§ II. On Privileges

(St. Alphonsus, Theologia Moralis, bk. I, Appendix II.)¹

¹ Cf. Suarez, De legibus, bk. 8; Wernz, Ius Decret., t. I, nn. 157-163; Putzer, Comment. in facultates apost., n. 1 sq.; Vermeersch, Epitome Iur. Can., 4th ed., t. I, n. 149 sq.; Van Hove, De la notion du privilege (in N. R. Th. 1922, p. 5 sq., 74 sq., 126 sq.).

I. Notion. Privilege can be taken actively and passively. Taken actively it is customarily defined: a private law granting a special benefit beyond or against the common law. Taken passively it is the right itself arisen from the stated law. It is said:

1. Law; namely, insofar as it is a stable ordering which confers on someone the faculty of acting beyond or against the common law, and imposes on others the obligation not to impede the privileged person in the use of the faculty.

2. Private law, because it confers the faculty on a particular person or community, which itself is part of a superior community, for example, on a religious order, clergy, etc. (St. Alphonsus, I, 1).

3. Granting a special benefit beyond or against the common law; thus, for example, the faculty of absolving from reserved cases is granted beyond the common law, while the privilege of a private oratory is granted against the common law.

Corollary I. Privilege differs: first, from dispensation; for this is always opposed to law and is generally temporary, while privilege can also be beyond law and of itself is perpetual (St. Alphonsus, loc. cit.); second, from license, which is rather according to law, since it places the condition required by law and is generally granted transiently. Privilege can also be against law and, as we have said, is of itself permanent.

Corollary II. Favors contained in common law, for example in the new Code, are only improperly called privileges, because they do not grant something beyond or against the law, but rather are rights established in law.

Corollary III. Dispositions made in view of the common good more than private advantage are called particular laws rather than privileges. Of this sort seems to be, for example, the constitution Provida (January 18, 1908), by which mixed marriages in the German Empire were subjected to a special regime. Others, however, hold dispositions of this sort made by way of law as true privileges, but think that privileges granted in this way, as regards their abrogation, are subject to the norms established for the abrogation of laws.¹

Corollary IV. It is disputed whether or not an indulgence is a true privilege.² Furthermore, among those who think that it is a privilege, or at least comes under the name of privilege, it is disputed whether indulgences also are included in the communication of privileges.³

¹ Thus Aertnys-Damen, Theol. Mor., 11th ed., I, n. 217.

² Piat, Praelect. Iur. Reg., II, p. 103.

³ Piat, loc. cit.

II. Division. Privilege is distinguished:

1. Into privilege against and privilege beyond common law. The former derogates from right or common law, as the exemption of a family from the jurisdiction of the pastor. The latter grants a favor, but is not opposed to any law, as the privilege of dispensing in vows. To this class from can. 66, § 1 belong "habitual faculties, which are granted either in perpetuity or for a predefined time or a certain number of cases" (cf. n. 99).

2. Into favorable and odious. The former is that which neither redounds to the burden of a third party, nor has some burden attached for the privileged person himself; the latter is that which brings a burden to another, or has some burden attached for the privileged person himself, as papal enclosure with an attached excommunication, which is granted by way of privilege.

3. Into affirmative and negative, according as it grants the faculty of doing something, as the privilege of dispensing, or of omitting something, as the privilege of not observing the fast.

4. Into personal and real, according as it immediately affects a person or a thing, for example, a place, dignity, or office.

5. Into gracious, remuneratory, and onerous, according as it is granted either from mere liberality, or in compensation for merits, or by way of an onerous contract, namely under a certain burden and with a reciprocal obligation of commutative justice.

6. Into a privilege granted motu proprio or at the instance or prayers of someone; likewise into a privilege given by an oracle of the living voice or in writing.

III. Author of privilege. Only a competent superior can confer a privilege. This is clear if there is question of a privilege granted against law; but a privilege is not said to be granted if a private person confers a favor on someone.

IV. Modes of acquiring privilege. "Privileges can be acquired not only through direct concession of the competent authority and through communication, but also through legitimate custom or prescription" (can. 63, § 1).

1. Direct concession. To this is equivalent confirmation in specific form; "wherefore if it is referred to a privilege invalidly first granted or meanwhile extinguished, the invalid concession is healed, and the extinguished privilege is restored, unless, by clauses added in the confirmation, there is made an extension or restriction. This force does not belong to confirmation of a privilege in common form, much less to the mere authentic renewal of instruments in which privileges were consigned in writing."¹

2. Communication, concerning which note:

a) Communication is a mode of acquiring privileges by which a privilege granted to one is extended to another by the ordering of an ecclesiastical Superior.

b) Communication is distinguished as twofold, namely, in equally principal form and in accessory form. Communication in equally principal form is communication by which a privilege granted to one is communicated with another so perfectly and independently as if it had first and directly been granted to him. The effect is chiefly had in this, that it begins to exist as though anew in the other privileged person, so that when the privilege is increased, diminished, or removed in the first privileged person, it is not increased, diminished, or removed in him to whom it was extended through equally principal communication. Communication in accessory form is communication by which a privilege granted to one is communicated to another in such a way that in all things it follows the vicissitudes of the prior privilege, as an accessory which follows the principal thing. Therefore, when the privilege is increased, diminished, or removed in the principal privileged person, it is likewise increased, diminished, or removed in him to whom it was extended only accessorily. Once these things have been explained, can. 65 is easily understood: "When privileges are acquired through communication in accessory form, they are increased, diminished, or lost by the very fact, if perchance they are increased, diminished, or cease in the principal privileged person; otherwise if they are acquired through communication in equally principal form."

c) "Through the communication of privileges... only those privileges are considered imparted which had been granted directly,² perpetually,³ and without special relation to a certain place,⁴ or thing,⁵ or person,⁶ to the first privileged person, regard also being had to the capacity of the subject to whom the communication is made"⁷ (can. 64).

3. Legitimate custom; concerning this note that the same conditions are required which we explained above where there was speech about custom (n. 194).

4. Legitimate prescription. What is required for it, see explained in the treatise on Justice.

Note. "Centenary or immemorial possession induces the presumption of a granted privilege" (can. 63, § 2).

¹ Wernz, Ius Decr., t. I, n. 160.

² Hence privileges which themselves have been acquired through communication are excluded.

³ Thus are excluded privileges granted for a time, which, as we warned above, are called privileges only in a broader sense.

⁴ For example, a privilege granted to a determined church.

⁵ Suppose a privilege granted to some miraculous image of the Blessed Virgin Mary.

⁶ For example, a privilege granted to some Superior General on account of personal merits is considered granted to the person, not to the dignity (cf. St. Alphonsus, n. 11).

⁷ Thus, for example, if to some lay religious family there were given a communication of privileges with a clerical religion, many privileges would certainly be excluded by the very nature of the matter, of which the lay religion is not capable.

V. Interpretation of privilege. 1. A privilege must be estimated from its own tenor, "nor is it licit to extend or restrict it" (can. 67).

2. In doubt, privileges are to be interpreted according to the norm of can. 50; but that interpretation must always be used by which those enriched with the privilege seem to have obtained some grace from the indulgence of the one granting (can. 68). Can. 50 establishes thus: "In doubt, rescripts which refer to lawsuits, or harm rights acquired by others, or are opposed to a law for the advantage of private persons, or finally were obtained for the acquisition of an ecclesiastical benefice, receive strict interpretation; all the rest broad."

VI. Use of privilege. 1. If a privilege has been granted principally for the common good, there is an obligation of using it, once the things to be posited have been posited. Of this sort is the privilege of dispensing, likewise privileges granted in favor of a state, as the privileges of clerics and religious.

2. If it has been granted for the private good of the privileged person, as the privilege of satisfying the precept of hearing Mass in a private oratory, of itself there is no obligation of using it. Yet by accident there can be an obligation, suppose if the privilege has been granted to a community and the superior, or due conformity with others, commands its use (St. Alphonsus, n. 3; III, 319, dub. 3, and 324). Hence can. 69: "No one is compelled to use a privilege granted solely in his own favor, unless an obligation arises from another head."

It is disputed whether there is an obligation of using a privilege if it removes an impediment to the observance of a law; for example, whether a sick person who has the privilege of a private oratory, and can conveniently hear Mass there on a feast day, but not in church, is held to do this. Now with St. Alphonsus (loc. cit.), Lugo,¹ Wernz,² and others, it seems this must be affirmed. For the Church is considered to oblige all those whom she does not exempt from the law to fulfill it, if they conveniently can. Hence the privilege must be interpreted from the mind of the Church in such a way that it is not opposed to that universal principle. This is confirmed by can. 69 cited.

Objection. Privilege is given as a favor, not as a burden.

Response. That privilege by accident induces a burden does not prevent it from having been given as a favor and from retaining the character of a favor. Thus in the proposed case it grants the faculty of fulfilling the precept in a private oratory, and this faculty does not belong to others.

Note. If some privilege or indult has been granted to confessors, it is licit, unless the contrary is signified, to use it even outside confession, because the quality of confessor is regarded rather than the act of confession (St. Alphonsus, n. 4).

¹ De Euch., disp. 22, nn. 14 and 17.

² Ius Decr., I, n. 161.

VII. Cessation of privilege. "A privilege, unless something else is established, is to be considered perpetual" (can. 10). But a privilege ceases:

1. Through revocation by the superior; concerning this the Code establishes:

a) Privileges contained in the new Code are revoked through a contrary general law (can. 71). The reason is that the aforesaid privileges, by the very fact that they have been inserted into the Code, have become common law. Hence they are revoked through a contrary general law, even if special mention of them is not made.

b) As regards privileges not contained in the new Code, "the prescription of can. 60 is to be observed" (can. 71). Considering this canon, privileges not contained in the new Code:

alpha) Are revoked through a particular act of the Superior, and one signified to him who had obtained the privilege (can. 60, § 1).

beta) Are not revoked through a contrary law, unless either this is signified through a special clause added to the law, or the law contrary to the privilege has been passed by the superior of him who granted the privilege (can. 60, § 2).

As regards the revocation of privileges, observe:

First, a gratuitous privilege can always be validly revoked, but not licitly without a just cause; one granted by way of donation, however, cannot validly be revoked without a proportionate cause, which ordinarily must be public. Apply the same to a remuneratory privilege; here, however, a graver cause is required.

Second, an onerous privilege, especially a conventional one, cannot validly be revoked without a just cause; and in addition compensation must be given, at least where there is question of temporal goods (cf. St. Alphonsus, n. 15).

2. Through renunciation by the privileged person; concerning this can. 72 says:

a) Privileges cease through renunciation accepted by the competent Superior (can. cit., § 1).

b) Any private person can renounce a privilege constituted only in his own favor (can. cit., § 2).

c) Private persons are not permitted to renounce a privilege granted to some community, dignity, or place (can. cit., § 3).

d) Nor is it within the power of the community or group itself to renounce a privilege given to it by way of law, or if the renunciation would yield to the prejudice of the Church or of others (can. cit., § 4). Of this sort are the privileges of canon and forum, and others which regard ecclesiastical immunity.

3. Through death or cessation in law of the superior; concerning this can. 73 says: "When the right of the one granting is dissolved, privileges are not extinguished, unless they were given with the clause: at our good pleasure, or another equivalent clause." Hence if it is said "at the good pleasure of the Holy See," the privilege does not expire, because the Holy See does not die.

4. Through the destruction of the subject in which it inheres; concerning these, canons 74 and 75 say:

a) "A personal privilege follows the person and is extinguished with the person" (can. 74). Here, however, note that a privilege granted to a dignity is not a personal privilege, but a real one, and so is not extinguished with the person.

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

5. Through non-use or contrary use. "Through non-use¹ or through contrary use² privileges not burdensome to others³ do not cease; but those which yield to the burden of others⁴ are lost if legitimate prescription or tacit renunciation accedes" (can. 76).

6. Through cessation of the cause. "A privilege also ceases if, in the progress of time, circumstances change so, in the judgment of the Superior, that it has become harmful, or its use becomes illicit" (can. 77). Therefore this title has force only when the privilege, by judgment of the Superior, ceases contrariwise, as it is said; not truly when it ceases only negatively, suppose when the reason on account of which the privilege was granted indeed no longer subsists, but nevertheless the use of the privilege has not become harmful or illicit. Yet a privilege ceases which was evidently given continuously dependently on a cause, if the cause no longer subsists (St. Alphonsus, n. 14).

7. Through lapse of time. "Likewise a privilege ceases when the time has elapsed or the number of cases for which the privilege was granted has been completed, with the prescription of can. 207, § 2 remaining firm"⁵ (can. 77).

8. Through abuse. "He who abuses the power permitted to him by privilege deserves to be deprived of the privilege itself; and the Ordinary should not omit to warn the Holy See if someone gravely abuses a privilege granted by the same" (can. 78). Therefore it is required that the sentence of a competent judge intervene.

Note 1. "Although privileges orally obtained from the Holy See aid the petitioner himself in the forum of conscience, nevertheless no one can claim the use of any privilege whatsoever against anyone in the external forum unless he legitimately proves that the privilege itself was granted to him" (can. 79). Moreover, the ordinary mode here of showing or proving the existence of a privilege is that testimony be made through an authentic writing composed by a competent official, or by at least two trustworthy witnesses.

Those officials for a privilege granted by the Holy See are the Cardinal Prefects of the Sacred Congregations and Secretaries in the Roman Curia, when by reason of their office, by commission of the Pontiff, they grant a grace or declare it to be authentic. A similar document composed by a Superior General or by a Procurator does not suffice. Nevertheless all Cardinals enjoy the privilege "of making faith in the external forum when testifying concerning a pontifical oracle" (can. 239, § 1, n. 17).

The testimony of two witnesses suffices because such testimony is generally admitted in the external forum.

Note 2. As regards habitual faculties granted to Bishops and to others who, from can. 198, § 1, come under the name Ordinary, can. 66 establishes:

First, unless in their concession the industry of the person was chosen or something else was expressly provided, habitual faculties granted by the Apostolic See to a Bishop or to others about whom in can. 198, § 1, do not vanish when the right of the Ordinary to whom they were granted is dissolved, even if he himself had begun to execute them, but pass to the Ordinaries who succeed him in governance; likewise those granted to a Bishop also belong to the Vicar General (can. 66, § 2).

Second, a faculty granted carries with it also other powers which are necessary for its use; wherefore in the faculty of dispensing there is also included 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, § 3).

Habitual faculties, moreover, are understood as those which are granted either in perpetuity or for a predefined time or a certain number of cases (cf. can. 66, § 1).

¹ For example, someone has the privilege of seeking a tax; non-use is had when he does not seek it.

² For example, someone has the privilege of not paying a tax; contrary use is had if he does pay it.

³ As of the privilege of a private oratory or of not reciting the Breviary.

⁴ As the privilege of seeking a tax.

⁵ Can. 207, § 2 has these words: "But when power has been granted for the internal forum, an act placed through inadvertence, after the time has elapsed or the number of cases has been exhausted, is valid."