VIII. On Privileges

What is a privilege? - A privilege is, as it were, a private law, granting some special benefit to someone, existing outside the Body of Law. Private, because it grants something special to someone and not to all. Law, because it is something stable, not situated in a merely passing act; and while it grants to the privileged person the right of using the privilege, it imposes on all, or on the whole community, the obligation of not impeding the use of the privilege. Special, for privileges would not be granted if, besides the general law, nothing special were granted to anyone. Benefit, since it contains the grace of the Prince. To someone, i.e., whether to an individual person, or to a moral person, e.g., a University, a religious Order, etc. Existing outside the Body of Law, because it is not properly a law, whence neither does it need promulgation; but since it is a kind of donation, it needs acceptance. And this holds concerning any granted grace. Regularly nothing is acquired except by one willing. Cf. Schmalz., l. 4, t. 3, n. 203 ff. But petition stands for acceptance, and if it is sought through a procurator, it suffices that it be accepted through him. Wherefore, as long as someone is ignorant whether a grace has been granted, regularly he cannot licitly use it; but more truly he can validly use it, Suarez, l. 8, c. 25, n. 25; Laymann, c. 23, n. 10; Sanch., de Matr., l. 3, d. 36, n. 6, 8; l. 8, d. 21; Engel, l. 5, t. 33, n. 8; l. 4, t. 3, n. 15, if it is true that the grace was granted. Nor does it matter if the grace was sought for another, even one ignorant of it, indeed even unwilling. Sanch., de Matr., l. 8, d. 26, n. 4; Bonac., d. 1, q. 3, c. 3, n. 4. Hence, if someone neither himself sought the grace, nor knows that it was sought by another and granted, and yet perhaps uses it, one must stand for the validity of the act, namely when this depends only on the will of the one granting the grace, as, e.g., may be seen in dispensations of marriage in the root; or if the Supreme Pontiff, at the request of a Cardinal, permits an outside priest to assist at a marriage, and this priest, ignorant of the petition and concession, assists. But unless something else is drawn out from the concession of the grace, it is considered to be granted only to one knowing and accepting. - C. 17 de Praeb. in 6; L. 1; Suarez, l. 8, c. 25; Lugo, de Poenit., d. 19, s. 2.

A privilege differs from a law, properly such, that is singular; namely one which graciously establishes something special for a certain kind of persons, and, since it is a true law, is contained in the Body of Law; and since at the same time it contains some special benefit, it is a true privilege; but because it is contained in the Body of Law, it is commonly called a privilege enclosed in the Body of Law. Such, for example, is the faculty granted to bishops by Trent, s. 24, c. Liceat 6, of dispensing from irregularities arising from hidden delict and of absolving from hidden cases even reserved to the Apostolic See; restitution in full granted by laws to minors, wives, and interdicted persons. Wherefore, as other laws, so also these need not acceptance but promulgation. Indeed not even the knowledge of those to whom they have been granted is required, in order that they may validly use them. Cf. Suarez, l. 8, c. 26, n. 16. Likewise, just as other laws, so these also are perpetual and do not cease by renunciation, although in particular cases someone can renounce the use of a right introduced for himself, provided the privilege was not granted on account of others, or on account of the dignity of an order or body, or on account of the presumption of common danger of fraud; as those things which have been granted to the weakness of persons, such as restitution granted to novices professing before canonical age, if these renounce the right of restitution. Trent, s. 25, c. 16 de Reg. De Iustis, de Dispens. matrim., l. 1, c. 3, n. 51 ff.

Of how many kinds is privilege? By reason of the subject, one privilege is personal, which is granted to an individual person, e.g., to Titius, or to a body of persons, e.g., to minors, or to a moral body, e.g., to a religious order; another is real, which is also granted to persons, but with respect to dignity, office, place, or thing. Real privileges are perpetual, and to these are also counted personal privileges of the second and third species. Wherefore real privileges pass to successors in the same thing. But personal privileges are extinguished with the same person. - Hence all special faculties habitually granted by the Holy See to Bishops and other local Ordinaries, and also to Superiors General of religious Orders, even for a determined number of cases, do not end on account of their death or cessation from office, but pass to successor Ordinaries. S. O., 24 Nov. 1897; 20 Dec. 1899. But faculties granted nominally to a Bishop are understood to be granted to the local Ordinary. S. O., 5 Sept. 1900. Under the name of Ordinaries also come their Officials, or Vicars, in spiritual matters, general.

By reason of the object, one is against law, which derogates from law, as the privilege of a private oratory; another is beyond law, by which mere grace beyond law is granted, e.g., the faculty of absolving from reserved cases. By reason of cause, one is remuneratory, which is granted on account of certain merits; another gracious, which is granted without preceding merits. A gracious privilege can be revoked even without cause; for it proceeds principally from the liberality of the one granting. A remuneratory one cannot be revoked without cause; for it is granted on account of merits. And if it is remuneratory from strict justice, namely on account of a price paid, on account of a burden imposed, it cannot be revoked without due compensation. By reason of mode, one privilege is granted motu proprio, another at the instance of the parties; one is granted first and in itself, another is granted after the likeness of a prior one. A privilege granted after the likeness of another is either given accessorily or equally principally. If accessorily, it follows the vicissitudes of the principal; whence, when that perishes, it perishes; when that grows or is diminished, it grows or is diminished. If equally principally, it subsists altogether independently of another, and does not follow its vicissitudes. - Suarez, l. 8, c. 4, n. 38; Lugo, Resp. Mor., l. 1, d. 19; L. l. 1, n. 197; App. 2, n. 5; Ferraris, Supplementum, v. Episcopus, n. 20; E. M.

What is a grace made and a grace to be made? Graces are distinguished into made and to be made. A grace is called made when he who grants it assents to the petition, if it is given at the prayers of the petitioner; or when the one making the grace simply grants it, if he bestows it motu proprio. Now when the Prince himself grants it in favor of him to whom he grants it, or as it is said, in gracious form, then the grace is regularly understood as made, as if the Supreme Pontiff grants to a religious order, or to an individual person, to Titius the priest, the faculty of absolving from reserved cases, of blessing rosaries and attaching indulgences to them, etc.

But when he grants it through another, or, as it is said, in commissory form, because it falls back into a mandate, then the grace is sometimes made, sometimes to be made. It is made if another is constituted a necessary executor; but it is to be made if another is constituted a voluntary executor. For in the first case another is merely the executor of the concession of the grace; in the second, another is the executor of the grace to be granted, namely the grace to be granted is remitted to him. And thus the grace is made if in the rescript, e.g., it is said to the Ordinary, "dispense," "absolve," even if some condition to be verified is added, even if there is added "according to your judgment and conscience," which words are placed only on account of the expression of reverence and fittingness. S. C. C., 6 Dec. 1845. But it is to be made if in the rescript it is said, "dispense," "absolve," if you shall have judged it expedient, or if the petitions are remitted to him with the necessary and opportune faculties. L. l. 1, App. 2, n. 13; Bizzarri, Collect., p. 666.

Hence a grace made does not expire by the death of the one granting, or by his ceasing from office; on the contrary, a grace to be made expires, namely while the matter remains entire, unless something else has been provided by law itself. - Reg. 12, Canc. Apost.; L. 8; l. 6, n. 559; Laymann, l. 1 de Privileg., c. 23, n. 18; Alois. Trombetta, Prax. Reg. circa Contr. rer. Eccl., c. 6.

Who can grant a privilege, and to whom? A privilege against law can be granted by those to whom the law is subject; and indeed only to subjects, and only to places which are contained by their power. The reason is that such a privilege is a derogation of law, and the legislator has no authority over non-subjects and outside his own territory. A privilege beyond law can be granted even to non-subjects, because it is not always and necessarily an act of jurisdiction, but an act of mere faculty and, as it were, a donation. Thus a Prince can grant to a stranger the privilege of hunting in his territory. Suarez, l. 8, c. 8, 10, 26.

Can travelers enjoy the privileges of places through which they pass, even if these are against common law? R. Affirmatively. It is established from general custom.

Can one delegated to grant a grace subdelegate? R. Negatively, speaking in itself; because this faculty is not included of itself in the concession of the superior, unless it is expressed. Except: 1. If someone were delegated by the Prince; yet in the case in which the delegation was made as through an office; but not if the person is chosen on account of his expertise, or if not jurisdiction is committed to him, but the mere execution of some cause, or some certain ministry, such as to preach, dispense, enjoin penances, excommunicate or absolve someone. C. 3, 6 and fin. de Offic. et pot. iud. deleg.; S. O., 1 June 1904. Wherefore Regulars, to whom some faculty of dispensing has been granted by the Supreme Pontiff for the easier and more fruitful exercise of the sacred ministry, cannot subdelegate it to others. In the exercise of jurisdiction it matters little what person is constituted judge, provided he is skilled. But in bare ministry, or execution, the industry, experience, and authority of the person are chosen. - 2. If someone were delegated to supply the whole office of another, or to a universality of causes, even if not by the Prince; hence vice-pastors, universally deputed in place of an absent or dead pastor, can subdelegate another, L. 1 § Ab eo ff. Quis a quo. Yet this subdelegation cannot be for the whole, but only for one or another cause, as is common with St. Thomas: "A vicar cannot communicate his whole power, but he can communicate a part." Quodl. 12, a. 31. But a curate administrator, constituted by the Bishop when the parish is vacant, by force of the disposition of the Council of Trent, s. 24, c. 18, can delegate another priest for all offices, unless the will of the Ordinary stands in the way. S. C. C., 9 May 1874, A. S. S., vol. 8, p. 134. What has been said about delegation made by the Prince holds even more of delegation made by the Pope. L. 193. From S. O., 14 Dec. 1898, the Bishop and the Superior General of a religious Order can subdelegate faculties delegated to them by the Apostolic See for a time, whether in a general way or for a particular case, unless this is prohibited or restricted in the faculties. Sanch., de Matr., l. 3, d. 31, n. 4; Ferraris, v. Delegare; L. l. 7, n. 224; E. M.

254 bis. Note: Jurisdiction is the power of ruling others; and it is of the internal and external forum; secular, ecclesiastical; ordinary by force of office, delegated from him who has ordinary jurisdiction. - It is besides contentious or voluntary. The former is exercised over a subject, concerning contentious causes, in judgments, and in one's own territory. The latter is exercised even over a non-subject, concerning other non-contentious business outside judgments, and in one's own territory and outside one's own territory.

Does delegation made absolutely expire by the death of the one delegating? Delegation made by law is after the manner of an ordinary faculty. Made by man, it expires by the death of the one delegating, and by his removal or cessation from office, in contentious jurisdiction, and if the matter is still entire; and in voluntary jurisdiction, if the grace is not made, but to be made; but it by no means expires if the delegation is by way of a grace made, however much the matter may still be entire. This happens: 1. When it is granted on account of public utility, as is the faculty of dispensing in vows, in matrimonial impediments, of absolving from censures, etc. 2. When it is granted on account of the private utility of another, e.g., Caius, Sempronius, etc., yet in such a way that a precept of executing the mandate is imposed on the commissary or delegate, as if he said: dispense with Titius, absolve, provide concerning the benefice, etc., if the petitions rest upon truth. For delegation of this sort contains a right perfectly granted, and therefore, once accepted, perseveres in its being, although the one granting dies, C. 1 § 1 de Filiis presbyt., and this delegation is to be interpreted broadly. On the contrary, it expires if given by way of a grace to be made, the matter however remaining entire; this happens when the grace is not perfectly granted, as occurs when it is given in favor of another private person, and the delegate is not commanded to execute it, but the power of granting the grace is given, or it is remitted to his judgment and will, as if he said: you can and may dispense, etc., if the things set forth are true. The matter remaining entire; for it is otherwise when the matter is not entire. And delegation of this sort is to be interpreted strictly. But the matter is said not to be entire if the delegate has begun to exercise the first act, as if he has begun to call the party to learn concerning the truth of the petitions. R. 16 de R. I. in 6; L. 192-194; cf. here 251, 283 and V. 2, 1045.

How are privileges to be interpreted? - Privileges are worth only as much as they sound. C. Per exemptionem 9 de Princ. in 6. Therefore they receive neither extensive nor restrictive declaration, but regularly only declarative. C. 27 de Praeb. in 6. Wherefore, when the faculty of absolving from papal reserved cases is granted, the faculty also of absolving from episcopal reserved cases is not included. L. l. 7, n. 98. When the faculty of choosing a confessor is granted, one can choose him as often as he wishes. Regularly, because if a privilege is granted in general words, in such a general concession there do not come those things which someone would not likely grant, R. 81 de R. I. in 6, i.e., things altogether extraordinary and unusual, Laymann on C. Sedes 15 de Rescript.; Reiff. on cited C. 81; nor those things which deserve special mention, or are excluded by custom or law. Therefore, when the faculty of absolving from reserved cases is granted, the faculty of absolving from specially reserved cases is not understood to be granted; when the faculty of absolving from reserved cases even specially is granted, the cases of the Constitution Sacramentum Poenitentiae are not comprehended.

Privileges beyond law are of broad interpretation, since they are benefits of the Prince. C. 16 de Verb. sign.; C. Quia circa 22 de Priv. Conversely, privileges against law are of strict interpretation. For it is expedient for the common good that laws enacted for it be preserved entire as far as can be done. C. Ut filii 1; C. Ad praesentiam 2 de Filiis presbyt. in 6. Nevertheless these too are of broad interpretation if the good of the commonwealth or of Religion is concerned, as are privileges granted to communities or to some pious cause, L. l. 1, App. 2, n. 8; if they have been granted motu proprio, C. Si motu 23 de Praeb. in 6; if otherwise they would be useless, C. 30 in fin. de Priv. Those privileges alone are always of strict interpretation which injure the right of a third party, since they are always understood with justice and the right of a third party preserved, C. Licet 12 de Off. iud. ord.; C. Super eo 15 de Off. iud. deleg.; C. Cum olim 12 de Priv. L. 5 ff.; Wirceburg., de Legib., c. 5, a. 3.

Are privileges against common right necessarily odious?

R. Negatively. For a favorable privilege is that which profits one, in such a way that it harms no one, e.g., the privilege of eating meats in Lent. But an odious one is that which, from the favor conceded to one, produces inconvenience for another, e.g., exemption from paying taxes, which burdens others. Hence it follows that privileges against right are not necessarily odious, unless they harm someone. But scarcely can any privilege be given which is truly and properly opposed to common right. For privilege differs from dispensation, which actually excuses from the obligation of law, and therefore is always of itself odious, and contradicts the law; for the subject, although actually exempted from it, nevertheless remains habitually bound. Privilege, on the contrary, proceeds rather parallel with the law; for privilege is some private law directing its subjects, and therefore permanently. Yet because it exempts from the common law, a private privilege against law is regularly of strict interpretation. Regularly, private; for one given motu proprio, or inserted in the Body of Law, or granted to a religious order or community, is altogether of broad interpretation, namely by reason of the common good. C. 40 de Off. et pot. iud. deleg.; C. 22 de Privil.; C. 4 de Praeb. in 6; R. I. 28 in 6. - L. l. 7; l. 3, n. 318, Claus. I.

When do privileges cease? - Privileges of themselves are perpetual; nevertheless they cease: 1. On the part of the one granting, by revocation, e.g., by a contrary law enacted which otherwise could not obtain its effect, or which contains the clause, "notwithstanding any privileges whatsoever"; or by command of the Prince himself granting the privilege, or of his successor, directly manifested to him to whom the privilege had been granted. But it is by no means extinguished by the death of the one granting, since it is a grace made. C. 15 de Rescr. in 6. 2. On the part of the privileged person, by renunciation accepted by the one granting. C. Si de terra 6 de Priv.; by non-use, or contrary use, if they injure the right of a third party, and this third party has legitimately prescribed against them. C. 15 de Privil.; cf. Engel, l. 5, t. 33, n. 19 ff.; Pirhing ib., n. 176; Reiffenst. there, n. 209.

But they by no means cease by abuse, unless regularly after at least a declaratory sentence of a judge, since it is a penalty, C. Ubi 7, Dist. 74; or unless the privilege was given to someone under this express condition, that if he abuses it, he loses the privilege by the law itself. 3. On the part of the privilege itself, granted under a condition, even a tacit one, or to a day, when the condition has been fulfilled and the day has elapsed.

C. 4 de Off. et pot. iud. deleg.; C. 5 de Rescr. in 6. But a personal privilege ceases by the death of the person; a real one, by the absolute and legitimate destruction of the thing or place, or when the dignity and office cease. - But when the final cause ceases, even forever, the privilege does not cease, since it is a kind of donation, Suarez, l. 8, c. 2, n. 5, unless it ceases contrarily, so that the privilege becomes illicit and unjust. Suarez, l. c., n. 6. Indeed, when the cause ceases merely negatively, the privilege does not therefore become a useless benefit; as, e.g., the privilege of a private oratory granted to a sick person or to a person established in dignity, when health has been recovered or dignity lost. L. 14-17; E. M.

Note: No one is held in itself to use a privilege, because each person can renounce his own right; nevertheless sometimes by accident the privileged person is obligated to the use of the privilege: 1. By reason of charity; hence he would sin who, having the faculty of absolving from reserved cases, would be unwilling to absolve a sinner placed in grave necessity. 2. By reason of the common good, namely when the privilege is not personal but real, attached to a place or dignity or state; thus a cleric cannot renounce the privilege of canon or of forum, nor a religious the privilege of exemption. - L. 3; l. 3, n. 318, Claus. XI, Dub. 3, n. 324; Ithur., Cas. 32, n. 20.