CHAPTER V: ON FAVORABLE LAW, OR ON PRIVILEGE

190. Definition. - It is a private law conceding something special against or beyond law. It is called a private law, not indeed with respect to the privileged person, upon whom no law is imposed, indeed a grace is conferred; but with respect to the community, upon which the obligation is imposed of not impeding the use of the privilege.

191. • It is divided 1° into real and personal. A real privilege is said to be one which is directly conceded to some thing, office, or condition distinct from the person, for example, to a certain altar, so that a plenary indulgence, applicable to the dead, may be obtained by the celebrant on it; likewise to a Bishop as such, or to his See or Office, or to some community. - A personal privilege is that which is immediately given to a person by reason of himself, as the privilege conceded to a certain confessor of absolving from reserved cases.

2° Into gracious and remunerative, according as it is conceded without any respect to the merits of the privileged person or of others, for example, of parents, or on account of them.

3° Into conventional and pure, according as it is obtained with some agreement intervening, or with none intervening.

4° Into perpetual and temporal.

5° Into a privilege against law and beyond law, according as through it derogation is made from some law or not. Thus exemption from the jurisdiction of the Ordinary is a privilege against law.

192. Principles. - I. A privilege is acquired - either by concession of one having power, - or by legitimate custom, if concerning a community, - or by prescription, if there is question of a private person.

193. • II. It must be interpreted 1° so that it be neither useless nor burdensome to the privileged person; 2° authentically or doctrinally according to the norm of law (n. 141); 3° broadly or strictly, according as it is favorable or odious (n. 144. D). But a privilege is called odious if it derogates from common law, or from statutes which are not contrary to common law, or from customs, or if it yields to the detriment of others; otherwise favorable. But an odious privilege is equated with a favorable one and must be interpreted broadly if either a) it is inserted in the Body of Law; or b) it is real, for on account of its perpetuity it is judged to be inserted in the Body of Law; or c) it was conceded with the clause: from certain knowledge, or of one's own motion; or d) it is a privilege of absolving, dispensing, or communicating to others; or e) it was conceded to some order, convent, community, or for another pious cause; for privileges conceded to communities are all presumed to be remunerative of services rendered, and for that reason all are held as favorable.²

194. • III. No one of himself is held to use his own privilege; sometimes however by accident, namely if by not using it you would bring grave damage upon the common good or upon your neighbor, or if by using it you can easily remove an impediment to observing a precept. Hence Bishops, Clerics, and Regulars are held to use the privileges conceded to their state, if by not using them they would bring detriment upon their state. Likewise, having the faculty of absolving from reserved cases, you are held to absolve a sinner having reserved sins, already confessed and rightly disposed, or to hear him when placed in grave necessity. Similarly, a priest having the faculty of celebrating in any decent place whatsoever is held to celebrate outside a church if he can do so conveniently and decently, and otherwise he cannot satisfy the precept of hearing Mass.³

195. • IV. Privileged persons are held to show to local Ordinaries their privilege or a trustworthy copy of it: 1) although they have not been required, and before they can use them, if there is question of privileges with the clause: the Ordinaries of places having been informed, or of new indulgences to be published; 2) when required, yet without meanwhile being able to be interdicted from the use of the privilege, if there is question of a privilege of exemption of some religious institute, where it would not be sufficiently notorious.

196. • V. A privilege ceases 1° generally in the same way as delegated jurisdiction (n. 151). Yet those things do not cease by renunciation which are conceded not so much to the person as to a condition or state; hence a religious cannot renounce the privilege of exemption. - Revocation also occurs through a new law, although there is no revocatory clause, when otherwise the new law cannot obtain its effect; for the law ought not to be said to have been established uselessly. But for revocation there ordinarily suffices the general clause: notwithstanding privileges, unless they are of justice, inserted in the Body of Law, or otherwise qualified. But if the revocation is said to have been made from certain knowledge, of one's own motion, from the fullness of power, or if the mind of the legislator is certainly established, then any privilege whatsoever is revoked, except onerous ones, namely those conceded because of a price paid by the privileged person, or because of a burden imposed upon him.¹ - 2° By cessation of the final cause in the manner of dispensation (n. 164). - 3° By a condition, under which it was conceded, not having been observed. - 4° When the number of cases for which it was given has been exhausted. - 5° By non-use through a space of time sufficient for prescription,² if the privilege is odious, and the occasion of using it has offered itself; - because in this case there is judged to be a tacit renunciation of it. If it is not odious, it is not lost by prescription; because there is no one who has a right of moving a complaint concerning it. - We said: and the occasion of using it has offered itself; for otherwise the privilege is not lost. Thus he who has not used the privilege of drawing water from another's land into his own land, because the spring dried up, will not be able to be said to have lost the privilege.³ - 6° By a use formally contrary to the privilege, if the privilege is odious, on account namely of presumed renunciation of the privilege; thus he who has the privilege of not paying tithes, and nevertheless knowingly and freely pays them, loses the privilege. But if it is not odious, for the contrary reason he does not lose it: thus he who has the privilege of not fasting during the time of Lent and nevertheless fasts, does not lose his privilege; because fasting is presumed to be done only from devotion, not from the will of renouncing the privilege. - 7° By abuse; because he deserves to lose a privilege who abuses it. Yet for this there is required the sentence of a judge (because it is a penalty), unless the privilege was given under the condition of losing it by the very fact of abuse.

What has been said concerning the cessation of an odious privilege by non-use and by contrary use has force for the external forum alone. St. Alph., de Priv. n. 14.