, nevertheless you ought for no reason to receive anyone at them, even if they have come from elsewhere, unless they are privileged concerning this. When it is granted to an individual person that, in the aforesaid manner, he may celebrate or hear divine offices during a time of interdict, his domestic household members are lawfully admitted to hear with him and to celebrate divine office for him. But it is not to be judged thus concerning the household members of a convent or college. For they ought not to be admitted unless they have been privileged. Nor can he enjoy a grant of this kind through whose cause or fault, fraud or deceit, the sentence of interdict was pronounced, or who furnished counsel, aid, or favor toward perpetrating the delict on the occasion of which it was rendered.

Bishops can celebrate with a portable altar and cause celebration for themselves, provided that they do not violate an interdict. This states the point. Johannes Andreae.

The same.

Because bishops and their superiors must for diverse causes frequently absent themselves from their churches and dioceses, and cannot always conveniently approach churches to celebrate or hear mass in them—without which it does not become them to let any day pass without a reasonable cause—by the present constitution we grant them that they may have a portable altar, and celebrate and cause celebration upon it wherever it is permitted to them to celebrate or hear divine offices without transgression of an interdict.