Section — Marc, Institutiones Morales
§ 3. On Regulars and Clerics
An inferior, even if he is a legislator, can do nothing against the law of a Superior. From this axiom, which presides over the whole matter, the following things follow.
- PRINCIPLES. I. Regulars exempt from episcopal jurisdiction are not held to the laws of the Bishop, even if they dwell in his territory. The reason is, because through exemption, as soon as they have fulfilled the required conditions, they are no longer subject to his jurisdiction.
Except the cases excepted by right itself, for example, concerning censures and interdicts issued by the Bishop, or concerning feast days appointed by him for them, as was decreed by Trent (Sess. 25, c. 12). See particular cases n. 2189. Cf. St. Alph., de Privil., n. 72; ed. G., I, p. 224.
- II. Clerics are held to civil laws, insofar as these laws are not opposed to ecclesiastical immunity still in force. The reason for the exception is, because laws which violate immunities are unjust, since they go beyond the power of the civil legislator (cf. n. 149, 2.).
But clerics are bound to the other laws as to their directive force, because they too are members of the political community. Nor indeed, as to these same laws, can the civil legislator exercise coercive force upon clerics, because by this exercise also ecclesiastical immunity would be violated.
Concerning the immunity of the Supreme Pontiff from civil jurisdiction, see what Lehmkuhl has, I, n. 231. The saying of Leo XIII is known, when he was Bishop of Perugia: "In the first centuries," he says, "Pontiffs were subjects as to fact, not as to right." Cf. pastoral letters concerning the temporal principate of the Roman Pontiff.
- It was said 1.: Insofar as they are not opposed to ecclesiastical immunity. Now this immunity is threefold: personal, local, and real.
Personal immunity comprehends the exemption of clerics: a) from the lay forum, in both civil and criminal causes; b) from those burdens which are considered vile or sordid, such as the repair of roads and bridges; c) from military service, from the reception of soldiers, and other prestations by reason of military service; d) from tutelage and curatorship, and generally from those things which either do not befit the holiness of the clerical state, or cannot be composed with the offices annexed to the same (cf. n. 2224 ff.).
Local immunity consists chiefly in two things: a) in the prohibition lest profane acts be carried out in sacred places, especially such as are more gravely repugnant to their holiness; b) in the right of asylum, by which it is provided that those fleeing to sacred places not be drawn out from them, except under certain conditions (cf. n. 582 and n. 1332).
Real immunity is the exemption of goods, both of the Church and of ecclesiastics, from taxes and burdens imposed by secular power. How far this extends, see among the canonists.
It was said 2.: Insofar as they are not opposed to ecclesiastical immunity STILL IN FORCE. For the Church can renounce the exercise of her right, either expressly, for example, through a Concordat, or tacitly, as regards this or that immunity, for the good of peace. Wherefore the Concordats of the Holy See with various kingdoms are to be inspected. But tacit renunciation is not easily to be presumed; because the things on which it is presumed to rest are commonly not done spontaneously, but unwillingly (Lessius, de Just., l. 2, c. 33, dub. 3).
- IT IS ASKED. How ought clerics, or even laymen, conduct themselves, lest they seem to wound the RIGHT OF IMMUNITY, when laws which stand against the same are proposed to them as to be observed?
Resp. I. IN GENERAL: 1. Against laws of this kind one must protest, whenever, if protestation were omitted, scandal would have to be feared; 2. One must yield to force in such a way that open acts of violence are not provoked, which serve only to multiply injuries to be inflicted on the Church.
II. IN PARTICULAR: 1. A pastor, or inferior cleric, likewise a civil official, should have recourse to the Bishop, unless the matter concerns a case in which either there is danger in delay, or a contrary custom has grown up. 2. The Bishop "should believe that he will do abundantly enough for his office" (says Benedict XIV, de Syn., l. 9, c. 9, n. 12), "if he takes care lest the secular prince ever arrogate to himself the right of sacred things, that is, lest ... he mix himself in causes ... merely ... spiritual and ecclesiastical"; likewise, lest the lay judge also invade that part of immunity which has thus far remained untouched.