Section I. Preliminary Notes

I. The Notion of Clerics. Those who have been dedicated to the divine ministries by at least first tonsure are called clerics (can. 108, § 1). Besides, note:

1. Clerics are not all in the same grade, but among them there is a sacred hierarchy in which some are subordinated to others (can. 108, § 2). With these things considered, the sacred or ecclesiastical hierarchy can be defined: the body of clerics who, according to various grades, enjoy sacred power in the Church. It is distinguished into the hierarchy of Order and the hierarchy of jurisdiction, according as sacred power is concerned with the ministry of divine worship (for example, the dispensation of the sacraments, etc.) or with the governance of the faithful (cf. can. 948).

2. By divine institution the sacred hierarchy, by reason of order, consists of Bishops, presbyters, and ministers; by reason of jurisdiction, of the supreme pontificate and the subordinate episcopate; but by the institution of the Church other grades have also been added (can. 108, § 3).

3. Those who are enrolled in the ecclesiastical hierarchy are not chosen by the consent or calling of the people or of secular power; but in the grades of the power of order they are constituted by sacred ordination; in the supreme pontificate, by divine law itself, once the condition of legitimate election and acceptance of the same has been fulfilled; in the remaining grades of jurisdiction, by canonical mission (can. 109). This mission is called canonical because it is required precisely for having canonical, i.e. ecclesiastical, jurisdiction, just as civil mission is required for having civil jurisdiction. It is said: in the remaining grades of jurisdiction; hence, although the episcopate together with the papacy was instituted by Christ, individual Bishops nevertheless also need canonical mission on the part of the Roman Pontiff (cf. can. 329), not only so that territory may authoritatively be marked out for them and subjects assigned to them, as all concede, but also - according to the opinion today at least most common and certain - so that they may directly acquire their jurisdiction.

II. The Enrollment of Clerics in Some Diocese or Religion. Every cleric ought to be enrolled in some diocese or religion, so that wandering clerics are in no way admitted (can. 111, § 1).

1. Enrollment in some diocese. By reception of first tonsure a cleric is enrolled, or, as they say, incardinated, in the diocese for whose service he was promoted (can. 111, § 2). Moreover, in order that a cleric already enrolled in some diocese may be incardinated into another diocese, he must obtain: 1° from his own Ordinary letters of perpetual and absolute excardination, signed by the same; 2° from the Ordinary of the other diocese letters, likewise perpetual and absolute, of incardination, signed by the same (can. 112). Besides, there is excardination and incardination if the cleric has obtained a residential benefice from the Ordinary of the other diocese with the consent of his own Ordinary given in writing, or with permission granted by the same in writing to depart from the diocese in perpetuity (can. 114).

2. Enrollment in some religion. One professed with perpetual vows, whether solemn or simple, loses by the law itself the proper diocese which he had in the world (can. 585). If a religious constituted in sacred orders has lost his proper diocese through perpetual profession, and afterwards departs from the religion, he cannot exercise sacred orders outside the religion until he has found a Bishop benevolently receiving him, or the Apostolic See has otherwise provided. But if some Bishop has received such a religious, by that very fact he is incardinated in his diocese (can. 641).

III. The Rights of Clerics. Rights here are called those things which are founded in the very nature of the clerical state. Therefore:

1. Clerics alone can obtain ecclesiastical power, whether of order or of jurisdiction (can. 118).

2. All the faithful owe reverence to clerics, according to their diverse grades and offices, and they stain themselves with the delict of sacrilege if at any time they have inflicted a real injury on clerics (can. 119; cf. n. 614).

IV. The Privileges of Clerics. Privileges are those things which have been added to rights by positive law. They are: the privilege of the canon, the privilege of the forum, the privilege of exemption, and the privilege of competency.

1. The privilege of the canon is that by which a cleric is protected against every real or bodily injury by the penalties established against those who commit them. It is called the privilege of the canon because it was contained in the celebrated canon of Lateran Council II (1139).

2. The privilege of the forum is that by which a cleric is exempted from lay jurisdiction according to the norm of can. 120, soon to be cited. It is called the privilege of the forum, for forum (from fero or foris) according to the first imposition of the name signifies a public place to which goods for sale are brought; here, however, it chiefly signifies the place in which lawsuits and trials are carried on. Therefore, according to can. 120, clerics in all causes, whether contentious or criminal, must be summoned before an ecclesiastical judge, unless something else has been legitimately provided for particular places, or special permission has been obtained to summon them before a lay judge. If nevertheless they are summoned by one who had no prior permission, they can, by reason of necessity and to avoid greater evils, appear, but with notice having been given to the Superior from whom permission was not obtained. It is said:

a) In all causes; whether contentious or criminal, whether civil or ecclesiastical. Moreover, exemption from the jurisdiction of secular judges with respect to ecclesiastical causes is rather from native right than from privilege, even taken broadly; with respect to civil causes, exemption is from privilege. Nevertheless that privilege does not prevent clerics from generally being subject to civil laws; but if a cause is instituted, for example if there is question of punishing a transgression of civil law, the matter is to be referred to the ecclesiastical judge. Hence it is also said that clerics are subject to civil laws with respect to the directive part, but not with respect to the coercive part.

b) Must be summoned, i.e. cited as defendants, not as witnesses.

c) Unless something else has been legitimately provided for particular places. Thus, for example, in Austria, Bavaria, and Colombia, by concordats, the privilege of the forum has partly been derogated. Whether this privilege can also be derogated by way of custom, at least centenary custom, is disputed among canonists.

d) Or special permission has been obtained to summon them before a lay judge. Moreover, Cardinal Fathers, 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 affairs pertaining to their office, cannot be summoned before a lay judge without permission of the Apostolic See; others enjoying the privilege of the forum cannot be summoned without permission of the Ordinary of the place in which the cause is conducted. Yet the Ordinary should not deny this license without a just and grave cause, especially when the plaintiff is a layman, and most of all when he has fruitlessly given effort to settling the controversies between the parties (can. 120, § 2).

3. The privilege of exemption.¹ All clerics are immune from military service, from offices and public civil duties alien to the clerical state (can. 121). Duties and offices are understood: 1° those which are repugnant to the dignity of the clerical state, such as sordid duties; 2° those which can be composed with difficulty with the duties of the clerical state, such as offices for preserving public security, for keeping watches, for averting fires, and similar things.

4. The privilege of competency. It is the privilege by which a cleric burdened with debt and called into court by creditors cannot be deprived of those goods which are required for his honorable support; according to these words of can. 122: Clerics who are compelled to satisfy creditors are to have safe those things which, by the prudent judgment of the ecclesiastical judge, are necessary for their honorable support, while nevertheless their obligation of satisfying the creditors as soon as possible remains firm.

A cleric cannot renounce the privileges mentioned; but he loses them if he is reduced to the lay state,² or is punished with perpetual privation of the right of wearing ecclesiastical habit, according to the norm of can. 213, § 1 and can. 2304. But he recovers them if this penalty is remitted or he himself is again admitted among clerics (can. 123).

¹ Cf. Damen, Vrijdom der Geestelijken van krijgsdienst.

² Cf. scholion.