Chapter II: On the Rights and Privileges of Clerics

— Clerics ought already to consider it no small honor that they have been enrolled among those who, by divine institution, are distinct from laymen. Cf. c. 107, already cited at n. 2.

Moreover, the state of clerics brings with it rights and privileges. Rights are goods or useful things which, from the very character of the clerical state, inviolably belong to clerics; but privileges are goods or useful things which, by the positive benefit of the legislator, have been added in order better to protect the dignity of the state.

I. Rights. 1. Therefore, because it is the state of those who preside, the clerical state makes clerics fit for legitimately participating in the power either of order or of ecclesiastical jurisdiction, and for obtaining ecclesiastical benefices and pensions (c. 118).

This state is required as a condition of validity when there is question of jurisdiction, benefices, and pensions, unless by apostolic good pleasure the defect has been healed.

2. Hence the person of clerics acquires a certain sanctity, which is so violated by every real injury that the author of the injury is guilty of sacrilege (c. 119).

But real injury embraces all exterior actions which by deeds, not words, are injurious against the body, liberty, or dignity. Cf. Wernz, Ius Decretalium, t. 2, n. 163.

3. And in a general way reverence is owed to clerics by the faithful, which is different according to the different grade and office.

II. Privileges. Common privileges are the privilege of the canon, by which the sanctity of the state is protected; the privilege of the forum; the privilege of immunity from services; the privilege or benefit of competence.

1. The privilege of the canon punishes with penalties those who are guilty of real injury toward clerics. It is called "of the canon" because of canon 15, Si quis, suadente diabolo, of Lateran Council II, 1139, in which it was contained. This canon afterwards became c. 29, C. XVII, q. 4.

Besides other penalties, whether latae or ferendae sententiae, he who has laid violent hands upon the person of the Roman Pontiff contracts excommunication most specially reserved to the Apostolic See, and is ipso facto to be avoided; he who has done so upon the person of a Cardinal, Legate of the Roman Pontiff, Patriarch, Archbishop, or Bishop, even titular, incurs excommunication latae sententiae reserved in a special manner to the Apostolic See; he who has done so upon the person of clerics or other religious of either sex is punished with excommunication latae sententiae reserved to his proper Ordinary (c. 2343).

2. By the privilege of the forum, clerics are exempted from lay jurisdiction, so that even in their temporal cause they cannot be convened, at least as defendants, before the tribunal of laymen, "unless for particular places something else has been legitimately provided" (c. 120), or unless the permission of the competent ecclesiastical Superior has been obtained.

Permission is reserved to the Holy See when there are to be convened Fathers Cardinals, Legates of the Apostolic See, bishops even titular, abbots or prelates nullius, supreme Superiors of religions of pontifical right, and major Officials of the Roman Curia on account of business pertaining to their office; others can be convened by permission of the Ordinary of the place in which the cause is conducted; and he is admonished not to refuse permission without a just and grave cause (c. 120, §2).

Those convened, nevertheless, can appear, the Superior "from whom permission had not been obtained" having been notified (c. 120, §3).

Derogation is made from this privilege by concordats, and also by custom, at least centenary custom. The Secretariat of State acknowledged this for Belgium, Germany, and Holland in the year 1911. Cf. Periodica, I, 190. Elsewhere also the Church is accustomed to be silent concerning this often violated privilege of the forum, and generally tries to obtain this, that without the permission of the Holy See a bishop, especially in a criminal cause, not be dragged before a lay judge.

Therefore we shall advise that due permissions be sought; but generally we shall not disturb the good faith of the parties or magistrates. Yet we shall opportunely admonish the faithful that the divine natural law always remains in force, which forbids scandals and diminutions of ecclesiastical authority to be permitted without a proportionate cause. Concerning this privilege, cf. Wernz, op. cit., V, n. 291 ff.

3. The privilege of immunity or exemption looks to this: that clerics be considered immune from services which the Church judges can scarcely be reconciled with their state. These services are chiefly military service and certain public offices, for example that they not be assumed as jurors in criminal causes.

It belongs to the Church, as a Society indirectly superior, to estimate what duties and civil offices are alien to the clerical state. Yet the Church by no means refuses to arrange the matter amicably with civil governments.

Historically, personal immunity was first sanctioned by Constantine the Great on October 31, 313 ¹.

Since, however, not a few civil laws boldly violate the rights of the Church, clerics, with the permission of their Ordinary, will be able voluntarily to undertake secular military service so that they may sooner become free (c. 141): sooner, that is, that they may serve for a shorter time, or be liberated earlier.

But on July 15, 1919, the Sacred Congregation of Religious declared that the decree Inter reliquas, January 1, 1911, concerning religious bound to military service, was still in force, and besides established certain things by way of corollary. A.A.S., XI, 321.

4. By the benefit of competence or of suitable support, a cleric who is not solvent is permitted to retain those things which, by the prudent judgment of an ecclesiastical judge, are necessary for his honest support (c. 122).

This benefit drew its origin from the way in which c. Odoardus, I, X, III, 23, was understood. Cf. Wernz, op. cit., II, 170.

Since, in present-day civil law, it has been made common to all debtors, it will not be denied to clerics, except that civil laws wish the matter to be determined by the decision of a civil judge.

¹ Its history in Roman law is narrated in Archiv f. k. Kirchenrecht, 37, p. 356 ff.

Loss of privileges. These privileges, granted on account of the decorum of the clerical state, cannot cease through renunciation by clerics (c. 72). Indeed clerics of themselves must use them; yet prudently: wherefore c. 120 positively indulges them, when summoned before a lay judge, that, in order to avoid greater evils, they may appear, the Superior from whom permission had to be obtained having been made aware.

But they are lost by a cleric who is reduced to the lay state, or is deprived in perpetuity of the right of wearing ecclesiastical habit. When the state or the right of wearing the habit has been restored, they are recovered (c. 123). And by the law itself minor clerics fall from the clerical state if they have entered marriage, or on their own authority, without a legitimate cause, have put aside ecclesiastical habit and tonsure, or have enrolled for military service (cc. 132, §2; 136, §3; 141, §2).

Therefore, by the clear disposition of the law, we are today dispensed from the solicitude of defining the conditions under which clerics can use these privileges. Cf., for example, d'Annibale, Summula, I, 100. The privileges belong to all who have not fallen from the clerical state or have not been legitimately stripped of clerical habit.

I. Rights belong inviolably to clerics from the very character of their state: fitness for participating in the power either of order or of ecclesiastical jurisdiction, and for obtaining ecclesiastical benefices and pensions; protection of sanctity; a title of reverence.

II. Privileges have been added by the positive benefit of the legislator for protecting the dignity of the state. They are the privilege of the canon, by which penalties, graver according to the more noble quality of clerics, are brought against those who, by deeds, are injurious against their body or dignity or liberty; the privilege of the forum, by which, even in a temporal cause, before a tribunal of laymen, they cannot be convened at least as defendants unless for particular places something else has been legitimately provided. Legitimate derogation is made by concordats; and also by custom, at least centenary. The privilege of immunity from services which are scarcely compatible with the dignity of clerics; the privilege of competence, by which a cleric who is not solvent is permitted to keep those things which are necessary for his honest support.

These privileges are not lost by renunciation, but by reduction to the lay state.