Chapter VIII. On Favorable Law, or on Privilege

A privilege is a constant and permanent grace conceded by a superior to certain persons or certain dignities, against or beside common law. - It is distinguished in many ways, for it is: 1st. personal, local, or real, according as it is conceded to a certain person, or to the inhabitants of a certain place, or to some thing, for example, to a certain Church; 2nd. against the law or beside the law, according as through it derogation is made from some law or otherwise; 3rd. favorable or odious, according as it benefits the privileged person with the burden of others excluded, or burdens others while favoring one.

I Say 1st. A privilege against the law can be conceded only by those who are able validly to dispense from the law, and indeed to subjects alone, no otherwise than if it were a question of dispensation, because it is a certain kind of dispensation. But a privilege beside the law, or a privilege improperly so called, can be conceded even to non-subjects, because it is not an act of jurisdiction, but an act of mere faculty and as it were a donation. Thus a Prince can concede to a foreigner the privilege of hunting in his territory.

I say 2nd. A favorable privilege is to be interpreted broadly; but an odious privilege ought to be of strict interpretation. Each is shown from law, and the common consent of the Doctors accords.

I say 3rd. No one is bound of himself to use a privilege, because each one can renounce his own right; yet sometimes by accident the privileged person is obliged to the use of the privilege: 1st. by reason of charity; thus one who has the faculty of absolving from reserved cases is bound to hear a sinner who has reserved sins and is placed in grave necessity; 2nd. by reason of the common good, namely when the privilege is not personal but real, attached to a place or dignity or state; thus all clerics ought to use the privilege of immunity, and regulars cannot renounce the privilege of exemption. - Cf. St. Alphonsus, Append. de privileg., nn. 3 and seq.

All these things are confirmed in the new Code: No one is compelled to use a privilege conceded only in his own favor, unless an obligation arises from another head (Can. 69).

I say 4th. § 1. Privileges can be acquired not only through direct concession of competent authority and through communication, but also through legitimate custom or prescription.

§ 2. Centenary or immemorial possession introduces the presumption of a conceded privilege (Can. 63).

Question 1. In what way does a privilege cease?

Response. § 1. Privileges cease through renunciation accepted by the competent Superior.

§ 2. Any private person can renounce a privilege constituted only in his own favor.

§ 3. It is not lawful for private persons to renounce a privilege conceded to some community, dignity, or place.

§ 4. Nor is it within the power of the community or body itself to renounce a privilege given to itself after the manner of law, or if the renunciation yields to the prejudice of the Church or of others (Can. 72).

When the right of the one granting is dissolved, privileges are not extinguished, unless they have been given with the clause: at our good pleasure, or another equivalent clause (Can. 73).

A personal privilege follows the person and is extinguished with him (Can. 74).

Real privileges cease through the absolute destruction of the thing or place; but local privileges, if the place is restored within fifty years, revive (Can. 75).

A privilege also ceases if, in the progress of time, the circumstances of things are so changed, in the judgment of the Superior, that it has become harmful, or its use becomes illicit; likewise when the time has elapsed or the number of cases for which the privilege was conceded has been completed, with the prescript of can. 207, § 2 remaining firm (Can. 77).

Question 2. In what place can one use his privilege?

Response. If in the concession some local restriction has been added, this is to be observed accurately. If such a restriction has not been added, in general one can use his privilege in the whole territory of the one granting; indeed he can also use it outside this territory if the privilege is personal. Nevertheless it must be noted that travelers, from general custom, can enjoy the privileges of the place through which they travel.¹

Note. - § 1. Habitual faculties which are conceded either in perpetuity or for a predefined time or a certain number of cases are reckoned among privileges beside the law.

§ 2. Unless in their concession the industry of the person has been chosen, or something else has been expressly provided, habitual faculties conceded by the Apostolic See to a Bishop or to others of whom in can. 198, § 1, do not vanish when the right of the Ordinary to whom they were conceded is dissolved, even if he has begun to execute them, but they pass to the Ordinaries who succeed him in governance; likewise those conceded to a Bishop also belong to the Vicar General.

§ 3. A conceded faculty carries with itself also the other powers which are necessary for its use; wherefore in the faculty of dispensing there is included also the power of absolving from ecclesiastical penalties, if any perhaps stand in the way, but only for the effect of obtaining the dispensation (Can. 66).

A privilege is to be judged from its own tenor, nor is it lawful to extend or restrict it (Can. 67).

In doubt privileges are to be interpreted according to the norm of can. 50; but that interpretation is always to be employed by which those enriched with a privilege may seem to have obtained some grace from the indulgence of the one granting (Can. 68).

¹ Cf. Addenda, p. 1142, n. 113.