Article — Marc, Institutiones Morales
Article IV: On Privilege
St. Alphonsus, de Privil.; ed. G., I, p. 187; Suarez, de Leg., l. 8, c. 1 and 22; Salmant., tr. 18.
- DEFINITION. Privilege is defined: A private law conceding some special benefit. It is called law, not indeed imposed upon the privileged person, in regard to whom it is a grace, but upon the community, which is held not to impede the use of the privilege. Whence it is of itself a stable right, and if it is limited to a few acts, or to a brief time, this is beside the nature of privilege. It is said: private, because privileges are regularly communicated with private persons; conceding a special privilege, because it is either against or beyond right.
DIVISION. Privilege is distinguished in many ways:
By reason of matter, there is had: a) a privilege against right, or beyond right, according as through it derogation is made from some law, or not. Thus, for example, exemption from the jurisdiction of the Ordinary is a privilege against right; the power of dispensing is beyond right. There is had b) a privilege either favorable, which confers a convenience upon the privileged person and brings inconvenience to no one, for example, the privilege of hearing Mass in time of interdict; or odious, which confers convenience on one and prejudice on another, for example, exemption from taxes, which burdens others (cf. n. 253, 2.).
By reason of the subject to whom it is conceded, privilege is real or personal. That is called real which is directly conceded to some thing, office, or condition distinct from the person: for example, to some altar, so that a plenary indulgence, applicable to the dead, may be obtained by the one celebrating upon it; likewise to a Bishop as such, or to his see or office, or to some community. Personal is that which is immediately given to a person by reason of himself, as the privilege of absolving from reserved cases conceded to some confessor.
By reason of cause, privilege is gracious or remuneratory, according as it is conceded without any respect to merits of the privileged person or of others, for example, parents, or on account of them. Again, it is conventional or pure, according as it is obtained with some pact intervening, or without this intervening.
By reason of form, privilege is of the living voice or written. A privilege of the living voice is that which is conceded orally, although, for obtaining faith in the external forum, it is consigned to letters and fortified by authentic testimony. A written privilege is that which is obtained through authentic writing. It is of diverse authority, according as it is enclosed in the Body of Law, or inserted in the Body of common right, as, for example, the privileges of Churches and clerics; or given outside the Body of Law, through a special rescript (Gennari, Quest. de droit can., q. 452).
By reason of duration, privilege is perpetual or temporal, according as it is conceded of itself without limit, or with limit, for example, for seven years, as long as I shall live, etc. (cf. n. 233).
There are some privileges which are conceded first and of themselves, without respect to others to whom the same privilege perhaps has already been given; and there are others which are conceded after the likeness, that is, according to the mode in which they have already been conceded to another. If these last are given equally principally, they are not changed, however much the privileges after whose likeness they were being conceded are increased or decreased; if they are given accessorily, indirectly, they take upon themselves the changes of the privileges first conceded.
With these things premised, we shall say a few things: 1. concerning the acquisition, 2. concerning the use, 3. concerning the interpretation, 4. concerning the cessation of privilege.