The Rights and Privileges of Clerics

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.

What are the privileges of clerics and churches? - 1. The privilege of forum, by which they are exempted from lay magistrates in civil and criminal matters. C. Nullus 2 de For. comp. This privilege belongs to clerics constituted in sacred orders, beneficiaries, and others, whether regular or secular, if nevertheless these latter, i.e., simple clerics, "wear the clerical habit and tonsure, serve some Church by command of the Bishop, or are engaged in some school or University by license of the Bishop, as on the way to receiving major orders." Trent, s. 23, c. 6 de R.; s. 25, c. 20 de R. Wherefore ecclesiastics enjoy exemption concerning their persons, and cannot be judged and punished by a lay court. They also enjoy the privilege of exemption from military service and other civil offices which are by no means fitting for a cleric. Pr. 32, Syll. - They likewise have exemption, says St. Alphonsus, 20, as regards their own goods, both ecclesiastical and acquired in whatever other way; whence in respect of these they are not held to pay any tax. - But various Concordats and legitimate customs must be attended to. Indeed, as regards taxes to be paid, these are paid everywhere; nor is any protest had against them. Wherefore this privilege at least de facto is not in force. - Schmalz., l. 2, t. 2, n. 80 ff.; Bened. XIV, de Syn., l. 12, c. 6, n. 5; L. 18 ff.; A. S. S., vol. 2, p. 128, 431, 584. Judges compelling laymen to drag ecclesiastical persons to their tribunal incur excommunication reserved in a special way to the Supreme Pontiff. C. Apostolicae Sedis. Cf. vol. 2, n. 1170.

2. The privilege of C. Odoardus 3 de Solut., namely that a cleric debtor not be condemned beyond that which he can give, and therefore with sustenance left to him, if because of poverty he cannot pay his debts, until he has come to a richer fortune. E. M.

3. The privilege of canon, namely of the Lateran Council, A.D. 1139, under Innocent II, by which those who strike clerics incur by the fact itself excommunication reserved to the Roman Pontiff, C. of Pius IX, Apostolicae Sedis de Censuris. And notorious strikers of clerics, so that the fact cannot be hidden by any tergiversation, nor excused by any suffrage, are excommunicates to be avoided. Extravag. of Martin V, Ad evitanda. From these privileges are despoiled clerics who have been really degraded; jesters, goliards, or buffoons; likewise those exercising the base trade of executioners, butchers, or taverners; married men not wearing clerical habit and tonsure, or, if unmarried, falling into the manner of laymen; if, having been admonished three times, they have not come to their senses within a suitable term, C. Clerici un. de Vit. et hon. cl. in 6; Clem. Dioecesanis 1 de Vit. et hon. cleric.; clerics involving themselves in tyranny or enormity, having laid aside the clerical habit, C. Perpendimus 23 de Sent. excomm.; bigamous clerics, who have taken two legitimate wives or a widow, C. Altercationis un. de Dig. in 6; C. Clerici de Cler. coniugat. in 6: cf. Trent, s. 23, c. 6 de R.; Schmalz., l. 5, t. 39, n. 218; clerics constituted in minor orders who lay aside the clerical habit, S. C. Imm., 25 Sept. 1860, to the Ordinaries of the Pontifical Domain; clerics ordained to minor orders, when the See is vacant, within a year from the day of vacancy, unless they have been constrained by occasion of an ecclesiastical benefice received or to be received. Trent, s. 7, c. 10 de R. L. 24; l. 6, n. 827; E. M.

4. To churches, public Oratories, the Episcopal Palace, Houses of Regulars, and Hospitals in which there is a public Chapel, immunity belongs as regards the asylum of delinquents, excepting the cases comprehended in the Bulls of Gregory XIV, Cum alias, and Benedict XIV, Ex quo divina. All delinquents, provided they are Christians, although heretics, or interdicted, or enclosed in prison, who, having broken prisons, have fled to the aforesaid sacred places, enjoy this immunity, except however the cases excepted in law. Public robbers, ravagers of fields, homicides, heretics and rebels against the person of the Prince, those falsifying coins, etc., are excepted. But just as ecclesiastical superiors can extract their own subjects from a Church, so also, if need be, they can grant the same license of extracting to the secular court. Here also various Concordats and various customs of places must be attended to. L. 25 ff.; Schmalzgr., l. 3, t. 49, n. 88 ff.; E. M.

260 bis. What are the privileges of Cardinals? - They are the following: 1. Of hearing confessions everywhere on earth, even of religious of both sexes, and of absolving from all sins and censures, except only censures reserved in the most special manner to the Apostolic See, and those which are annexed to the revelation of the secret of the Holy Office. 2. Of choosing for themselves and their familiars a Priest for receiving confessions, who, if he lacks jurisdiction, obtains it by the law itself, even as regards sins and censures from which the same Cardinals can absolve. 3. Of celebrating, or of permitting others to celebrate before them, Mass on Thursday of Holy Week and three Masses on the night of the Nativity of the Lord. 5. Of celebrating Mass in any private chapel without prejudice to one using an indult. 5. Of enjoying a personal privileged altar daily; likewise a portable altar, in any decent place, according to their prudent judgment, even at sea, with due cautions observed. 6. Of gaining in their own chapels indulgences for the acquisition of which the visitation of some church or public shrine of the city or place in which the Cardinals are actually staying is prescribed; their familiars also can enjoy this privilege. 7. Of blessing everywhere, by the sign of the cross alone, with all indulgences customarily granted by the Holy See, rosaries and other prayer chaplets, crosses, medals, statues, scapulars approved by the Apostolic See, and of imposing these, without the burden of inscription. 8. Under one blessing, of erecting in churches and even private oratories in which Mass can be celebrated, and in other pious places, Stations of the Way of the Cross with all indulgences which have been imparted to those performing an exercise of this sort; and also of blessing for the faithful, who by reason of infirmity or another legitimate impediment cannot visit the sacred Stations of the Way of the Cross, images of the Crucified with the application of all indulgences annexed by the Apostolic See to the devout exercise of the same Way of the Cross.

9. Of wearing, in the manner of Bishops, a cross before the breast even above the mozzetta, and of using mitre and pastoral staff. 10. Of blessing the people everywhere in the manner of Bishops, but in the City only in churches, pious places, and assemblies of the faithful. 11. Of performing pontificals with throne and baldachin in all churches, the Ordinary having been forewarned if the church is a cathedral; but in the City they do not have the right of throne except in the church of their title. 12. Of enjoying the honors customarily paid to local Ordinaries wherever they betake themselves. 13. Of preceding all Prelates, even Patriarchs, indeed the Pontifical Legates themselves, unless the Legate is a Cardinal residing in his own territory; but a Cardinal Legate a latere precedes all others. 14. Of granting an indulgence of two hundred days in places or institutes and for persons of their jurisdiction or protection; likewise in other places, but to be gained only by those present, each time. 15. Of performing consecrations and blessings of churches, altars, sacred furnishings, abbots, or other similar things, except the consecration of sacred oils, everywhere, with those things observed which must be observed. From the Audience of His Holiness, on the 20th day of December, A.D. 1911, Our Most Holy Lord Pope Pius X graciously deigned to grant that the Cardinals of the Holy Roman Church may use the privileges which precede, even before the promulgation of the Code. - PETER Cardinal GASPARRI.

123. • Clerics enjoy certain privileges from Canon Law and from Roman Civil Law, indeed according to several from divine law, namely the privilege of immunity, lest they be punished by a lay court, and of exemption from the lay forum as to their own goods, both ecclesiastical and patrimonial.

But these privileges and most other ones, in many places, as also in France, are no longer acknowledged by the civil power ¹. Nevertheless there remains everywhere the privilege which is called of the Canon, by reason of which they incur excommunication who unjustly lay hands upon Clerics, as is established from the Second Lateran Council, in which it is said: "If anyone, at the instigation of the devil, lays violent hands on a Cleric or Monk, let him lie under the bond of anathema."

¹ ** This namely is the beginning, or rather the consequence, of apostasy from the Christian Religion. For the power which holds any Religion whatsoever in the same place has surely consummated apostasy from the Christian Religion. There you find Christian men; but you do not have a Christian kingdom or empire.

This privilege is enjoyed by 1º all Religious, even novices; 2º all Clerics, even those endowed only with simple tonsure; 3º indeed all Nuns and all religious persons living under a rule in Community, and also tertiaries of each sex wearing the habit of religious Orders and living in Community. - St. Ligorius, Bk. 1, Appendix II. - Hom. Apost., tr. 22, ch. 2.

124. • The privileges of Bishops regard 1º censures and irregularities; 2º impediments of matrimony; 3º vows and oaths; 4º other special cases, as may be seen apud St. Ligorius, Bk. 1, at the end of the Appendix on privileges, and in Hom. apost., tr. 20, ch. 3.

I. Concerning censures and irregularities.

1º They can absolve subjects from any hidden papal cases whatsoever, at least those reserved before Trent ², with the cases of the Bull Coenae excepted.

² Whether Bishops can absolve from cases reserved after Trent, if they are hidden, was not the one opinion of the Doctors. For the affirmative opinion stood Bonacina, Mazzuchellus, Peregrinus, Bossius, Gavantus, and Suarez alleged by Diana (tom. 3, tr. 3, res. 27, n. 2); to whom St. Alphonsus (Bk. 6, n. 594) adds Sanchez, Sorbus, Delbene, Renzi, Beia, Mazzotta, and Diana himself, who brings forward these reasons (l.c.): "This opinion is proved, because although the Council uses a word of past time, nevertheless it is extended also to future things because of the nature of law, whose property is to comprehend future things, as is had in the final chapter, De Constit., and the Doctors there. And it is confirmed from law Ariani, C. De haereticis, where it is had that the law is always in fresh observance and always speaks. But a general Council has the force of law, both because the Council grants to Bishops the said faculty generally, not distinguishing between past and future reservations; therefore it must be understood generally (law Pretio, ff. de publ. in rem action., and ch. Solitae, § final, de maior. et obed.); and because the faculty of absolving which is given in jubilees extends to future sins; and because the Council in the said decree places a general rule concerning pontifical Reservations, namely that they are to be understood of public crimes, but not of hidden ones, with the limitation placed in the same decree; and finally because in reserved cases and in cases to be reserved there is the same reason of absolution, if they are hidden, and therefore in each one there ought to be the same disposition of law. For why

To these reasons there is added an argument taken from the Constitution of Sixtus V, Effraenatam, 29 Oct. 1588, against those procuring abortion. For while he reserved to himself both absolution from the sin and censure, and dispensation from irregularity as to clerics who perchance were accomplices in this crime, he judged that the privilege granted to Bishops by the Synod of Trent, that they can absolve from hidden papal cases, had to be expressly derogated. But there would have been no need to derogate this privilege if the privilege did not extend itself to cases reserved after the Synod of Trent. Therefore.

And St. Alphonsus indeed (l.c.) grants that these things are affirmed very probably; nevertheless he judges that the response is not solid enough which the aforesaid Doctors return to those objecting the Declaration of Gregory XIII, when they answer that it is not authentically established concerning it. But on the contrary St. Alphonsus opposes the authority of Fagnani, who (In C. Dilectus De Tempor. Ordin., nn. 30-33), while generally establishing the thesis that Bishops cannot absolve from hidden cases reserved by a new Constitution after the Council of Trent, adds that the Sacred Congregation so judged. Indeed this thesis of Fagnani and the alleged Declaration would otherwise overthrow also the opinion of St. Alphonsus, which we shall set forth below.

For the rest it seems plainly to be said that the reasons brought forward by Fagnani for that thesis are very lame. And surely, first, he argues from the fact that today a Bishop cannot absolve from heresy and from the other cases reserved in the Bull Coenae, although they are hidden. But from these things one argues wrongly to other cases. For the faculty of absolving from cases, even hidden ones, reserved in the Bull Coenae, according to the opinion of the Doctors, was taken away from Bishops by force of the derogatory clause concerning the decrees of any Council whatsoever, which, according to Benedict XIV (De Syn. Dioec., bk. IX, ch. 4, n. 8), after Card. De Lugo (De Fid., disp. 23, n. 48), began to be appended to the same Bull under Gregory XIII. But this clause is by no means found in other Constitutions which reserve some case to the Supreme Pontiff.

Fagnani next argues from the response given to the Archbishop of Florence under Gregory XIII. For when the Archbishop of Florence had doubted (I recount the matter in the words of the same Fagnani) whether by force of ch. 6, sess. 24, he could absolve a nun who secretly and for an evil end had broken enclosure, notwithstanding the Bull of Pius V, which seems to have place in a public case, there was a divergence in opinions. For out of ten Cardinals, three judged that the Bull was to be understood also in hidden cases, because its words are general, and only the case in the article of death is excepted, etc.; and because it had already been declared that the Bull Coenae Domini, which prohibits absolution by others, has place even in hidden cases; and because, since the Bull was drawn up after the Council, it is judged to have derogated the Council. Four judged that that Bull did not have place in hidden cases. But the remaining three said that the matter should be brought before the Most Holy One; who declared that the Bull of Pius V has place even in hidden cases.... Hence afterwards the Sacred Congregation, having been generally consulted, whether, if a nun of some monastery subject to the jurisdiction of Regulars secretly committed an offense in the matter of enclosure, she could in the forum of conscience be absolved by force of the same Decree by the Bishop, to whom, as Delegate, authority in those things which pertain to enclosure was attributed by the Decree ch. 5, sess. 25, De Regularibus, with the aforesaid Bull of Pius V standing, responded: SHE CANNOT. Thus Fagnani. But this argument too labors under the same defect as the preceding one. For 1º the Declaration of Gregory XIII affects only the Constitution of St. Pius V concerning the enclosure of nuns. 2º The response of the Sacred Congregation, which is added, regards only the case of violated enclosure. 3º Indeed another reason for this negative response was available; for the power given to the Bishop as Delegate of the Apostolic See concerning the enclosure of exempt nuns attributes to him no jurisdiction over the exempt nuns themselves (see St. Alphonsus, bk. 6, n. 602, q. VII). Indeed this can seem the stronger reason why the faculty was denied. For otherwise, since nuns are reckoned among persons impeded from going to the City, and according to the common opinion one thus impeded is not held to seek absolution by letters (see St. Alphonsus, bk. 7, n. 89), by common law the faculty of absolving would be made to the Bishop, unless the exempt nun, removed from the jurisdiction of the Bishop, had another Ordinary. Therefore the reasons of Fagnani conclude nothing concerning the general question.

St. Alphonsus (bk. 6, n. 504, at the end), after mentioning from Fagnani the history of the aforesaid Declaration, judged that that Declaration was indeed not to be extended to all Constitutions, but only to those which are fortified with the same clauses; in which matter, as is plain, he departs from Fagnani. Thus he says: It must be noted with the same Fagnani (In C. Quoniam De Constit., nn. 29-30), that for the cases contained in two Bulls, namely in the Bull Coenae and in this aforesaid one of St. Pius V, derogation was made from the faculty granted by Trent to Bishops in the said ch. Liceat, because of the derogatory clauses, namely in the first: "Notwithstanding the decrees of any Council"; and in this second: "Unless in the article of death." Hence we say that any Bull whatsoever, where the aforesaid clauses are present, takes away from Bishops the faculty of absolving hidden cases reserved to the Pope; but not other Bulls, in which no derogatory clause is present, as Diana, p. 7, tr. 2, res. 22.

But this theory ought to be ascribed neither to Diana nor to Fagnani. Not to Diana, since he (l.c.) indeed excepts if in the new Constitution there is a clause sufficiently derogating this decree of the Council; but nowhere does he say that a clause of this sort is contained in the words, "Unless in the article of death." Not to Fagnani, who (in the cited ch. Dilectus) extends his doctrine to any reservations whatever later than Trent; but elsewhere (in the cited ch. Quoniam) merely says that the Sacred Congregation declared: from the Bull Coenae the faculty attributed to Bishops by the decree of the Council (ch. 6, sess. 24) was taken away, and similarly from the Bull of Pius V the faculty belonging to Bishops (from the same ch. Liceat) of absolving nuns secretly offending in the matter of enclosure was removed. But concerning the clauses of the same Bull of St. Pius V he has nothing at all. Therefore what St. Alphonsus adds from his own opinion, that this is to be understood of any Constitution having the clause, "Unless in the article of death," this indeed, as we saw above, was said by three Cardinals in the Congregation, with reasons brought forward which do not seem to be of great weight; but that there is any value in this opinion of theirs no one has defined, nor is it in any way established that Gregory XIII had this before his eyes in his Declaration. Wherefore that extension to other Constitutions, viewed according to the principle on which it rests, does not seem sufficiently firm.

Finally, of lighter weight are the things which Cajetan Giraldi has concerning the Decree or Declaration mentioned by Fagnani, both in the Exposit. Iuris Pontif. (part 2, sect. 152), and in the Notes to Thesaurus' work De Poenis Ecclesiasticis (part 1, ch. 22). For thus he writes concerning this matter: Since it is not indicated by Fagnani in what year this decree, first cited by him, was issued, lest its issuance be called into doubt, after the Registers of the Sacred Congregation of the Council had been diligently turned over by me, I found that it had been issued in the month of January 1589 in the Response to Postulate XII, which among other things Gaspar Visconti, Archbishop of Milan, made to the same Congregation on the occasion of the visitation to the sacred thresholds. For when the said postulate XII expressed in the Italian idiom what, translated into Latin, sounds thus: "Because it often happens that censures reserved to the Apostolic See are incurred by contravening Papal Constitutions issued after the Council of Trent, the Archbishop desires the faculty of absolving the contraveners, who sometimes remain bound by censures for a longer time, since they do not have the means of obtaining absolution from the Roman Curia, especially concerning the enclosure of nuns and of male Regulars," as is found in bk. 5 of the Decrees, p. 239, the Sacred Congregation abstained from the concession of the Postulate, but only tacitly confirmed what the Archbishop himself thought concerning this faculty by these precise words, in the month of January 1589, as they are found in the cited bk. 5, p. 240: "Reservations of cases newly made after the Council are not comprehended in ch. 6, sess. 24, De Reform., and especially concerning the enclosure of nuns." Gallemart reports that this declaration, at this same chapter, was confirmed by Gregory XIII. From these things it is plain what the sense of the Bishops was, soon, as it were, after the publication of Trent, concerning the faculty attributed to them in the cited ch. 6.

I said that these things are of lighter weight; for who, I ask, would admit this response, such as it is, as the first decree of the Sacred Congregation on this matter, which Gregory XIII then confirmed, if indeed the mere denial of a requested faculty is worthy of the name of a response, when that Postulate of the Archbishop of Milan is said to have been offered in the month of January in the year 1589, while Gregory had already departed from life four years before? And then, what does this TACIT RESPONSE, which Giraldi fashions for himself, have in common with the Decree by which the Sacred Congregation, according to Fagnani, EXPRESSLY responded that thing, namely, SHE CANNOT? Indeed, what does the question concerning hidden cases, about which Fagnani speaks, have in common with the Postulate of the Archbishop of Milan, in which a faculty of absolving is sought without any distinction between hidden and non-hidden cases? Therefore the whole force of the argument will finally reside in this, that in the supplicatory petition that opinion of the petitioner is found expressed. But ought the private opinion of the Bishop petitioning to be confused with the Decree of the Sacred Congregation, which responds nothing about that very opinion? Surely if this new canon is established, and if the opinions which the petitioner expressed in a supplicatory petition must be held as so many Decrees of the Sacred Congregation, we shall now say that this too has been defined by the Sacred Congregation: that a Bishop cannot absolve from papal cases those who are detained by a legitimate impediment from approaching the Pontiff for absolution from papal cases! For in the same petition the faculty is sought of absolving those who otherwise remain (these are the words of the Postulate) bound by censures for a longer time, since they do not have the means of obtaining absolution from the Roman Curia; and nevertheless the Sacred Congregation did not judge that assent should be given to that petition, but denied the faculty of absolving them. Therefore let us conclude that Giraldi's great labor in searching the Registers of the Sacred Congregation not only contributed nothing to proving the authenticity of the Declaration about which the question is, but on the contrary, since he did not find anything better in the same Registers, although most diligently turned over, it rather has deservedly cast the gravest suspicion that Prosper Fagnani, who dictated his work while blind, slipped in memory, and that this Declaration in fact never existed.

But neither do those things completely settle the controversy which are reported from the Cremonensis of 4 Dec. 1632 in another Severina of 28 May 1796, where the Secretary narrates these things: "Adhering (the Sacred Congregation) to declarations made at other times, it rescripted that Bishops by force of ch. 6, sess. 24, De Reform., cannot absolve or dispense in the case of heresy, nor in other cases reserved to the Apostolic See by a new law after the Council. But in these cases, in which such a faculty has not been taken away from Bishops, it is indeed transferred to the Capitular Vicar," etc. And surely here it is not sufficiently apparent whether that new law must be taken for one which, in the accustomed manner, reserves absolution from sin to the Apostolic See, or rather must be taken for one which only places an exception upon the faculty conceded to Bishops by that ch. 6 concerning hidden cases, of which sort are held to be the Constitution of Pius V as to the enclosure of nuns, and that of Gregory XIII concerning the cases of the Bull Coenae. Now unless this is certainly defined, nothing in fact can be concluded from these things. For the rest, if the consequences are inspected, surely you would say that that reservation must be taken in this latter sense. For it follows: "But in these cases in which SUCH A FACULTY HAS NOT BEEN TAKEN AWAY FROM BISHOPS," etc. Therefore the context requires that the preceding words be understood of a new law by which such a power has been taken away. But such a power is no other than that which is conceded to Bishops by ch. 6 concerning hidden cases. Therefore the new law is here to be understood as one by which the Pontiff after Trent has placed an exception or limitation upon the faculty of Bishops concerning hidden cases, not indeed as one by which he has generally reserved some case to the Apostolic See.

And these things indeed have been said concerning the state of the controversy, as it has hitherto been possible to judge from the reasons which are customarily brought forward by each of the dissenting parties. For that the Apostolic See was able to revoke the faculties conceded to Bishops by ch. Liceat, as in fact was done, for example, as to the cases contained in the Bull Coenae, or was able so to circumscribe them that, for example, they would not extend themselves to reservations later than Trent, no one ought or can doubt.

For the rest, after the Constitution Apostolicae Sedis issued by our Most Holy Lord Pope Pius IX on 12 Oct. 1869, there is now no doubt that a controversy of this sort must be held as defined. "Nevertheless" (says the Supreme Pontiff) "we will that the faculty of absolving conceded by the Synod of Trent to Bishops, sess. 24, ch. 6, De Reform., remain firm in any censures whatsoever reserved to the Apostolic See by this Our Constitution, with only those excepted which we have declared reserved in a special manner to the same Apostolic See."

Therefore the difference between the old Law and the new resides in this: that in the former the cases contained in the Bull Coenae and the censures issued against violators of the enclosure of Nuns were excepted; but in the more recent one, only the cases reserved in a special manner to the Apostolic See are excepted. These are fourteen, to which must be added 1º the interdict against universities, Colleges, and Chapters appealing from the ordinations or mandates of the Roman Pontiff existing at the time to a future universal Council; 2º from the Declarations of the Holy Office of the Inquisition, 17 June 1866 and 4 April 1871, the case of a person of whatever sex falsely denouncing a Priest for the crime of solicitation in Confession.

would the authority of Bishops be lesser in new reservations than in old ones?

2º They can dispense from all irregularities and absolve from all suspensions on account of a hidden offense, excepting irregularity from voluntary homicide.

3º In irregularities also doubtful from defect. (Probably.)

4º In non-hidden irregularities from defect of birth for minor Orders and simple benefices. - Council of Trent, sess. 24, ch. Liceat. - See St. Ligorius, bk. 4, Appendix on privileges, n. 49 and following.

125. • II. Concerning impediments of matrimony, Bishops can dispense:

1º In impeding impediments, except the vow of perpetual chastity, the vow of entering Religion, espousals, and the impediment of disparity of worship between Catholics and heretics.

2º In supervening impediments, once marriage has been contracted, in order to asking for the debt, for example, if they contracted affinity because either one had carnal intercourse with the other's blood relatives; or if one vowed chastity. Indeed the Bishop can also dispense the spouse from a vow of perpetual chastity which he or she emitted before marriage, so that he or she may exercise matrimonial rights ³.

³ ** Nevertheless the Confessor ought to know that in these circumstances, which sometimes do not permit delay, or do not leave prompt access to the Bishop, another way is present by which provision is made for the necessity of the spouses, namely that one spouse indirectly irritates the vow of the other, that is, suspends its obligation. See vol. 1, n. 330.

3º In doubtful diriment impediments ⁴. - St. Ligorius, Appendix, n. 55, where he says that this opinion is very common.

⁴ ** Yet someone will be able to note that, where the impediment is doubtful, there is no need that a dispensation be sought, as will be said in the treatise on matrimony.

4º Per accidens in certain diriment impediments, both before and after the contracted marriage, when recourse to the Pope is very difficult, or when there is danger in delay ⁵, or where there is imminent danger of scandal, infamy, incontinence, etc. - St. Ligorius, ibid., n. 56 and following.

⁵ ** St. Alphonsus, as we shall see in the Treatise on Matrimony, judges it probable that the impediment ceases when, some grave cause urging, access is not open even to the Bishop.

5º In publications of the Banns. - St. Ligorius, ibid. - See the things to be said in the Treatise on Matrimony, n. 739.

III. Concerning vows and oaths, Bishops can dispense:

1º In all simple private vows, excepting the five reserved to the Pope, namely of perpetual chastity, of Religion, and of pilgrimages to Jerusalem, to the thresholds of the Apostles, and to St. James of Compostela (tom. 1, n. 330).

2º In all oaths, if you except oaths accepted by a third party, which were not extorted by fear or fraud. - St. Ligorius, passim.

126. • IV. Concerning certain particular cases, Bishops can dispense:

1º In all matters of lighter moment, both from custom and because recourse to the Pope would be too inconvenient.

2º In all things which commonly occur, for example, in fasting, in abstinence, in the divine Office for particular cases ⁶, or for a brief time, etc.

⁶ ** Understand, with particular persons; for in common law Bishops do not have the faculty of dispensing with a whole community.

3º In all statutes which have the clause, "until dispensation is given." But whether a Bishop can dispense in canonical statutes not expressly reserved, St. Ligorius judged that the negative opinion is altogether to be held, bk. 1, n. 191 ⁷.

⁷ ** St. Alphonsus (Hom. Apost., tr. II, ch. VI, n. 58) writes these things concerning this question: But whether Bishops can dispense in all Canonical laws where the Dispensation is not expressly reserved, many Doctors admit this, as Soto, Covarruvias, Sporer, St. Antoninus, who calls it common, and Elbel, who calls it most common and for it adduces St. Bonaventure and Scotus, and Castropalaus calls it probable with the Gloss on ch. Nuper, De Sent. Excomm., where the Pontiff thus acknowledged: "Yet because the founder of the Canon did not specially retain absolution to himself, by that very fact he seems to have conceded to others the faculty of relaxing." And the Gloss adds: "Here is an argument that Bishops can dispense where Dispensation is not specially prohibited, from law Nec non, ff., Ex quibus causis." But on the contrary Suarez, Bonacina, the Salmanticenses, etc., deny from ch. Dilectus, De Temp. Ord., where a certain Bishop, since he had conferred several orders on one person on the same day, was suspended for this reason: "Since a Dispensation of this sort from the Canon was by no means permitted to him." And they respond to the text first alleged, that that disposition was made only for absolution from censures. But, notwithstanding this, the first opinion is sufficiently probable, because we can use the same response for the second text, that it has force only in the matter of ordination. All the more because in the first text the words seem to speak generally, but in the second specially about ordination, since that word, "of this sort," is used. Thus far St. Alphonsus.

4º For performing the Sacred Rite from midday. By force of the quinquennial faculties they enjoy the privilege of celebrating for one hour before dawn and another after midday, and of communicating this faculty to suitable Priests.

5º They can choose for themselves a Confessor outside the diocese, provided he is their subject, and they can take him with them to different places; but if he is not a subject, he must be approved by the Ordinary of the place. Cardinals can do the same, but only at Rome, although they can take him whom they have chosen with them outside Rome. - St. Ligorius, Appendix, bk. 1, n. 65.

6º They can dispense from interstices for ordination. - St. Ligorius, bk. 6, n. 793.

7º They can absolve from some cases per se papal, but which by common law are reserved to Bishops or Ordinaries. They are the following: 1º The excommunication imposed on Clerics constituted in sacred orders, or Regulars or Nuns, after a solemn vow of chastity, presuming to contract marriage; and also all persons presuming to contract marriage with any of the aforesaid persons. From the Constitution Apostolicae Sedis of Our Most Holy Lord Pope Pius IX.

2º Likewise the excommunication imposed on those procuring abortion, the effect following. From the Constitution Apostolicae Sedis, etc.

3º Likewise on those knowingly using false Apostolic Letters, or cooperating in the crime in that matter. From the Constitution Apostolicae Sedis, etc.

4º A light striking of a Cleric, or a grave one done by a woman, or by a boy, or by another person impeded from being able to approach the Apostolic See. From ch. Pervenit, 17, and ch. Quod de his, 26, and ch. Quamvis, 58, De Sent. Excommunic.

5º Reincidence into the censure by which anyone is punished who, absolved in the article of death by one not having the faculty, does not present himself to the Superior.

6º Communication in a criminal crime with those excommunicated by the Bishop. From ch. Nuper, 29, and ch. Si Concubinae, 55, De Sent. Excomm. ⁸.

⁸ ** In order that it may be understood what this privilege of Bishops means for itself, it must be noted that by general law it has been sanctioned that he who communicates, that is, cooperates, in the same crime with him who for this very crime has already been excommunicated, incurs altogether the same excommunication. The Doctors derive this rule from ch. Si Concubinae, 55, De sent. Excom., which they usually allege here. Therefore if there is question of a crime reserved to the Pope, the communication in that crime will also be reserved to the Pope; if the crime is reserved to the Bishop, communication will likewise be reserved to the Bishop. Therefore it is plain that the privilege about which the Author speaks concerns absolution from an excommunication reserved to the Bishop; for he therefore says, "with those excommunicated by the Bishop." But then, you will say, what privilege will it be, that the Bishop can absolve an excommunicated person not indeed by the Pope, but by a Bishop? That the reason may be understood, one must have recourse to the doctrine concerning those excommunicated by name ab homine, whom by law only the excommunicator can absolve (see Bonacina, De Cens., disp. 2, q. 2, p. 6, § 1, n. 9). But by force of the privilege the faculty is given to Bishops of absolving him for whom it is difficult to approach the excommunicator. To this matter the Doctors adduce ch. Nuper, 29, de Sent. excom., in which this question is clearly solved. For thus Innocent III says: "Since such a person communicates in the crime and participates with the criminal, and by this seems, by reason of the condemned crime, to offend against him who condemned: absolution will then deservedly have to be sought from him or from his superior by merit of the offense, since equal punishment binds the doer and the consenter.... But if from some just cause it is difficult for him to approach the excommunicator himself, we concede by way of indulgence that ... he be absolved by his Bishop or proper priest." See Thesaurus, De Poen., part 2, word Censura, ch. V.

7º The extraction of one who has fled for refuge from the Church, done by private authority, or the striking or plundering of the goods of the same fugitive, likewise by private authority. Ch. Definivit, 35, caus. 17, q. 4.

8º A visit of a sick person made by a physician, if after he has visited him on the third day, it has not been established for him by the testimony of the Confessor that the same sick person has made sacramental confession, or has deferred it by the counsel of a learned Confessor. From the Roman Council under Benedict XIII, tit. 32, ch. 1.

9º All censures reserved to the Pontiff, if the offense is hidden, with those excepted about which above, n. 84, in the Note.

10º All papal censures and cases, even reserved in a special manner, if because of a legitimate impediment or urgent necessity of hearing confession the Apostolic See cannot be approached. - See St. Ligorius, bk. 7, n. 213.

— 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.

1143. • Clerics enjoy certain privileges from canon law and from Roman civil law, indeed according to several from divine law, namely the privilege of immunity, that they not be punished by a lay court, and of exemption from the lay forum as to goods of their own, both ecclesiastical and patrimonial. But these privileges, and most others generally, among us are no longer recognized by the civil power. See n. 112-114. Yet everywhere there remains the privilege which is called of the Canon, by reason of which those incur excommunication who unjustly lay hands on Clerics, concerning which n. 1719. - From the declaration of the S. C. of Immunity, Sept. 20, 1860, a Cleric, having lost according to the laws of the Church the privilege of forum, by that very fact has lost the other privileges, so that he must be considered as a lay person. Del Vecchio, Comp. Scav. T. I. n. 245 (1).

2234. • The PRIVILEGES of Clerics are restricted to almost THREE, which are: 1. the privilege of competence, by force of which a cleric bound by debt and unequal to paying cannot be constrained to pay unless first the things necessary for honorable support have been deducted; 2. the privilege of canon, by reason of which they incur excommunication who unjustly lay hands upon clerics (or Monks of either sex) (cf. n. 1329); - 3. the privilege of forum, by which it happens that Ecclesiastical persons (under which name Religious men and women equally come) can be summoned only in the ecclesiastical forum.¹⁸

The conditions necessarily to be observed by Clerics, that they may enjoy the privilege of forum, are thus set forth by Trent:¹⁹ "Let him (a cleric) not enjoy the privilege of forum unless he has an ecclesiastical benefice; or, carrying clerical habit and Tonsure, serves some Church by command of the Bishop; or in a Seminary of Clerics, or in some school or university, with the permission of the Bishop, is engaged as if on the way to receiving major Orders" (cf. n. 201 and 2223).

These privileges have been derogated more or less through various Concordats, which the Holy See wishes to be religiously observed.

"Moreover, in those places in which the privilege of forum has not been derogated by the Supreme Pontiffs, if in them it is not possible to prosecute one's rights except before lay judges, individuals are held first to ask permission from their own Ordinary, that they may be able to summon CLERICS into the forum of laymen; and Ordinaries will never deny it, especially when they themselves have given their labor in vain to reconciling controversies between the parties. - But it is not licit to summon BISHOPS into that forum without the permission of the Apostolic See. And if anyone shall have dared to drag before a lay judge or judges either a cleric without permission of the Ordinary, or a Bishop without permission of the Holy See, it will be in the power of those same Ordinaries to proceed against him, especially if he has been a cleric, by penalties and censures ferendae sententiae as against a violator of the privilege of forum, if they shall judge this expedient in the Lord" (Instruction of the HOLY OFFICE, 23 January 1886).²⁰

Clerics enjoy certain privileges from canon law, indeed according to many from divine law.

All the faithful owe reverence to clerics, according to their different grades and functions, and they stain themselves with the crime of sacrilege if at any time they have inflicted real injury upon clerics (Can. 119).

§1. Clerics in all causes, whether contentious or criminal, must be summoned before an ecclesiastical judge, unless provision has been legitimately made otherwise for particular places.

§2. Cardinals, Legates of the Apostolic See, Bishops even titular, Abbots or Prelates nullius, supreme Superiors of religions of pontifical right, major Officials of the Roman Curia, on account of business pertaining to their function, cannot be summoned before a lay judge without the permission of the Apostolic See; others enjoying the privilege of forum, without the permission of the Ordinary of the place in which the cause is carried on; which permission, nevertheless, the Ordinary, especially when the plaintiff is a layman, should not deny without a just and grave cause, especially when he has given effort in vain to settling the controversies between the parties.

§3. If nevertheless they are summoned by one who has had no previous permission, they can, by reason of necessity, appear in order to avoid greater evils, yet after the Superior from whom permission was not obtained has been informed (Can. 120).

All clerics are immune from military service, and from civil public functions and offices foreign to the clerical state (Can. 121).

For clerics who are compelled to satisfy creditors, let those things be safe which, according to the prudent judgment of the ecclesiastical judge, are necessary for honorable support of themselves, yet with the obligation of the same clerics to satisfy creditors as soon as possible remaining firm (Can. 122).

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

Religious of either sex, even lay religious, enjoy the privilege of the canon. Cf. Can. 2343, §4.