IMMUNITY
691
IMMUNITY
has greatly decreased, and no longer enjoys real im-
munity; except as a matter of principle, it hardly
differs from secular property. However, with regard
to buildings used for Divine service, and the movable
property appertaining thereto, most Governments
consider them as property of public utility, dedicated
to the service of the community, and therefore exempt
from taxation. That is also the reason why in several
of the United States, charitable and educational insti-
tutions pay no taxes; in this, however, it is impossible
to recognize an ecclesiastical immunity properly so
called, based on the religious character of these estab-
lishments.
C. Personal immunity is that which withdraws clerics from secular jurisdiction, on account of their perpetual dedication to the service of God. It is not concerned with the withdrawal from secular jurisdic- tion of acts of the clergy as clerics, and in their official capacity; it is clear that, from such a point of view, they are solely under ecclesiastical jurisdiction, with- out there being any necessity to having recourse to any immimity. Personal immunity withdraws them from secular j urisdiction in matters where ot her citizens would be subject to it. If clerics are obliged to keep the ordinary laws, they take their orders and com- mands solely from ecclesia.stical authority; the penal sanctions which they would incur for violating the ordinary laws, may not be imposed on them by secular judges, in virtue of the privilege of the tribunal. This privilege withdraws the clergy entirely from secular judicial jurisdiction, so that not only spiritual lawsuits of clerics, but also temporal lawsuits, whether the suits be criminal or civil, fall within the jurisdiction of the ecclesiastical judges (see Privileges, Clerical). The privilege of the tribunal has disappeared almost completely to-day, with the consent, whether tacit or explicit, of the Church in the various concordat.s (see Nussi, " Quinquaginta Conventiones", Rome, 1809, § xx). Further, per-sonal immunity exempts the clergy from public duties imposed by law on citizens in general or on certain classes, and also from taxation and imposts. Some of these public duties were con- sidered servile, for instance, statute labour, the duty of contributing personally to the upkeep of roads and bridges; others were considered honourable, as guar- dianship, the municipal magistracy (curia), military service. The clergy, like the nobility, by reason of their rank, the highest of all, were e.xempt from servile duties; they were excused from the others, by reason of their withdrawal from secular business. The first class of duties has disappeared in our days; as to the second, the immunity has been maintained to a large extent under modern laws, such is the manifest incom- patibility of the sacerdotal ministry and certain of these offices. Thus clerics are not called on to act as jurymen in criminal affairs. In some countries, clerics filling positions recognized by the State are exempt from guardianship (for instance, parish priests in Italy), and are excluded from public or municipal offices in the localities where they exercise their eccle- siastical functions. As to military service, in coun- tries where it is compulsory the condition of the clergy varies. They may be entirely exempt, as in Austria and Belgium, or they may be under restricted ol^liga- tions, as in Italy or Germany; finally, they may be placed on an exact equality with the other citizens, as now happens in France. Such a violation of their immunity is not one that the Church tolerates and accepts in silence; the opposition between military service and the vocation of the clergy, ministers of peace, is only too violent and apparent ; the bishops and the popes have, therefore, protested against the laws which in divers coimtries compel the clergy to serve in the army (cf. the letter of Leo XIII to Cardi- nal Nina, dated 27 August, 1S7S). Finally, clerics were exempt from taxes and imposts, whether purely personal, as the poll-tax; or real, as property tax. It
must be recognized however that the latter exemption
was practically disregarded by all nations except the
Papal States. It has now completely disappeared.
Juridical Origin. — The raison d'etre of all this immunity is the respect due to God, which is shared by those things and persons dedicated to Ilis worship. Viewed in this light it springs from both natural and Divine law. Moreover, it is certain that if we consider the sacred ministry and worship formally, the prop- erty, the persons, and their acts are subject, by Di- vine right, only to religious authority, but that is not properly speaking an immunity. It is only one aspect of the greater question of the independence of ecclesiastical society of the civil society. The pre- cise point in question is the juridical origin of the im- munities we have just spoken of, which do not directly concern their acts as ministers of religion; are these immunities of right Divine, or of positive canon law, or even of secular law, that is, only generous conces- sions of princes, which might be withdrawn at will? No one disputes that immunities are part of the posi- tive ecclesiastical law; every one admits that they have been inserted in civil laws, else they could not have been applietl. But were canon law and civil law already bound loy Divine law? If they were, the Church woidd be unable to make concessions in the matter of immunities, and the civil laws in suppressing them would be essentially unjust and without force. In answering this question we meet with two extreme opinions, but the truth will be found between them. A number of theologians and canonists (cf. Ferraris, "Prompta Biblioth.", s. v. "Immunitas", a. I, n. 7, 14) hold that the immunities are estal)lished by Divine law, with the cxcep'tion of the right of asylum. They point out that in all nations, the consecration to the Deity of temples, property, and persons, placed them outside ordinary conditions, and made them specially exempt; in the Old Testament this was the case in regard to a worship that only prefigured the Christian worship; the custom of exemptions dates back to the very origin of the Church; finally, certain canonical texts speak of the immunities as being of Divine right. Opposed to this we have the " regalist " jurists declaring that "the immunities of the clergy are favours which the ecclesiastics received from sov- ereigns, not from popes and councils" (Hericourt. " Les Lois eccl&iastiques de France", H, v, viii); and Governments have acted in accordance with this view.
These "regalists" say that the clergy, allowance made for their si)ritual functions, are on a level with ordinary citizens in all other matters; that Church property, although legally applied to the clergy and the expenses of Divine worship, neverthe- less, does not cease to be essentially a temporal thing, and consequently subject to the secular power; that all immunities originate in concessions of emperors and Christian princes. Recent canonists hold a mid- dle opinion (cf. Cavagnis, "In.stit. juris publ. eccles.", II, 323 sq., 4th ed., Rome, 1906). They remark that the Church has never given an official answer to the question, but that it seems possible to ascertain ex- actly what she thinks from two facts: on the one hand she protests against the civil laws that suppress the immunities, and claims them as belonging to her of right (cf. prop. 30, 31 and 32 of the "Syllabus"); she therefore does not consider them to be concessions granted freely by the civil authorities. On the other hand, yielding to the conditions and circumstances of modern society, she makes no effort to revive the immunities that have disappeared, at least the right of asylum and exemption from property taxes, which is conclusive that she does not consider them un- changeable prescriptions of the Divine law. These authors conclude that the immunities are founded in Divine right, but emanate from positive canonical legislation; they repeat with the Council of Trent
