Appendix. On Privileges

You will ask 1° what a privilege is.

I answer. Privilege, as to its name, is a private law, or, as others will have it, though less well founded, quasi privans lege, as it were depriving of law; but as to the thing and taken formally, it is a singular right, granted by the prince to certain persons on account of some utility, of doing or not performing something, against or beyond the law.

The definition is explained. It is called right, by way of genus, in which it agrees with law, since after the manner of law it obliges. It is called singular, because it is given to one or another singular person, or to a lesser community taken as a singular person, although consequently it obliges the whole community subject to the prince not to impede the privileged one in the use of his privilege. By this is also expressed the subjective cause of privilege: concerning which it must be noted that, although strictly privilege ought to be granted only to a subject of the prince, that is, to him who is such either permanently or transiently, as pilgrims, nevertheless taken widely it can be granted even to one not subject, since it is an act of mere liberality and beyond right. It is said, of doing or not performing something against or beyond the law, by which words are expressed the object or material cause of properly so-called privilege, which is an act commanded or forbidden by common right, so that with respect to the privileged person it ceases to be commanded or forbidden. It is said, on account of some utility, in which words you have the final cause; for the general end of privilege is some utility redounding to the good of the commonwealth. Finally, in the words granted by the prince is expressed not only the efficient cause, but also the extrinsic formal cause of privilege, by which, as of law, it is an act of the prince legitimately manifested; for the whole value of the privilege depends upon the will of the prince. From which it follows that he alone and every one who can make a law can also found and grant privileges.

You will ask 2° in what privilege differs from dispensation.

I answer. To differ in this, that dispensation indeed relaxes the common right, but without duration and stability, or for a single act only, e.g., to receive order, or is mostly granted limitatively for some acts. On the contrary, privilege is indulged with some stability and perpetuity, and for many acts not limitatively.

You will ask 3° how manyfold privilege is.

I answer. Privilege is divided many ways: 1° Into affirmative, by force of which it is lawful to do something not permitted by common right, as to celebrate in pontificals; and negative, from which it is lawful to omit what by right one ought to do, as not to pay certain taxes. 2° Into personal, which is granted directly and immediately in view of the individual person, and coheres with him; and real, which is directly and immediately attached to a thing, or indulged to a person with respect to a thing, e.g., an office, dignity, and thence coheres with the thing, and all who hold the office or dignity may enjoy it. Certain add mixed, which is partly personal and partly real, and is granted to persons with the addition of place. Privilege is personal when the words of concession are directed to the person, with expression of his own name, e.g.: « To thee Peter, archbishop of Paris, we grant, etc. » It is real if the words be directed to the person with expression of the thing or dignity, e.g.: « To the bishop of Autun we grant the use of the pallium. » 3° Into gratuitous, which is indulged from mere liberality, without singular merit; and remuneratory, which is bestowed as reward and compensation of signal merits. This latter is personal by its nature; nothing however stands against its being extended and communicated to sons, grandsons, and the whole family, if the paternal and ancestral merits be so many and so great that it be fitting that such honor become hereditary, and so be perpetuated. 4° Into pure, which is granted without reciprocal obligation; and conventional, which is conferred with pact and obligation of doing something; yet this does not seem to be comprehended under the name of privilege in odious matter, because onerous conventions are not rightly drawn to gracious matter. 5° Into common, which per se regards the good of the community, and consequently derives into individuals, as the privilege of forum and canon; sometimes it belongs, as to use only, to the community as such, as the privilege of free election; sometimes to individual members, as many privileges of religious; and into private privilege, which per se regards the convenience of one or another person, yet verges consequently into the common good, as the privilege of restitution in integrum. 6° Into privilege closed in the body of law, which is inserted among other laws, and puts on the nature of law and is favorable; and that which is granted by special rescript, and is held somewhat odious to others, receives therefore a stricter interpretation, and has against it a presumption of law. 7° Into singular, or granted in singular form with special clauses, e.g., « motu proprio, ex certa scientia, ex plenitudine potestatis, » and vulgar, or at the prayers of the privileged one, without the aforesaid clauses. The first is favorable, nor can it be accused of obreption or subreption, with which the second can labor, since there is always subunderstood in it the condition, « if the prayers rest upon truth. » 8° Into written, which is granted through the rescript of the prince; and unwritten, which is granted orally, or, as is said, by oracle of living voice. 9° One kind is given for the forum of conscience, and is not acknowledged in the contentious forum; another for the external forum, and profits even in public judgments. 10° Finally, one is absolute, which is favorable only to the privileged person; and another respective, which favors the privileged one in such wise that at the same time it verges to the burden of others.

You will ask 4° in how many ways privilege is acquired.

I answer. Privilege is commonly said to be acquired four ways: by custom, prescription, concession, and communication. But since custom and prescription are not so much [motes, because he who is protected by custom or prescription obtains that right which another holds adorned with privilege], hence the modes of acquiring privileges are reduced to concession and communication. Concession of privilege is its original collation made by the legislator who made the law from which the exemption is indulged, or by his successor or superior. Communication is the extension of a privilege from one subject to another. It takes place simply, or with peculiar clauses added. If it take place simply, it gives the faculty of exercising all privileges granted to the subject from whom or in view of whom they are communicated, unless they be plainly singular, wont to be more rarely granted, or prohibited from being communicated. But if it take place with clauses added, according to their diversity there is diverse communication. For it takes place one way relatively and ad instar, that is indirectly, accessorily, as many privileges indulted to religious are communicated to nuns, to their familiars, physicians, advocates, etc.; and communicated in that way, they are diminished and lost if the original privileges happen to be diminished or lost. Second way, absolutely or pariformiter and equally principally as if they were granted directly and specially to those to whom they are communicated; and these privileges are neither diminished nor lost, even if the original privileges happen to be diminished or lost, because they no longer depend per se on the former. That these terms must be thus taken is established from several pontifical constitutions, signally from the bull of Gregory XV Ad uberes fructus, where the term ad instar is opposed to the term pariformiter, and from the bull of Clement XIV Supremi apostolatus, where the same term is opposed to the term principaliter.

You will ask 5° what are the effects of privilege.

I answer. 1° It confers on the privileged one the right of using his privilege according to its tenor and right interpretation, and imposes on others the obligation of not impeding the use of the privilege. But the privileged one must observe the place, time, mode, and other conditions expressed in the concession. But if place and time were not expressed, nor the subject matter persuade otherwise, the grace granted extends to every time, and equally to the whole territory of the granter: nay, if the grace remove only an incapacity, or permit an act prohibited by no special right of the place, the use of it is licit even outside the territory of the granter, as to read prohibited books everywhere, to celebrate before dawn, etc. 2° The privileged one is not bound to use his privilege, because favor cannot pass into burden; unless perchance there arise from it per accidens an obligation which he must personally satisfy, as hearing Mass on Sunday during the time of interdict, or an obligation toward another to be fulfilled, e.g., a confessor who obtained the faculty of absolving from reserved cases, after having heard confession, is bound to use it. But if the privilege be public from its end, e.g., privilege of forum, he may not renounce it, because public order does not suffer it. 3° In the concurrence of two privileges, several things are to be discerned. If the privileges be respective and opposed concerning the same object, the special prevails over the general, because species derogates from genus, from rule 34 of Law in 6°. But if each be equally general or special, the stronger prevails, that is, the older or granted by greater power. If the privileges apparently contradict one another only, the more absolute prevails, while the other yields to it as tacitly conditioned: thus a church exempted from paying tithes enjoys its privilege against the church to which the right of exacting tithes from all churches was granted by privilege. If from the very law the privilege have prelation, it prevails over the other.

You will ask 6° how it be lawful to use a privilege by way of interpretation.

I answer. 1° Not at arbitrement, but according to the rules commonly received from doctors, so that the words of concession, as far as the matter suffers, be understood properly and generally as they sound. Odious privileges, that is, adverse to common right or to a right acquired by a third party, are restricted; merely favorable ones, as a benefit of the prince, must be taken most widely; personal ones are limited to the person, real ones extend even to successors. In doubt, a favorable privilege is held real, as also conventional follows from the pact, whose nature it follows. But a prejudicial privilege is held personal, as also remuneratory, although this frequently, on account of the merits of ancestors, is real. 2° Privileges admit comprehensive interpretation; for the person not expressed in the privilege, for whom nevertheless the identity of reason militates entirely, seems contained in it virtually, insofar as that person was comprehended in the mind of the privileging prince: whence the privileges of male religious are common to nuns, provided the matter be accommodated to them. What is said of persons must likewise be understood of cases. Extensive interpretation is not admitted, however, on account of parity or even greater reason, because the force of privilege arises not from reason but from the will of the prince.

You will ask 7° in how many ways privilege is lost.

I answer. It is lost in several ways: 1° By the death of the subject in which it inheres. Thus personal perishes with the person perishing, real with the thing wholly perishing, as if a church be destroyed without hope of rebuilding, unless the privilege inhere in the pavement or place itself, or the community translated elsewhere draws the privilege with it. 2° By the cause ceasing. Further, the cause ceases contrarily or negatively: contrarily, when the use of the privilege, on account of the change of circumstances, becomes unjust, in which case the privilege is lost; negatively, if the use of the privilege do not become unjust, but the sole reason of granting no longer subsist, and then the privilege is not lost: thus the privilege of the right of tithing granted to religious on account of poverty does not expire, even if with progress of time the monastery obtain fat revenues. 3° By lapse of time for which the privilege was obtained, or by not keeping the condition under which it was granted. 4° By free renunciation, if the privilege be not common, as was said. 5° By non-use, or contrary use, only those privileges perish which contain the burden of a third party. If this happen through tacit renunciation, so much time is required as suffices to induce the presumption that someone abdicated himself of the privilege; but if this be done through prescription, the times and other requisites for prescribing legitimately must be observed. 6° By abuse, because he deserves to be deprived of the privilege who abuses it, either extending its limits, or taking from it occasion of sinning more freely, or acting against the end of the privilege. Yet this loss, except in the case where one acts against the end of the privilege, is not induced ipso jure, but, being penal, presupposes the sentence of a judge. 7° By revocation. The prince alone, or his successor or superior, can revoke privileges. For licit revocation, not truly for valid, is required a reasonable cause; and if the privilege be onerous, without violation of commutative justice it cannot be revoked for any other cause than necessity or public utility. Revocation takes place either expressly, while the prince removes the granted privilege by open words; or tacitly, when he posits a contrary act, or brings a law opposed to the privilege. Further, revocation through universal law does not obtain its effect unless the law have been sufficiently promulgated; likewise through a general clause, « notwithstanding any privileges whatsoever, » privileges fortified with special clauses are not revoked, by force of which they cannot be revoked unless special mention be made of them, since the general clause does not contradict special clauses. But if revocation be made specially, then it obtains its effect, when duly intimated to the privileged one. Moreover, as special privilege derogates from general, a posterior contrary law derogates from the prior privilege closed in the body of common law, because the prince is not held ignorant of this; but not from privileges wandering outside common law, unless mention be made also of these, because these the superior probably ignores.

Let these things suffice concerning privileges in common. Most usefully is read the appendix on Privileges placed at the end of the Theologia moralis of St. Alph. de Ligorio, where, the general principles being exposed, many things are treated concerning privileges in particular.]