Exemption, History of

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EXEMPTION, HISTORY OF

Exemption, in general, is a privilege whereby persons, places, or things are removed from the jurisdiction of a superior to whom they would otherwise be subject. Canon Law recognizes exemptions of persons other than institutes of consecrated life (for example, cardinals in Codex iuris canonici c. 357 §2), but it is the former which has been of primary interest in the history of the Church. In the Latin Church, the exemption of institutes of consecrated life implies their removal from the governance of the local ordinaries and their subjection to the Supreme Pontiff or other ecclesiastical authority (see Codex iuris canonici c. 592). This article traces the development of exemption as a canonical institution. Since this development was largely determined by the evolution of the religious state (status religiosus ) and by changes in the historical situation of the Church, the five divisions of the article are chronological.

Preparations. The problem of exemption, or more precisely, episcopal exemption, did not arise in an acute form in the earlier centuries of monasticism. It was only with the emergence of predominantly clerical communities after the sixth century, that it became necessary to balance the bishop's right to control the exercise of priestly ministry within his diocese against the rights of an abbot to direct the life and work of his subjects. By the middle of the fifth century, however, certain guiding principles had already emerged: the Council of chalce don (451) decreed that the bishop's permission was needed to erect a monastery and that monks must be subject to the bishop. The Council of arles (455) distinguished external affairs and those works of the monastery that were to be subject to the bishop from the monastery's internal affairs, in which the abbot's government was to be free of episcopal interference. During the 6th century this was the basis of most legislation regulating the relationship of monasteries and bishops, although with some local variations (African usage generally favoring greater freedom for the monastery and European usage demanding greater subjection to the bishop). Pope gregory the great (590–604) supported and refined the principle of Arles, especially with regard to monastic freedom from episcopal interference in electing abbots and in administering temporal goods; Gregory's frequent interventions in disputes between bishops and monks gave rise to a firm jurisprudence on many points.

Early Instances of Exemption. The first known instance of episcopal exemption in the proper sense of the term is the one granted by Pope honorius i to the monastery of bobbio in 628. The motives for this grant were the personal prestige of its founder, St. columban, the traditional monastic organization of the Church in the ritish Isles, and the special ethnic and geographical situation at Bobbio; precedents suggesting the juridical possibility of such a grant included the Germanic usage of the ecclesia propria (Eigenkirche, or proprietary church) and the Roman-law institution of immunitas, e.g., of military personnel from civilian jurisdiction. Among other early examples of exemption are the two monasteries of Benevento (714 and 741) and those of Fulda (751) and farfa (775). cluny was exempt from its foundation (912) and was later allowed to communicate its exemption to other monasteries joining the cluniac reform; this concession by Rome, in support of a particular reform, was later to become a pattern for much wider communication of privileges among religious.

Late Medieval Period. The foundation of the cistercians (1119) and of the mendicant orders a century later, gave rise to new motives for exemption: centrally organized orders working in several dioceses could accomplish their purpose only if they had considerable autonomy. Consequently, in the later medieval period all religious came to enjoy exemption from the authority of the local ordinary. This of course raised difficulties of its own; the wide granting of full exemption seriously weakened the authority of bishops and readily lent itself to abuses. Protests were voiced at the Councils of constance (1414–18) and Fifth lateran (1512–17), but no legislative changes were found to meet the problem.

Tridentine Period. Strong steps to limit occasions for such abuses were taken at the Council of trent (1545–63) and in the papal legislation that followed the council. Some powers over religious (especially over nuns) were given back to bishops; more importantly, the number of persons enjoying exemption was sharply reduced, especially when quasi-religious communities lacking solemn vows were rigorously excluded from any share in the canonical privileges of religious. At the same time (1549) paul iii, in the constitution Licet debitum, granted complete exemption to the jesuits.

Modern Era. The period following Trent was characterized by the flowering of the great congregations of simple vows. These enjoyed a sort of partial exemption not unlike that which had been favored by gregory the great, i.e., with the internal regime of the community free of the bishop's authority, but with its external works subject to him. A few of the new congregations were actually given the privilege of exemption (e.g., the redemptorists and passionists), but most managed with a concurrently emerging jurisprudence of their own, whose major steps were the papal constitutions Quamvis iusto (benedict xiv, 1749), and Conditae a Christo (leo xiii,1900). During the 20th century, the differences between exempt and nonexempt religious have been gradually but steadily diminished. The 1917 Code of Canon Law reasserted and strengthened the authority of bishops over all apostolic works in their territories. This authority, reiterated in conciliar and postconciliar documents, found expression in Codex iuris canonici c. 678, which subjects members of institutes to the authority of bishops in reference to the care of souls, public exercise of worship and other apostolic works. Further, while the 1983 Code refers to exemption in canon 591, the concept has almost been completed eliminated (see Huels).

Bibliography: a. scheuermann, Die Exemtion nach geltendem kirchlichen Recht mit einem Ueberlick über die geschichtliche Entwicklung (Paderborn 1938). e. fogliasso, "De extensione iuridici instituti exemptionis religiosorum logice atque historice considerati," Salesianum 9 (1947) 1–64, 147–206, 318–359; Dictionnaire de droit canonique, ed. r. naz (Paris 1935–65) 5:637–665. j. d. o'brien, The Exemption of Religious in Church Law (Milwaukee 1943). j. huels, "The Demise of Religious Exemption," The Jurist 54 (1994) 40–55. d. j. kay, Exemption: Origins of Exemption and Vatican Council II (Rome 1990).