Article — Noldin, Summa of Moral Theology
Article Third. On Privilege.
192. Definition. 1. Privilege considered objectively is a private law conceding a special favor against or beyond common law.
a. Privilege has the character of law, because it is a norm according to which someone, from the concession of a superior, can operate permanently against or beyond common law, and especially because the whole community is bound to acknowledge the privilege and not to impede the privileged person from using it.
b. It is called a private law because it is not conceded to the whole community, but either to one person or to a part of the community which is bound by the law itself.
- Privilege considered subjectively is a special and permanent faculty conceded by a superior in favor, against or beyond common law.
a. It is called permanent because it is not given for a passing act or for a short time, as dispensation or faculty generally accepted is, but because by its nature it has a certain stability, even if it is not always perpetual. It is said to be conceded by a superior because a private person cannot concede privileges, but can only give permissions, and not against the law.
b. Privilege differs from dispensation: a. dispensation is only against the law; privilege can also be beyond the law; b. dispensation is generally conceded for a passing act, but privilege is a stable and permanent faculty; c. dispensation can be conceded either to an entire community or to an individual person, whether physical or moral; privilege is conceded only to an individual person, whether physical or moral. Therefore a dispensation granted to an individual person generally does not differ from a privilege against the law.
193. Division. Privileges are divided: 1. By reason of the matter: a. into privileges against the law, if through them some law is derogated, as is exemption from paying taxes; and beyond the law, if through them no law is derogated, as is the power of dispensing; b. into favorable privilege, which brings advantage to the privileged person but inconvenience to no one, as the privilege of saying Mass in a private oratory; and odious privilege, which brings advantage to one but inconvenience to another, as exemption from paying taxes, from the jurisdiction of the ordinary.
- By reason of the subject to whom it is conceded, into personal and real privilege. A personal privilege is conferred directly and immediately on some person by reason of himself, on account of knowledge, dignity, etc. This follows the person and expires with him, as the power of absolving from censures. A real privilege is directly and immediately conferred not on the person but on a thing, from which it redounds to the person. This privilege adheres to the thing, passes with it to the person to whom the thing pertains, and also expires with the thing.
By the name of thing is understood not only a corporeal thing, as a church or monastery, but also an incorporeal thing, as a moral person (college, community), office, dignity, state, a quality separable from the person, as a doctorate, etc. To this class belong, e.g., indulgences annexed to a church, altar, cross, rosary, etc.; besides these, privileges conceded to various communities (religious orders, confraternities) or diverse states (clerics, bishops, etc.).
By reason of the cause on account of which it is conferred, into gracious privilege, which is conceded from mere grace; remunerative privilege, which is conceded in consideration of some merit or service performed by the privileged person or by others, e.g. parents; and onerous privilege, which is conceded through the intervention of some pact for obtaining services.
By reason of the mode in which it is conceded, into a privilege given motu proprio, which is conceded without petition, and one given at instance, to conceding which the superior is induced by the prayers of the supplicant.
By reason of the end on account of which it is conceded, into common privilege, which is conceded to a community first and of itself for the good of the community, so that its use falls to the good of the community, as the privilege of the canon, which has been conceded to clerics, or of exemption, which has been conceded to religious orders; and into private privilege, which is conceded to a private person or even to a community, but for the good of individuals.
194. On the concession of privilege. 1. Only the legislator, or his successor, or the superior of both, can concede a privilege, whether it is a privilege against the law or beyond the law. For if it is against the law, only the legislator can exempt a subject from the law; and if it is beyond the law, only the legislator can impose on the community the obligation of not impeding the privileged person in the use of the privilege.
Privilege can be conceded either directly by a legitimate superior, or indirectly through communication of privileges, namely when a privilege conceded to one is also extended to another; thus communication of privileges exists among certain religious orders.
A privilege against the law can be conceded only to a subject, because this concession is an act of jurisdiction, which can be exercised only upon subjects; but a privilege beyond the law can also be conceded to others who are not subjects, provided the matter is subject to the legislator conferring the privilege, because this concession has the character of a donation, of which even one who is not a subject is capable.
In order that a privilege be valid, a just cause for conceding it is not required, because it depends merely upon the will of the legislator whether he wishes someone to be exempt from the common law; but in order that a privilege be licit, a just cause is required. For a privilege against the law conceded without a just cause injures legal and distributive justice; and a privilege beyond the law conceded without a just cause is an act of prodigality, which is illicit.
195. On the use of privilege. 1. Everyone is bound to use a common privilege, namely one which has been conceded principally for the common good, nor can he renounce it, because it is not lawful to do anything against the common good; of this kind are the common privileges of clerics, bishops, regulars, etc.
- A private privilege which has been conceded to a private person for private good of itself binds no one to use it, just as no one is bound to use his own right, because a privilege is given as a favor, not as a burden; nevertheless, accidentally the privileged person is bound to use it if non-use would fall to the damage of another, as if someone were unwilling to use the faculty of absolving from reserved cases.
If a sick priest, who cannot leave the house to celebrate, has received the privilege of establishing a private oratory, he is not bound to establish it so that he can celebrate on Sundays and feast days: if he has erected the oratory, in strictness he is not bound to celebrate on days of precept, but is excused from hearing and celebrating Mass.1
- A private privilege which has been given to a community for the good of individuals cannot be renounced by individuals, but the community alone can renounce it; but individuals of themselves are not bound to use it, although accidentally they can be bound to this, both if a legitimate superior enjoins the use of the privilege on individuals, and by reason of conformity with others.
1 Cf. Lehmkuhl, Casus consc. I. n. 128 ss.
196. On the interpretation of privilege. 1. A favorable privilege is to be interpreted broadly; yet it is never lawful to interpret it so broadly that the interpretation becomes unjust or, on account of similarity of reason, is extended to persons or causes in no way comprehended in the privilege.
- An odious privilege, insofar as it is odious, is to be interpreted strictly; nevertheless the restriction must not be so great that the privilege is rendered useless.
Yet an odious privilege is to be interpreted broadly: a. if it was conceded by the superior motu proprio; b. if it was given in favor of divine worship; c. if it was given to some order or religious community. The reason for this last is that such a privilege is judged to be remunerative for services performed and therefore most favorable.
- In the interpretation of any privilege whatever the propriety of the words must always be preserved, even if they are to be taken now according to a broader, now according to a stricter signification: for privileges do not operate more than the words signify.
197. On the cessation of privilege. Privilege, equally as dispensation, ceases when the cause on account of which it was given ceases. Besides:
A privilege ceases by the fact itself: a. by the destruction of the person to whom a personal privilege has been conceded, or by the destruction of the thing to which a real privilege has been attached; but it is required that the thing be wholly destroyed: for if a church or altar or confraternity is transferred to another place, the privilege also is transferred. b. By the lapse of time, if the privilege was given for a time, and by the cessation of the condition, if the privilege had been given under a condition.
A privilege which is opposed to the right of others ceases by non-use or contrary use, and indeed by the space of time which suffices for prescription. For those things which have been established by law concerning the loss of right by means of prescription are valid also concerning privileges which are a burden to others. But other privileges, which confer favor only on the privileged person without redounding to the burden of others, as the privilege of celebrating before dawn, do not cease even through non-use of the longest time.
Privilege is lost also through abuse. He is said to abuse a privilege who takes from it an occasion of sinning. Yet by abuse a privilege is not lost of itself and by the fact itself, but generally only insofar as a just cause is provided to the one granting for revoking it.
- By free and express renunciation on the part of the privileged person.
a. In order that renunciation be valid, it is required that he be able to renounce the privilege. But anyone can renounce a privilege which has been conceded only in his favor; but a particular person cannot renounce a privilege which has been conceded principally in favor of the Church or of some community. Therefore a cleric cannot renounce the privilege of the canon, not even for himself.
b. Renunciation is either tacit or express. The former is made by non-use or contrary use. In order that express renunciation be valid, it must be known to the one granting and approved by him: for since only the legislator can impose a law, the privileged person otherwise would not again be affected by the obligation of the law.
- By express or tacit revocation of the one granting, or of his successor, or of his superior.
a. Express revocation is made through revocatory clauses inserted in a law, in which manner the revocation of many privileges was made by the Council of Trent.
Derogatory clauses are of two kinds, general: notwithstanding privileges, and special: notwithstanding any privileges whatever, notwithstanding privileges even worthy of special mention, and the like. By a general clause these are not revoked: a. remunerative privileges, such as the privileges of religious are judged to be; b. privileges conceded with a clause that they not be revoked unless special mention of them is made; c. privileges conceded by a general council. But by a special clause even these are judged revoked.
b. Tacit revocation is made through a new law, by which all contrary privileges contained in common law are revoked, even without a revocatory clause.
In order that a privilege be revoked by a new law, the legislator must be presumed to know the privilege; now he is judged to know privileges which are contained in common law; but he is judged to be ignorant of special privileges which are not contained in common law. Therefore privileges contained in common law are revoked through a new law, but special privileges are not revoked unless special mention of them is made.
- Privilege does not cease by the death of the one granting: for by the general rule a grace made is not extinguished by the death of the one granting. Therefore by the death of the one granting a privilege ceases in a twofold case: a. if it was granted for the time of the life of the one granting or with the clause at our good pleasure; b. if it contains a grace to be made and the matter is still intact.