§ 1. On the Acquisition of Privilege

250. Privilege is acquired either directly, through the concession of a Superior or through legitimate custom; or indirectly, through communication.

1. DIRECTLY. It belongs to legislative power, and to that alone, to concede privileges: both because the legislator alone can exempt from laws, and because others are to be obliged not to impede the privileged person in the use of the grace. A privilege against right can be conceded by a legislator only to subjects, because it imports dispensation; whence, against common right, the Pontiff alone is able to grant privileges. But privileges beyond right can be conceded even to non-subjects, because such a concession is after the likeness of a donation (Bened. XIV, de Syn., l. 7, c. 9, n. 3).

"In order that a privilege derogate from common right, a DEROGATORY CLAUSE is not required; for the prince is presumed already to know the common laws. Nevertheless, exception is made: 1. if the privilege could not obtain its effect without this express derogation; 2. if in the law from which derogation is made there was appended the clause: notwithstanding any privilege whatever; this is understood provided that in the privilege there is not present the clause: from certain knowledge, or from fullness of power; 3. if the privilege is against some custom, or municipal or local law: for these are not derogated unless special mention is made of them" (de Privil., n. 2).

2. INDIRECTLY. Privilege is acquired through communication, when a Superior extends a privilege conceded to one also to another; thus, for example, among Mendicant Orders there is made a communication of privileges (ibid., n. 9).

There is given a twofold COMMUNICATION, namely in common or ordinary form, and in special or extraordinary form. Through communication in common form only those privileges are customarily conceded which are of easy concession, according to the rule of right: "In a general concession there do not come those things which one would not plausibly be about to concede in species." But through communication in special form all and singular privileges are conceded, even unusual ones and those which are of rare and difficult concession.

The signs from which this special form is recognized are had in certain clauses which, even from most ancient time, are customarily employed in Apostolic concessions; such as: from proper motion, from certain knowledge, from fullness of power, in like manner, equally and principally, etc. (ibid., n. 5).