Section — Prümmer, Manuale Theologiae Moralis
§ 3. On the Cessation of the Obligation of Law by Privilege
Preliminary Note. We treat soberly and briefly of privileges, because this matter pertains rather to Canon Law than to Moral Theology. Therefore, for fuller doctrine, canonists are to be approached, and if there is question of particular privileges, before all else the Indult itself, which granted the privilege, is to be inspected.
263. Notion. Privilege is taken either objectively or subjectively, and again in either mode either broadly or strictly.
A privilege, taken objectively and broadly, is any particular law, whether favorable or odious; for privilege by force of the word is nothing other than a private or special law (a law of exception, Ausnahmegesetz). In this sense the rights of bishops, pastors, minors, wives, etc., can be called privileges.96
A privilege, taken objectively and strictly, can be defined: a private law granting a special favor against or beyond common right; or more briefly: a favorable private law (a special right, Vorrecht). Therefore a privilege is a law, and accordingly it ought to have all, at least essential, conditions of law. Hence it ought to be:
1. Something stable and permanent; and therefore it is distinguished from a dispensation or indult or some grace, which for the most part is conceded not in a stable and permanent mode, but transiently.
2. Useful to the community. Although a privilege at first sight may not seem useful and favorable except to some particular person or community, nevertheless in reality it tends to the utility of the whole state or of the Church. Thus, for example, the privileges of Regulars, considered in passing, seem to be harmful to the authority of bishops and to the influence of pastors, yet in reality they serve the greatest utility of the whole Church. For without those privileges Regulars could not labor so expeditiously and easily for the salvation of the faithful, nor even assist bishops and pastors so fruitfully in procuring the salvation of souls. Likewise the privileges of clerics, namely the privileges of canon, forum, and immunity, in appearance are favorable only to clerics alone; but in reality they tend to the greatest utility of the whole Christian religion. - But if certain privileges truly were not useful to the common good, then they are called exorbitant and would have to be abrogated as soon as possible.
3. Established by him who has care of the community. Hence no one can grant a privilege properly so called except he who is the supreme legislator of some perfect and autonomous community, namely the Pope for the whole Church, the king for his kingdom, the bishop for his diocese, etc.
Note. Sometimes privilege is taken in an improper sense; and then it is nothing other than some special favor granted by a superior against or beyond common right. In this sense we speak of the privilege of a portable altar, of a private oratory, etc. In this sense also in the Code of Canon Law there are reckoned among privileges, besides the law, indults or habitual faculties (e.g., to an Ordinary), which are granted either in perpetuity or for a predefined time or for a certain number of cases.97 - Sometimes privilege is confused with dispensation; yet this confusion is to be avoided. For every privilege properly so called is a true law, as has been said; on the contrary, dispensation is a relaxation of the law, or at least of its obligation. In the new Code there is no accurate definition of privilege.
A privilege, taken subjectively, is the faculty itself of acting according to the privilege considered objectively.
96 Cf. c. 8, C. 9, q. 3.
97 Cod. iur. can. c. 66, § 1.
264. Divisions. Very many divisions of privileges are customarily adduced, of which the more principal are the following:
1. By reason of the subject: a personal and a real privilege. The first is that which primarily and directly is granted to some person (whether physical or moral), and accordingly follows this person everywhere and is extinguished with him, for example, the privilege of reciting the Rosary in place of the Breviary. - The second is that which primarily and directly is granted to some thing, say to a place, office, dignity, etc., and by means of this thing to determinate persons. - In the likeness of real privileges are held those faculties which are customarily delegated habitually to bishops and major superiors of religious orders. Accordingly those faculties do not cease by the death or removal of the indultary.98
2. By reason of the object: a) a favorable and an odious privilege. The first confers a grace or benefit upon the privileged person, but brings prejudice to no one, as for example the honorary privileges of certain offices. - The second is that which, by favoring one, at the same time brings an inconvenience to another (but not to the common good), for example, exemption from taxes granted to some persons; for if some are not bound to pay taxes, greater taxes are imposed upon others for paying common expenses.
b) A privilege against and beyond right. A privilege against right derogates from common right. Such a privilege is, for example, the exemption of bishops and other Ordinaries from the ecclesiastical prohibition of books (c. 1401). A privilege beyond right is that which indeed is given by no common law, but is also prohibited by no common law, as are various habitual faculties of dispensing, absolving, etc. (c. 66, § 1).
3. By reason of the motive: a gracious and a remuneratory privilege. The first is granted from the mere liberality of the superior; the second is granted as a reward and recompense for the merits of oneself, or of parents, or of blood-relatives, or of relations.
4. By reason of the mode in which it is granted: a privilege granted motu proprio or "at the instance." If the Pope in the concession of a privilege inserts the formula motu proprio, then such a privilege is a most special favor, which is of broad interpretation and is not invalidated by the defect of obreption and subreption. - But a privilege which was granted "at the instance" or "at the prayers" is to be understood and interpreted according to the petition previously presented.
5. By reason of relation to other privileges: a privilege granted "first and through itself" and "after the likeness." The first is granted without respect to a privilege otherwise given; but the second is given in that mode in which it has already been granted to another. But a privilege "after the likeness" is again twofold: equally principally and relatively. A privilege is granted equally principally if it is bestowed just as if it had been granted first and through itself. Therefore such a privilege is not judged revoked, although another privilege, after the likeness of which it had been granted, has been abolished. A privilege is said to be granted relatively if it is communicated because of the connection which the privileged person has with others who already before had been privileged. This distinction of privileges indeed was often used in antiquity in the so-called communication of privileges; but according to present discipline it is no longer of so great practical value.
98 Cf. S. Off. d. 24 Nov. 1897; 20 Apr. and 23 June 1898; 3 May and 20 Dec. 1899; Cod. iur. can. c. 66, § 2.
265. Acquisition of privileges. Privileges can be acquired in a threefold mode: 1. by direct concession; 2. by communication; 3. by prescription or custom.99
1. No one can directly grant some privilege except he who has the power of making laws;100 for a privilege is a private law, as was said above. Hence those things which are necessary for establishing laws are also required for the direct concession of privileges.101
2. By communication those privileges are acquired which are granted to some moral person or to some state, with which another moral person or institute has the so-called communication of privileges by force of some Pontifical indult. Among approved religious Orders there existed a most ample communication of privileges, and accordingly privileges which had been granted by the Supreme Pontiffs to one Order were by that very fact judged to be given also to other Orders; unless, however, in some particular case the Supreme Pontiff had expressly declared that the privilege granted was not communicable. For the future such communication of privileges among religious Orders is excluded.102 - To treat of the communication of privileges pertains rather to canonists than to moralists. - In these most recent times the Roman Curia seems more and more to limit the communication of privileges.
3. By prescription or custom a privilege is acquired, just as by that means also some law is abrogated.103 Hence those conditions are required for the acquisition of privileges which are necessary for the abrogation of some law.104 Centenary or immemorial possession induces the presumption of a privilege granted.105
99 Cod. iur. can. c. 63.
100 Certainly bishops also and other prelates having legislative power can grant privileges in their own laws, but according to modern discipline almost only the privileges of the Supreme Pontiff are of practical moment.
101 Cf. above n. 143.
102 Cod. iur. can. c. 613, § 1.
103 Cf. c. 9, X, 1, 31; c. 26, X, 5, 40.
104 Cf. below n. 275 sqq.
105 Cod. iur. can. c. 63, § 2.
266. Interpretation of privileges. All those things are to be applied which above, n. 229 sqq., were said concerning the interpretation (and dispensation) of law. Generally it can be said: A privilege is worth as much as it sounds, or as the Code of Canon Law c. 67 says: "A privilege is to be estimated from its own tenor, nor is it permitted to extend or restrict it." But if some doubt arises, then privileges are to be interpreted broadly, if they are a) favorable, b) remuneratory, c) granted motu proprio, d) given to some Order or religious community, e) if they are contained in the Code of Canon Law. - But privileges are to be interpreted strictly, if they are odious.106
106 Ibid. c. 68.
267. Non-use of privileges. 1. Purely personal and favorable privileges, i.e., those which tend solely to the utility of the privileged person alone, can be freely renounced or not employed in practice, unless an obligation arises from another head.107 The reason is that favors are not to be forced upon persons, nor ought they to be a burden. Hence, for example, an infirm priest, who cannot go out from home to celebrate and therefore has received the privilege of establishing a private oratory, is not bound to establish it, in order that on days of precept he may celebrate; indeed, if he has already erected an oratory, in rigor he is not bound, according to some theologians, to celebrate there on those days, but is excused from celebrating Mass,108 provided, however, that there is present a reasonable cause of not using the privilege.
2. Privileges which are favorable to a community, or which are granted to some state, cannot be licitly and validly renounced by an individual person.109 Hence, for example, a cleric cannot for his own person renounce the privilege of canon granted to the clerical state;109a nor can a Religious renounce the privileges of his Order. The reason is that privileges of this kind in no way depend on the free choice of an individual man, and their renunciation or even non-use would tend to the detriment of the community. - Likewise a confessor having the privilege of absolving from reserved cases is bound to use it toward a penitent rightly disposed. For a penitent rightly disposed and confessed has a right to absolution, and accordingly the confessor is bound to absolve him, if he has the faculty of absolving. The matter is otherwise if the confessor judged that, by delay of absolution and the necessity of recurring to the superior, the penitent would be more efficaciously deterred from relapse. Then he can laudably abstain from the use of his privilege. But deservedly Lehmkuhl says:110 "But in practice it can often be doubted whether such a remedy helps, since on the contrary it can harm."
3. By non-use a purely favorable privilege never ceases; but, after the time required for the prescription of laws has elapsed, a privilege which is opposed to the right of others ceases.111
107 Ibid. c. 69 and 72.
108 Thus Noldin (De princ. n. 195) after Lehmkuhl (Cas. consc. I, n. 128 sqq.), who nevertheless rightly with St. Alphonsus (Theol. mor. l. 3, n. 324) limits this opinion to ecclesiastical law alone. For if such a priest for a long time could not celebrate Mass outside the house, but could at home, he would be bound to use his privilege, because by divine law he ought sometimes to celebrate or at least to hear Mass. Below II, 485, discussion of this matter will return.
109 c. 12, X, 2, 2; c. 36, X, 5, 39. Cod. iur. can. c. 72, § 3.
109a Cod. iur. can. c. 123.
110 Cas. consc. I, n. 132.
111 Cod. iur. can. c. 76.
268. Cessation of privileges. Privileges from their nature (like laws) are judged perpetual,112 but they can cease in many ways, for example, through revocation legitimately made by a superior, through renunciation by the privileged person accepted by the competent superior, through cessation of the cause on account of which they were given, through the death of the privileged person, through the complete destruction of the thing to which the privileges were attached, through abuse, through prescription made against them. - There is no leisure here to treat of all these, both because this matter pertains to Canon Law, and because in individual matters it is better to treat of the cessation of privileges. Especially concerning the revocation of privileges, concerning its possibility, quality, and extension, canonists discuss at great length and in many things do not agree.113 Briefly we note the following:
1. Privileges which by force of a Concordat were granted to some kingdom are never judged revoked, unless this has been said in express words. For Concordats (at least those entered into recently between the Holy See and various governments) take on the character of a bilateral pact,114 which indeed, alas, is not rarely violated by civil governments; but which is never injured in an undue mode by the Holy See. Accordingly the Holy See is not judged to revoke concessions made, unless this is expressly said. Therefore new laws do not revoke privileges granted by force of Concordats.115
2. According to the current discipline of the Roman Curia, every preceding privilege (granted outside a Concordat) is revoked if some contrary law is made absolutely and universally.116 Hence, for example, by the Decrees of the S. C. on Religious given on 3 February and 5 August 1913 concerning the confession of religious, all whatsoever previous privileges are judged revoked. Besides, for greater clarity and security new laws are accustomed to contain most general derogatory clauses, for example, "notwithstanding any privileges whatsoever, even those worthy of special mention." In ancient times some institutes and religious places obtained an Indult by force of which their privileges could never be revoked unless mention had been made of them word for word in the revocation. These indeed today seem to be obsolete (unless, however, there is question of liturgical law).
3. Real privileges cease through the absolute destruction of the thing or place; but local privileges, if the place is restored within fifty years, revive.117 A personal privilege follows the person and is extinguished with him,118 for example, the personal privilege of a domestic oratory.
112 Ibid. c. 70.
113 See Joan. Crus, De statu relig. 2, c. 3.
114 Cf. our Manuale iur. can. q. 24.
115 Cod. iur. can. c. 3.
116 Ibid. c. 4 and 71.
117 Ibid. c. 75.
118 Ibid. c. 74.