Exemption

Exemption is the whole or partial release of an ecclesiastical person, corporation, or institution from the authority of the ecclesiastical superior next higher in rank, and the placing of the person or body thus released under the control of the authority next above the former superior, or under a still higher one, or under the highest authority of all, the pope. Originally, according to canon law, all the subjects of a diocese, and all diocesan institutions, were under the authority of the bishop. On account of the oppressive manner in which bishops at times treated the monasteries, these were soon taken under the protection of synods, princes, and popes. The papal protection often developed later into exemption from episcopal authority. The first privilege of this kind was given by Pope Honorius I, in 628, to the old Irish monastery of Bobbio, in Upper Italy (Jaffe, Regesta Pont. Rom., no. 2017). Since the eleventh century, papal activity in the matter of reforms has been a frequent source or occasion of exemptions; in this way the monks became more closely bound to the popes, as against the bishops, many of whom were often inimical to the papal power. It thus came to pass that not only individual monasteries, but also entire orders, obtained exemption from the authority of the local ordinary. Moreover, from the reign of Urban II, the broadly general "protection" of the Holy See (libertas Romana), which many monasteries enjoyed, came to be regarded as exemption from the authority of the bishop. From the twelfth century, it may be said the exemption of orders and monasteries became the rule. Exemptions were also granted to cathedral chapters, collegiate chapters, parishes, communities, ecclesiastical institutions, and single individuals. Under these circumstances the diocesan administration of the bishops was frequently crippled (Trent, Sess. XXIV, De ref. c. xi); consequently the bishops complained of such exemptions, while, on the other hand, the parties exempted were wont to accuse the bishops of violating acquired privileges. The Council of Trent sought to correct the abuses of exemption by placing the exempt, in many regards, under the ordinary jurisdiction of the bishops, or at least under the bishops as papal delegates. This provision of the council was never fully executed, owing to the frequent opposition of the monasteries. About the beginning of the nineteenth century, however, many monasteries were suppressed by the process known as secularization, in part accepted by the Holy See. In some countries more recent civil legislation does not permit exemption.

Exemption, as a rule, arises when the privilege is granted by competent authority (exemptio dativa). It can also rest on immemorial use (exemptio praescriptiva). Finally exemption can be original (exemptio nativa), when the respective church or monastery has always been free and distinct from the later diocesan organization. The claimant of exemption must prove the fact.

Exemption ceases by the complete or partial withdrawal of the privilege by the giver, by customary exercise of a contrary usage, or by extinction of the rightful subject of the privilege.

Another kind of exemption applies to bishops, when released from the authority of the metropolitan, either at their own request or as a gracious act on the part of the Apostolic See, under whose direct control they are then placed. However, to prevent injury to the Church, the bishops, thus made independent of their proper metropolitans, are obliged to attend the synods of the province for which they have opted. Bishops who had not connected themselves with any provincial synod were summoned, by Benedict XIII, to attend the Roman one of 1725. Exemption also frequently occurs in connection with the system of military chaplaincies. In Austria, since 1720, the "Feldbischof" (army bishop), nominated by the emperor, is exempt. In Prussia, since 1868, the "Feldprovost" or army provost, is appointed by the pope after nomination by the German emperor. In France military chaplains who serve permanent garrisons remote from a parish church were exempt. In Spain and elsewhere vicarii castrenses generales, i, e, army vicars-general, are appointed.

As applied to monasteries and churches, exemption is known as passiva or actives. In the former case the jurisdiction of the monastic or ecclesiastical prelate is confined to the ecclesiastics and laity belonging to his monastery or church. On the other hand, prelates having "active" exemption may exercise a more extensive jurisdiction. They are (I) those who have certain episcopal rights over a clearly defined territory otherwise belonging to the diocese, and are known, canonically, as proelati nullius (i.e. dioeceseos) cum territorio conjuncto; (2) those who have episcopal jurisdiction over a definite territory entirely distinct from the diocese, and known as proelati nullius cum territorio separato. The latter are proelati nullius in the proper sense; such, e.g. are the abbots of Monte Cassino, in Italy, and of St. Moritz, and Einsiedeln, in Switzerland. Prelates actively exempted have almost the same rights and privileges as a bishop. They may sit and vote in a general council, make laws within their proper territory, exercise canonical jurisdiction in matrimonial, disciplinary, and criminal matters. They may also grant faculties to hear confessions, reserve to themselves the right of absolving from certain sins, inflict ecclesiastical punishments and censures, grant faculties for preaching, make visitations within their jurisdiction, found an ecclesiastical seminary for priests, and appoint a vicar-general. Correspondingly, such a prelate must reside in his district, offer the Holy Sacrifice for the people, every Sunday and feast day, go at stated times to visit the Apostolic See (visitatio liminum Apostolorum), and attend the synod of the province, for which option has been declared. He is not, however, obliged to attend the diocesan synod. As a rule, such prelates are not consecrated bishops. They must consequently apply to some bishop of their own choice for the confirmation of their subjects, and for the consecration of the holy oils; for the ordination of their subjects, however, they must apply to the nearest bishop. When such proelati nullius are also regular abbots they may confer on their subjects the ecclesiastical tonsure, and ordain to the lower orders, or to this effect grant dimissorial letters to the diocesan bishop. Without papal privilege, however, they cannot make use of the pontifical insignia (pontificalia), nor perform acts of consecration reserved to bishops. Nor can they, without papal privilege, convene a diocesan synod, appoint synodal examiners, or hold examinations for appointment to parishes.

Although regulars are, in all matters of substantial importance, exempted from jurisdiction, there remain a number of matters in which they are subject to episcopal control. Regulars living outside of their monastery are subject to the bishop as papal delegate (Conc. Trid. Sess. VI, De ref. ch. iii; Sess. XXV, De regul., ch. xiv). Besides the papal confirmation, the consent of the bishop is also necessary for the founding of a monastery (Conc. Trid. Sess. XXV, De regul. ch. iii). The bishop has the right to bless an abbot confirmed by the pope (Conc. Trid Sess. XXV, De regul. ch. vi). Monasteries of men are subject to episcopal visitation only in respect of parochial work (cura animarum) carried on by them outside of the monasteries (Conc. Trid. Sess. XXV, De regul., ch. xi). The bishop has the right to confer major orders on regulars, and to use the pontificalia in their churches. When the regulars have no special privilege the diocesan bishop consecrates their churches; and they must obtain episcopal permission for processions outside the immediate vicinity of such churches. They must also ask the episcopal blessing before they can preach (coram episcopo) in churches of the order, while, in order to preach in any other than their own churches, canonical authorization (missio canonica) must be obtained from the bishop (Conc. Trid. Sess. V, De ref. ch. ii). To hear the confessions of the laity, and to grant absolution in cases reserved to the bishop, regulars require episcopal approbation (Conc. Trid. Sess. XXIII, De ref. ch. xv). The writings and books of regulars must be submitted, before publication, to the diocesan censor for the place of issue (Leo XIII, "Officiorum ac munerum", January 25, 1897, no. 36). It is also obligatory, on members of orders, to observe the ordinances of the bishop respecting the Church feast days, church services, and processions (Conc. Trid. Sess. XXV, De regul., ch. xii, and ch. xiii).

The rights of the bishop in respect to exempt orders of women are still more extensive. The bishop, or his representative (commissarius), presides at the election of abbesses, prioresses, or superiors (Conc. Trid. Sess. XXV, De regul. ch. vii). The right to visit canonically religious houses of women belongs to the bishop; he is charged in particular, with the entire superintendence of the observance of the clausura or cloister (Conc. Trid. Sess. XXV, De regul. ch. v). The bishop appoints the confessors, ordinary and extraordinary, for religious houses of women; in cases where such appointment belongs to some one else the bishop must, at least, give his approbation (Conc. Trid. Sess. XXV, De regul. ch. x). It is the bishop who examines into, either personally, or by representative, the voluntary character of the entrance of candidates into orders for women, both when they put on the habit of the order, and when they make their profession (Conc. Trid. Sess. XXV, De regul. ch. xvii). It is the bishop, finally, who audits the management of the property of female orders and religious houses. For exemption of ecclesiastics from secular jurisdiction see Immunity.

JOHANNES BAPTIST SAGMULLER