Privileges

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.

2. 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.

2. 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.).

3. 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.

4. 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.

5. 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.

2. 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.

3. 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.

4. 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.

2. 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

3. 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.

2. 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.

3. 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:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

A privilege is, as it were, a private law which grants a special favour to some person.

It is a law, because although as a general rule no one is bound to use a privilege, since what is granted as a favour should not become a burden and a restriction to liberty, yet it lays on all the obligation of respecting the privilege, and of doing nothing contrary to it. Moreover, those privileges which are granted not to individuals, but to bodies of men like clerics and religious, cannot be dispensed with or used at the good pleasure of members of the privileged bodies.

Individuals cannot renounce the privileges of their order, but they are bound to act in accordance with them.

A privilege is against the law if it derogates from the law in favour of the privileged person; it is beside the law if there be no law from which it derogates.

The lawgiver to whom the law is subject can alone grant a privilege against the law, and within the territory subject to his jurisdiction. Within that territory all, whether subjects or strangers, may enjoy the privilege; no one may enjoy it outside the territory of the grantor, unless it be in the nature of a personal dispensation from the law. A privilege which is against no law may be granted to anyone.

A personal privilege is directly and immediately granted to a physical or moral person; a real privilege is granted directly and immediately to a place, office, dignity, or thing, and mediately to persons with respect to the place, office, dignity, or thing.

Privileges are to be interpreted according to the terms in which they are granted. And thus if a privilege is granted by the Pope to a confessor by which he may absolve from "cases reserved to the Holy See, he cannot thereby absolve from specially reserved cases, much less from the cases most specially reserved to the Holy See, and which can only be absolved by faculties specially delegated by the Holy See.

Privileges granted to corporate bodies, such as Religious Orders, inasmuch as they are rewards for services rendered to the Church, and are for the common good, admit a wide and favourable interpretation. Even privileges granted to individuals, if they cause no prejudice to others, such as leave to eat meat on days of abstinence, receive a wide interpretation. Personal privileges, however, which benefit the privileged while curtailing the rights of others, as exemption from paying tithes, are regarded as a wound inflicted on the law which should be equally observed by all, and so they receive a strict interpretation.

Although privileges are in general granted in perpetuity, yet they cease in many ways: by revocation of the competent superior, by renunciation accepted by the competent superior, by such change in circumstances that in the judgement of the superior they have become harmful; a personal privilege is extinguished by the death of the privileged person, real privileges cease by the total destruction of the thing or place, but the latter revive if the place be restored within fifty years; they cease also by the lapse of the time or the completion of the number of cases for which the privilege was given (Can. 72-77).

On the privileges of the clergy see the Code of Canon Law, Canon 118 ff.

Religious Orders have at different times received very ample privileges from the Holy See, so as to enable them to work for God and the Church with the greater freedom and fruit according to their Institute. These privileges are granted immediately to the religious superiors, and are by them communicated as occasion requires to their subjects. The regular or mendicant Orders, who take solemn vows, are exempt from the jurisdiction of the Ordinaries, and subjected immediately to the Holy See. Exemption, however, and many other privileges of religious have been largely curtailed, especially since the time of the Council of Trent, and now, as far as their work among the faithful is concerned, and their public conduct, regulars are to a great extent subject to the authority and correction of the Ordinary.

Impediunt.—As also do those who hinder with effect in any way the exercise of ecclesiastical jurisdiction by having recourse to any sort of lay authority. Canon 2341 VII. Si quis contra praescriptum [privilegii fori] ausus fuerit ad judicem laicum trahere aliquem ex S. *(If anyone, against the prescription of the privilege of the forum, shall have dared to drag before a lay judge any one of the Most Holy)*R.E. Cardinalibus, vel Legatis Sedis Apostolicae, vel officialibus majoribus Romanae Curiae, ob negotia ad eorum munus pertinentia, (Cardinals, or Legates of the Apostolic See, or the major officials of the Roman Curia, on account of business pertaining to their office,) vel Ordinarium proprium, contrahit ipso facto excommunicationem Sedi Apostolicae speciali modo reservatam. (or his own Ordinary, contracts ipso facto an excommunication reserved to the Apostolic See in a special manner.)

In divinis —In divine worship, not in secular matters. Canon 2341 IV. Si quis contra praescriptum [privilegii fori] ausus fuerit ad judicem laicum trahere . (If anyone, against the prescription of the privilege of the forum, shall have dared to drag before a lay judge) . . alium Episcopum etiam mere titularem, aut Abbatem vel Praelatum nullius, vel aliquem ex supremis religionum juris pontificii Superioribus excommunicationem latae sententiae Sedi Apostolicae simpliciter reservatam incurrit. (another Bishop even merely titular, or an Abbot or Prelate nullius, or one of the supreme Superiors of religious orders of pontifical right, incurs an excommunication latae sententiae simply reserved to the Apostolic See.) See above, p. 272 f. Canon 2342 Y. Plectuntur ipso facto excommunicatione Sedi Apostolicae simpliciter reservata: (There are punished ipso facto with an excommunication simply reserved to the Apostolic See:)

Religiosorum.—Religious of both sexes, whether under solemn or simple vows, perpetual or temporary, lay brothers and lay sisters, and also novices, but not postulants. Members of communities living together in common under the rule of superiors according to approved constitutions, but without vows, enjoy the privileges of clerics, according to Canon 680, and this among the rest. Tertiaries who satisfy this condition enjoy the privilege, but not otherwise.

(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."

IV. The Privileges of Clerics. Privileges are those things which have been added to rights by positive law. They are: the privilege of the canon, the privilege of the forum, the privilege of exemption, and the privilege of competency.

1. The privilege of the canon is that by which a cleric is protected against every real or bodily injury by the penalties established against those who commit them. It is called the privilege of the canon because it was contained in the celebrated canon of Lateran Council II (1139).

2. The privilege of the forum is that by which a cleric is exempted from lay jurisdiction according to the norm of can. 120, soon to be cited. It is called the privilege of the forum, for forum (from fero or foris) according to the first imposition of the name signifies a public place to which goods for sale are brought; here, however, it chiefly signifies the place in which lawsuits and trials are carried on. Therefore, according to can. 120, clerics in all causes, whether contentious or criminal, must be summoned before an ecclesiastical judge, unless something else has been legitimately provided for particular places, or special permission has been obtained to summon them before a lay judge. If nevertheless they are summoned by one who had no prior permission, they can, by reason of necessity and to avoid greater evils, appear, but with notice having been given to the Superior from whom permission was not obtained. It is said:

a) In all causes; whether contentious or criminal, whether civil or ecclesiastical. Moreover, exemption from the jurisdiction of secular judges with respect to ecclesiastical causes is rather from native right than from privilege, even taken broadly; with respect to civil causes, exemption is from privilege. Nevertheless that privilege does not prevent clerics from generally being subject to civil laws; but if a cause is instituted, for example if there is question of punishing a transgression of civil law, the matter is to be referred to the ecclesiastical judge. Hence it is also said that clerics are subject to civil laws with respect to the directive part, but not with respect to the coercive part.

b) Must be summoned, i.e. cited as defendants, not as witnesses.

c) Unless something else has been legitimately provided for particular places. Thus, for example, in Austria, Bavaria, and Colombia, by concordats, the privilege of the forum has partly been derogated. Whether this privilege can also be derogated by way of custom, at least centenary custom, is disputed among canonists.

d) Or special permission has been obtained to summon them before a lay judge. Moreover, Cardinal Fathers, Legates of the Apostolic See, Bishops even titular, Abbots or Prelates nullius, supreme Superiors of religions of pontifical right, and major Officials of the Roman Curia, on account of affairs pertaining to their office, cannot be summoned before a lay judge without permission of the Apostolic See; others enjoying the privilege of the forum cannot be summoned without permission of the Ordinary of the place in which the cause is conducted. Yet the Ordinary should not deny this license without a just and grave cause, especially when the plaintiff is a layman, and most of all when he has fruitlessly given effort to settling the controversies between the parties (can. 120, § 2).

3. The privilege of exemption.¹ All clerics are immune from military service, from offices and public civil duties alien to the clerical state (can. 121). Duties and offices are understood: 1° those which are repugnant to the dignity of the clerical state, such as sordid duties; 2° those which can be composed with difficulty with the duties of the clerical state, such as offices for preserving public security, for keeping watches, for averting fires, and similar things.

4. The privilege of competency. It is the privilege by which a cleric burdened with debt and called into court by creditors cannot be deprived of those goods which are required for his honorable support; according to these words of can. 122: Clerics who are compelled to satisfy creditors are to have safe those things which, by the prudent judgment of the ecclesiastical judge, are necessary for their honorable support, while nevertheless their obligation of satisfying the creditors as soon as possible remains firm.

A cleric cannot renounce the privileges mentioned; but he loses them if he is reduced to the lay state,² or is punished with perpetual privation of the right of wearing ecclesiastical habit, according to the norm of can. 213, § 1 and can. 2304. But he recovers them if this penalty is remitted or he himself is again admitted among clerics (can. 123).

¹ Cf. Damen, Vrijdom der Geestelijken van krijgsdienst.

² Cf. scholion.

I. Religious, even lay religious and novices, enjoy the privileges of clerics (can. 614); but concerning these there was discussion in n. 1153.

II. Moreover regulars, novices not excluded,¹ whether men or women, with their houses and churches, except those nuns who are not subject to regular Superiors, are exempt from the jurisdiction of the local Ordinary, except in cases expressed by law (can. 615). Nevertheless a house that is not formed remains under the special vigilance of the local Ordinary, who, if abuses have crept in and have been a scandal to the faithful, can provide in the meantime by himself (can. 617, § 2).

III. Religions of simple vows do not enjoy the privilege of exemption unless it has been specially granted to them (can. 618, § 1), as it has been granted to the Redemptorists and Passionists.

¹ Postulants are excluded.

A privilege is a special and permanent right granted by a ruler to an individual or community to act contrary to or beyond the law.

(a) It is a permanent right, and so resembles law, which is also stable and forbids interference with what it grants.

(b) It is a special right, and so it differs from law, which is general and imposes obligation. It is sometimes styled “private law.” Moreover, law requires promulgation, privilege requires only acceptance.

(c) It is granted by the ruler (i.e., by the Pope, bishop, or other legislator), and thus it differs from permission granted by a simple superior.

(d) It is granted to a person, that is, to an individual (Titus, Caius, Balbus, etc.) or to a congregation or community; for, if granted to all, it would not be special.

(e) A privilege gives the right to act contrary to the general law (e.g., by exempting from a tax) or beyond the general law (e.g., by granting the power to dispense). Thus, a privilege differs also from prerogatives that are set down in the Code itself (e.g., the special rights and faculties of Cardinals, bishops, regulars, etc.), all of which are laws and not privileges in the strict sense.

The rules for interpretation of privileges are similar to those for the interpretation of law (see 483 sqq.). They should be neither extended nor restricted, but should be understood according to the meaning of the words themselves (Canon 67), yet so that the party receiving the privilege will seem to have obtained a favor (Canon 68). If the meaning intended is doubtful, the following rules of the Code (Canons 50, 68) should be followed: (a) wide interpretation is to be given to the privileges that are beyond or outside of the law and that are not prejudicial to others, as well as to privileges that were given as a reward of merit; (b) strict interpretation is to be given to privileges that are contrary to law (saving the cases of privileges granted to pious causes or in favor of a community), to privileges granted because of an agreement made, and to privileges that are prejudicial to third parties.

A privilege is a favor, and hence does not as such impose the duty of acceptance or use; but obligations owed to others often make it necessary to avail oneself of a privilege (Canon 69).

(a) Prerogatives granted in the law cannot be renounced by individuals, since their preservation is required by the common good. Example: A cleric has no right to abandon an immunity which the law gives to his state.

(b) Privileges granted to a community can be renounced by the community, but not by its individual members. An individual member is not bound, however, to use the privilege, unless there be accidental reasons, such as the command of a superior, that require him to do so.

(c) Privileges granted to individuals need not be used by them, unless there be accidental reasons that call on one to use a privilege. Example: A priest who has the privilege of a private oratory is not bound to establish such an oratory; but a priest who has the privilege of absolving from reserved cases is bound in charity to use it, if a penitent would otherwise suffer.

What is a privilege? - A privilege is, as it were, a private law, granting some special benefit to someone, existing outside the Body of Law. Private, because it grants something special to someone and not to all. Law, because it is something stable, not situated in a merely passing act; and while it grants to the privileged person the right of using the privilege, it imposes on all, or on the whole community, the obligation of not impeding the use of the privilege. Special, for privileges would not be granted if, besides the general law, nothing special were granted to anyone. Benefit, since it contains the grace of the Prince. To someone, i.e., whether to an individual person, or to a moral person, e.g., a University, a religious Order, etc. Existing outside the Body of Law, because it is not properly a law, whence neither does it need promulgation; but since it is a kind of donation, it needs acceptance. And this holds concerning any granted grace. Regularly nothing is acquired except by one willing. Cf. Schmalz., l. 4, t. 3, n. 203 ff. But petition stands for acceptance, and if it is sought through a procurator, it suffices that it be accepted through him. Wherefore, as long as someone is ignorant whether a grace has been granted, regularly he cannot licitly use it; but more truly he can validly use it, Suarez, l. 8, c. 25, n. 25; Laymann, c. 23, n. 10; Sanch., de Matr., l. 3, d. 36, n. 6, 8; l. 8, d. 21; Engel, l. 5, t. 33, n. 8; l. 4, t. 3, n. 15, if it is true that the grace was granted. Nor does it matter if the grace was sought for another, even one ignorant of it, indeed even unwilling. Sanch., de Matr., l. 8, d. 26, n. 4; Bonac., d. 1, q. 3, c. 3, n. 4. Hence, if someone neither himself sought the grace, nor knows that it was sought by another and granted, and yet perhaps uses it, one must stand for the validity of the act, namely when this depends only on the will of the one granting the grace, as, e.g., may be seen in dispensations of marriage in the root; or if the Supreme Pontiff, at the request of a Cardinal, permits an outside priest to assist at a marriage, and this priest, ignorant of the petition and concession, assists. But unless something else is drawn out from the concession of the grace, it is considered to be granted only to one knowing and accepting. - C. 17 de Praeb. in 6; L. 1; Suarez, l. 8, c. 25; Lugo, de Poenit., d. 19, s. 2.

A privilege differs from a law, properly such, that is singular; namely one which graciously establishes something special for a certain kind of persons, and, since it is a true law, is contained in the Body of Law; and since at the same time it contains some special benefit, it is a true privilege; but because it is contained in the Body of Law, it is commonly called a privilege enclosed in the Body of Law. Such, for example, is the faculty granted to bishops by Trent, s. 24, c. Liceat 6, of dispensing from irregularities arising from hidden delict and of absolving from hidden cases even reserved to the Apostolic See; restitution in full granted by laws to minors, wives, and interdicted persons. Wherefore, as other laws, so also these need not acceptance but promulgation. Indeed not even the knowledge of those to whom they have been granted is required, in order that they may validly use them. Cf. Suarez, l. 8, c. 26, n. 16. Likewise, just as other laws, so these also are perpetual and do not cease by renunciation, although in particular cases someone can renounce the use of a right introduced for himself, provided the privilege was not granted on account of others, or on account of the dignity of an order or body, or on account of the presumption of common danger of fraud; as those things which have been granted to the weakness of persons, such as restitution granted to novices professing before canonical age, if these renounce the right of restitution. Trent, s. 25, c. 16 de Reg. De Iustis, de Dispens. matrim., l. 1, c. 3, n. 51 ff.

Of how many kinds is privilege? By reason of the subject, one privilege is personal, which is granted to an individual person, e.g., to Titius, or to a body of persons, e.g., to minors, or to a moral body, e.g., to a religious order; another is real, which is also granted to persons, but with respect to dignity, office, place, or thing. Real privileges are perpetual, and to these are also counted personal privileges of the second and third species. Wherefore real privileges pass to successors in the same thing. But personal privileges are extinguished with the same person. - Hence all special faculties habitually granted by the Holy See to Bishops and other local Ordinaries, and also to Superiors General of religious Orders, even for a determined number of cases, do not end on account of their death or cessation from office, but pass to successor Ordinaries. S. O., 24 Nov. 1897; 20 Dec. 1899. But faculties granted nominally to a Bishop are understood to be granted to the local Ordinary. S. O., 5 Sept. 1900. Under the name of Ordinaries also come their Officials, or Vicars, in spiritual matters, general.

By reason of the object, one is against law, which derogates from law, as the privilege of a private oratory; another is beyond law, by which mere grace beyond law is granted, e.g., the faculty of absolving from reserved cases. By reason of cause, one is remuneratory, which is granted on account of certain merits; another gracious, which is granted without preceding merits. A gracious privilege can be revoked even without cause; for it proceeds principally from the liberality of the one granting. A remuneratory one cannot be revoked without cause; for it is granted on account of merits. And if it is remuneratory from strict justice, namely on account of a price paid, on account of a burden imposed, it cannot be revoked without due compensation. By reason of mode, one privilege is granted motu proprio, another at the instance of the parties; one is granted first and in itself, another is granted after the likeness of a prior one. A privilege granted after the likeness of another is either given accessorily or equally principally. If accessorily, it follows the vicissitudes of the principal; whence, when that perishes, it perishes; when that grows or is diminished, it grows or is diminished. If equally principally, it subsists altogether independently of another, and does not follow its vicissitudes. - Suarez, l. 8, c. 4, n. 38; Lugo, Resp. Mor., l. 1, d. 19; L. l. 1, n. 197; App. 2, n. 5; Ferraris, Supplementum, v. Episcopus, n. 20; E. M.

What is a grace made and a grace to be made? Graces are distinguished into made and to be made. A grace is called made when he who grants it assents to the petition, if it is given at the prayers of the petitioner; or when the one making the grace simply grants it, if he bestows it motu proprio. Now when the Prince himself grants it in favor of him to whom he grants it, or as it is said, in gracious form, then the grace is regularly understood as made, as if the Supreme Pontiff grants to a religious order, or to an individual person, to Titius the priest, the faculty of absolving from reserved cases, of blessing rosaries and attaching indulgences to them, etc.

But when he grants it through another, or, as it is said, in commissory form, because it falls back into a mandate, then the grace is sometimes made, sometimes to be made. It is made if another is constituted a necessary executor; but it is to be made if another is constituted a voluntary executor. For in the first case another is merely the executor of the concession of the grace; in the second, another is the executor of the grace to be granted, namely the grace to be granted is remitted to him. And thus the grace is made if in the rescript, e.g., it is said to the Ordinary, "dispense," "absolve," even if some condition to be verified is added, even if there is added "according to your judgment and conscience," which words are placed only on account of the expression of reverence and fittingness. S. C. C., 6 Dec. 1845. But it is to be made if in the rescript it is said, "dispense," "absolve," if you shall have judged it expedient, or if the petitions are remitted to him with the necessary and opportune faculties. L. l. 1, App. 2, n. 13; Bizzarri, Collect., p. 666.

Hence a grace made does not expire by the death of the one granting, or by his ceasing from office; on the contrary, a grace to be made expires, namely while the matter remains entire, unless something else has been provided by law itself. - Reg. 12, Canc. Apost.; L. 8; l. 6, n. 559; Laymann, l. 1 de Privileg., c. 23, n. 18; Alois. Trombetta, Prax. Reg. circa Contr. rer. Eccl., c. 6.

Who can grant a privilege, and to whom? A privilege against law can be granted by those to whom the law is subject; and indeed only to subjects, and only to places which are contained by their power. The reason is that such a privilege is a derogation of law, and the legislator has no authority over non-subjects and outside his own territory. A privilege beyond law can be granted even to non-subjects, because it is not always and necessarily an act of jurisdiction, but an act of mere faculty and, as it were, a donation. Thus a Prince can grant to a stranger the privilege of hunting in his territory. Suarez, l. 8, c. 8, 10, 26.

Can travelers enjoy the privileges of places through which they pass, even if these are against common law? R. Affirmatively. It is established from general custom.

Can one delegated to grant a grace subdelegate? R. Negatively, speaking in itself; because this faculty is not included of itself in the concession of the superior, unless it is expressed. Except: 1. If someone were delegated by the Prince; yet in the case in which the delegation was made as through an office; but not if the person is chosen on account of his expertise, or if not jurisdiction is committed to him, but the mere execution of some cause, or some certain ministry, such as to preach, dispense, enjoin penances, excommunicate or absolve someone. C. 3, 6 and fin. de Offic. et pot. iud. deleg.; S. O., 1 June 1904. Wherefore Regulars, to whom some faculty of dispensing has been granted by the Supreme Pontiff for the easier and more fruitful exercise of the sacred ministry, cannot subdelegate it to others. In the exercise of jurisdiction it matters little what person is constituted judge, provided he is skilled. But in bare ministry, or execution, the industry, experience, and authority of the person are chosen. - 2. If someone were delegated to supply the whole office of another, or to a universality of causes, even if not by the Prince; hence vice-pastors, universally deputed in place of an absent or dead pastor, can subdelegate another, L. 1 § Ab eo ff. Quis a quo. Yet this subdelegation cannot be for the whole, but only for one or another cause, as is common with St. Thomas: "A vicar cannot communicate his whole power, but he can communicate a part." Quodl. 12, a. 31. But a curate administrator, constituted by the Bishop when the parish is vacant, by force of the disposition of the Council of Trent, s. 24, c. 18, can delegate another priest for all offices, unless the will of the Ordinary stands in the way. S. C. C., 9 May 1874, A. S. S., vol. 8, p. 134. What has been said about delegation made by the Prince holds even more of delegation made by the Pope. L. 193. From S. O., 14 Dec. 1898, the Bishop and the Superior General of a religious Order can subdelegate faculties delegated to them by the Apostolic See for a time, whether in a general way or for a particular case, unless this is prohibited or restricted in the faculties. Sanch., de Matr., l. 3, d. 31, n. 4; Ferraris, v. Delegare; L. l. 7, n. 224; E. M.

254 bis. Note: Jurisdiction is the power of ruling others; and it is of the internal and external forum; secular, ecclesiastical; ordinary by force of office, delegated from him who has ordinary jurisdiction. - It is besides contentious or voluntary. The former is exercised over a subject, concerning contentious causes, in judgments, and in one's own territory. The latter is exercised even over a non-subject, concerning other non-contentious business outside judgments, and in one's own territory and outside one's own territory.

Does delegation made absolutely expire by the death of the one delegating? Delegation made by law is after the manner of an ordinary faculty. Made by man, it expires by the death of the one delegating, and by his removal or cessation from office, in contentious jurisdiction, and if the matter is still entire; and in voluntary jurisdiction, if the grace is not made, but to be made; but it by no means expires if the delegation is by way of a grace made, however much the matter may still be entire. This happens: 1. When it is granted on account of public utility, as is the faculty of dispensing in vows, in matrimonial impediments, of absolving from censures, etc. 2. When it is granted on account of the private utility of another, e.g., Caius, Sempronius, etc., yet in such a way that a precept of executing the mandate is imposed on the commissary or delegate, as if he said: dispense with Titius, absolve, provide concerning the benefice, etc., if the petitions rest upon truth. For delegation of this sort contains a right perfectly granted, and therefore, once accepted, perseveres in its being, although the one granting dies, C. 1 § 1 de Filiis presbyt., and this delegation is to be interpreted broadly. On the contrary, it expires if given by way of a grace to be made, the matter however remaining entire; this happens when the grace is not perfectly granted, as occurs when it is given in favor of another private person, and the delegate is not commanded to execute it, but the power of granting the grace is given, or it is remitted to his judgment and will, as if he said: you can and may dispense, etc., if the things set forth are true. The matter remaining entire; for it is otherwise when the matter is not entire. And delegation of this sort is to be interpreted strictly. But the matter is said not to be entire if the delegate has begun to exercise the first act, as if he has begun to call the party to learn concerning the truth of the petitions. R. 16 de R. I. in 6; L. 192-194; cf. here 251, 283 and V. 2, 1045.

How are privileges to be interpreted? - Privileges are worth only as much as they sound. C. Per exemptionem 9 de Princ. in 6. Therefore they receive neither extensive nor restrictive declaration, but regularly only declarative. C. 27 de Praeb. in 6. Wherefore, when the faculty of absolving from papal reserved cases is granted, the faculty also of absolving from episcopal reserved cases is not included. L. l. 7, n. 98. When the faculty of choosing a confessor is granted, one can choose him as often as he wishes. Regularly, because if a privilege is granted in general words, in such a general concession there do not come those things which someone would not likely grant, R. 81 de R. I. in 6, i.e., things altogether extraordinary and unusual, Laymann on C. Sedes 15 de Rescript.; Reiff. on cited C. 81; nor those things which deserve special mention, or are excluded by custom or law. Therefore, when the faculty of absolving from reserved cases is granted, the faculty of absolving from specially reserved cases is not understood to be granted; when the faculty of absolving from reserved cases even specially is granted, the cases of the Constitution Sacramentum Poenitentiae are not comprehended.

Privileges beyond law are of broad interpretation, since they are benefits of the Prince. C. 16 de Verb. sign.; C. Quia circa 22 de Priv. Conversely, privileges against law are of strict interpretation. For it is expedient for the common good that laws enacted for it be preserved entire as far as can be done. C. Ut filii 1; C. Ad praesentiam 2 de Filiis presbyt. in 6. Nevertheless these too are of broad interpretation if the good of the commonwealth or of Religion is concerned, as are privileges granted to communities or to some pious cause, L. l. 1, App. 2, n. 8; if they have been granted motu proprio, C. Si motu 23 de Praeb. in 6; if otherwise they would be useless, C. 30 in fin. de Priv. Those privileges alone are always of strict interpretation which injure the right of a third party, since they are always understood with justice and the right of a third party preserved, C. Licet 12 de Off. iud. ord.; C. Super eo 15 de Off. iud. deleg.; C. Cum olim 12 de Priv. L. 5 ff.; Wirceburg., de Legib., c. 5, a. 3.

Are privileges against common right necessarily odious?

R. Negatively. For a favorable privilege is that which profits one, in such a way that it harms no one, e.g., the privilege of eating meats in Lent. But an odious one is that which, from the favor conceded to one, produces inconvenience for another, e.g., exemption from paying taxes, which burdens others. Hence it follows that privileges against right are not necessarily odious, unless they harm someone. But scarcely can any privilege be given which is truly and properly opposed to common right. For privilege differs from dispensation, which actually excuses from the obligation of law, and therefore is always of itself odious, and contradicts the law; for the subject, although actually exempted from it, nevertheless remains habitually bound. Privilege, on the contrary, proceeds rather parallel with the law; for privilege is some private law directing its subjects, and therefore permanently. Yet because it exempts from the common law, a private privilege against law is regularly of strict interpretation. Regularly, private; for one given motu proprio, or inserted in the Body of Law, or granted to a religious order or community, is altogether of broad interpretation, namely by reason of the common good. C. 40 de Off. et pot. iud. deleg.; C. 22 de Privil.; C. 4 de Praeb. in 6; R. I. 28 in 6. - L. l. 7; l. 3, n. 318, Claus. I.

When do privileges cease? - Privileges of themselves are perpetual; nevertheless they cease: 1. On the part of the one granting, by revocation, e.g., by a contrary law enacted which otherwise could not obtain its effect, or which contains the clause, "notwithstanding any privileges whatsoever"; or by command of the Prince himself granting the privilege, or of his successor, directly manifested to him to whom the privilege had been granted. But it is by no means extinguished by the death of the one granting, since it is a grace made. C. 15 de Rescr. in 6. 2. On the part of the privileged person, by renunciation accepted by the one granting. C. Si de terra 6 de Priv.; by non-use, or contrary use, if they injure the right of a third party, and this third party has legitimately prescribed against them. C. 15 de Privil.; cf. Engel, l. 5, t. 33, n. 19 ff.; Pirhing ib., n. 176; Reiffenst. there, n. 209.

But they by no means cease by abuse, unless regularly after at least a declaratory sentence of a judge, since it is a penalty, C. Ubi 7, Dist. 74; or unless the privilege was given to someone under this express condition, that if he abuses it, he loses the privilege by the law itself. 3. On the part of the privilege itself, granted under a condition, even a tacit one, or to a day, when the condition has been fulfilled and the day has elapsed.

C. 4 de Off. et pot. iud. deleg.; C. 5 de Rescr. in 6. But a personal privilege ceases by the death of the person; a real one, by the absolute and legitimate destruction of the thing or place, or when the dignity and office cease. - But when the final cause ceases, even forever, the privilege does not cease, since it is a kind of donation, Suarez, l. 8, c. 2, n. 5, unless it ceases contrarily, so that the privilege becomes illicit and unjust. Suarez, l. c., n. 6. Indeed, when the cause ceases merely negatively, the privilege does not therefore become a useless benefit; as, e.g., the privilege of a private oratory granted to a sick person or to a person established in dignity, when health has been recovered or dignity lost. L. 14-17; E. M.

Note: No one is held in itself to use a privilege, because each person can renounce his own right; nevertheless sometimes by accident the privileged person is obligated to the use of the privilege: 1. By reason of charity; hence he would sin who, having the faculty of absolving from reserved cases, would be unwilling to absolve a sinner placed in grave necessity. 2. By reason of the common good, namely when the privilege is not personal but real, attached to a place or dignity or state; thus a cleric cannot renounce the privilege of canon or of forum, nor a religious the privilege of exemption. - L. 3; l. 3, n. 318, Claus. XI, Dub. 3, n. 324; Ithur., Cas. 32, n. 20.

What are the privileges of clerics and churches? - 1. The privilege of forum, by which they are exempted from lay magistrates in civil and criminal matters. C. Nullus 2 de For. comp. This privilege belongs to clerics constituted in sacred orders, beneficiaries, and others, whether regular or secular, if nevertheless these latter, i.e., simple clerics, "wear the clerical habit and tonsure, serve some Church by command of the Bishop, or are engaged in some school or University by license of the Bishop, as on the way to receiving major orders." Trent, s. 23, c. 6 de R.; s. 25, c. 20 de R. Wherefore ecclesiastics enjoy exemption concerning their persons, and cannot be judged and punished by a lay court. They also enjoy the privilege of exemption from military service and other civil offices which are by no means fitting for a cleric. Pr. 32, Syll. - They likewise have exemption, says St. Alphonsus, 20, as regards their own goods, both ecclesiastical and acquired in whatever other way; whence in respect of these they are not held to pay any tax. - But various Concordats and legitimate customs must be attended to. Indeed, as regards taxes to be paid, these are paid everywhere; nor is any protest had against them. Wherefore this privilege at least de facto is not in force. - Schmalz., l. 2, t. 2, n. 80 ff.; Bened. XIV, de Syn., l. 12, c. 6, n. 5; L. 18 ff.; A. S. S., vol. 2, p. 128, 431, 584. Judges compelling laymen to drag ecclesiastical persons to their tribunal incur excommunication reserved in a special way to the Supreme Pontiff. C. Apostolicae Sedis. Cf. vol. 2, n. 1170.

2. The privilege of C. Odoardus 3 de Solut., namely that a cleric debtor not be condemned beyond that which he can give, and therefore with sustenance left to him, if because of poverty he cannot pay his debts, until he has come to a richer fortune. E. M.

3. The privilege of canon, namely of the Lateran Council, A.D. 1139, under Innocent II, by which those who strike clerics incur by the fact itself excommunication reserved to the Roman Pontiff, C. of Pius IX, Apostolicae Sedis de Censuris. And notorious strikers of clerics, so that the fact cannot be hidden by any tergiversation, nor excused by any suffrage, are excommunicates to be avoided. Extravag. of Martin V, Ad evitanda. From these privileges are despoiled clerics who have been really degraded; jesters, goliards, or buffoons; likewise those exercising the base trade of executioners, butchers, or taverners; married men not wearing clerical habit and tonsure, or, if unmarried, falling into the manner of laymen; if, having been admonished three times, they have not come to their senses within a suitable term, C. Clerici un. de Vit. et hon. cl. in 6; Clem. Dioecesanis 1 de Vit. et hon. cleric.; clerics involving themselves in tyranny or enormity, having laid aside the clerical habit, C. Perpendimus 23 de Sent. excomm.; bigamous clerics, who have taken two legitimate wives or a widow, C. Altercationis un. de Dig. in 6; C. Clerici de Cler. coniugat. in 6: cf. Trent, s. 23, c. 6 de R.; Schmalz., l. 5, t. 39, n. 218; clerics constituted in minor orders who lay aside the clerical habit, S. C. Imm., 25 Sept. 1860, to the Ordinaries of the Pontifical Domain; clerics ordained to minor orders, when the See is vacant, within a year from the day of vacancy, unless they have been constrained by occasion of an ecclesiastical benefice received or to be received. Trent, s. 7, c. 10 de R. L. 24; l. 6, n. 827; E. M.

4. To churches, public Oratories, the Episcopal Palace, Houses of Regulars, and Hospitals in which there is a public Chapel, immunity belongs as regards the asylum of delinquents, excepting the cases comprehended in the Bulls of Gregory XIV, Cum alias, and Benedict XIV, Ex quo divina. All delinquents, provided they are Christians, although heretics, or interdicted, or enclosed in prison, who, having broken prisons, have fled to the aforesaid sacred places, enjoy this immunity, except however the cases excepted in law. Public robbers, ravagers of fields, homicides, heretics and rebels against the person of the Prince, those falsifying coins, etc., are excepted. But just as ecclesiastical superiors can extract their own subjects from a Church, so also, if need be, they can grant the same license of extracting to the secular court. Here also various Concordats and various customs of places must be attended to. L. 25 ff.; Schmalzgr., l. 3, t. 49, n. 88 ff.; E. M.

260 bis. What are the privileges of Cardinals? - They are the following: 1. Of hearing confessions everywhere on earth, even of religious of both sexes, and of absolving from all sins and censures, except only censures reserved in the most special manner to the Apostolic See, and those which are annexed to the revelation of the secret of the Holy Office. 2. Of choosing for themselves and their familiars a Priest for receiving confessions, who, if he lacks jurisdiction, obtains it by the law itself, even as regards sins and censures from which the same Cardinals can absolve. 3. Of celebrating, or of permitting others to celebrate before them, Mass on Thursday of Holy Week and three Masses on the night of the Nativity of the Lord. 5. Of celebrating Mass in any private chapel without prejudice to one using an indult. 5. Of enjoying a personal privileged altar daily; likewise a portable altar, in any decent place, according to their prudent judgment, even at sea, with due cautions observed. 6. Of gaining in their own chapels indulgences for the acquisition of which the visitation of some church or public shrine of the city or place in which the Cardinals are actually staying is prescribed; their familiars also can enjoy this privilege. 7. Of blessing everywhere, by the sign of the cross alone, with all indulgences customarily granted by the Holy See, rosaries and other prayer chaplets, crosses, medals, statues, scapulars approved by the Apostolic See, and of imposing these, without the burden of inscription. 8. Under one blessing, of erecting in churches and even private oratories in which Mass can be celebrated, and in other pious places, Stations of the Way of the Cross with all indulgences which have been imparted to those performing an exercise of this sort; and also of blessing for the faithful, who by reason of infirmity or another legitimate impediment cannot visit the sacred Stations of the Way of the Cross, images of the Crucified with the application of all indulgences annexed by the Apostolic See to the devout exercise of the same Way of the Cross.

9. Of wearing, in the manner of Bishops, a cross before the breast even above the mozzetta, and of using mitre and pastoral staff. 10. Of blessing the people everywhere in the manner of Bishops, but in the City only in churches, pious places, and assemblies of the faithful. 11. Of performing pontificals with throne and baldachin in all churches, the Ordinary having been forewarned if the church is a cathedral; but in the City they do not have the right of throne except in the church of their title. 12. Of enjoying the honors customarily paid to local Ordinaries wherever they betake themselves. 13. Of preceding all Prelates, even Patriarchs, indeed the Pontifical Legates themselves, unless the Legate is a Cardinal residing in his own territory; but a Cardinal Legate a latere precedes all others. 14. Of granting an indulgence of two hundred days in places or institutes and for persons of their jurisdiction or protection; likewise in other places, but to be gained only by those present, each time. 15. Of performing consecrations and blessings of churches, altars, sacred furnishings, abbots, or other similar things, except the consecration of sacred oils, everywhere, with those things observed which must be observed. From the Audience of His Holiness, on the 20th day of December, A.D. 1911, Our Most Holy Lord Pope Pius X graciously deigned to grant that the Cardinals of the Holy Roman Church may use the privileges which precede, even before the promulgation of the Code. - PETER Cardinal GASPARRI.

What are the principal privileges of Bishops? - As regards preserving their dignity. If Bishops commit a crime which is forbidden under penalty of suspension or interdict, they do not incur these censures unless they have also been laid upon them by name. Their causes are to be terminated through the Supreme Pontiff. Trent, s. 13, c. 8 de R. But those who injure Bishops incur excommunication reserved in a special way to the Roman Pontiff. C. Apostolicae Sedis de censuris. - From the same Constitution Apostolicae Sedis, those violating an interdict and excommunication imposed by the Ordinary are punished with interdict from entrance into a church. They can wear a small skullcap of violet color, even in sacred offices and while they celebrate Mass, but not from the Preface to Communion, S. C. Cons., 1 May 1910. From the day of election they can wear a small skullcap and biretta of violet color.

As regards Mass. - "A Bishop can dispense for celebrating on another altar, or in a church not designated by the founder, when another just cause is present." L. 60; l. 6, n. 329. - "He can dispense for just causes both with himself and with others for celebrating after midday." L. 61; l. 6, n. 344. - They can celebrate not only in their own episcopal house, but also in lay houses, in which on occasion of visitation or a journey they are received with hospitality, and when, in cases permitted by law, or by special license of the Apostolic See, being absent from the house of their own habitation, they therefore make a stay in another's house after the manner of a similar habitation.

But not only can they themselves, wherever they dwell, celebrate even on a portable altar, but they can also permit another Mass for their own convenience; and the faithful hearing either one satisfy the precept. S. R. C., 22 Aug. 1818; 8 June 1896; L. 63; l. 6, n. 358; Bened. XIV, de Sacr. miss., l. 3, c. 6, n. 6. - They can grant the faculty of celebrating outside a church in a non-sacred place, if grave and proportionate causes are present; and in private houses, from just and reasonable causes, but by way of an act and in a decent place. S. C. de Sacram., 20 Dec. 1912; L. 64; l. 6, n. 344, 359; Lucidi, de Visit. Sacror. Limin., vol. 1, p. 97, n. 108. - When Bishops have died, Masses can be celebrated through the whole morning in the larger hall of their own residence, where the body lies exposed. S. R. C., 3 Apr. 1894; Ferraris, Supplementum, v. Missa de Requie, n. 7; E. M.

As regards baptism, Confession, Communion. They can permit that, besides when danger of death is imminent or necessity urgent, baptism be administered to infants at home from a just and reasonable cause. S. C. de Sacram., 20 Dec. 1912. - They can choose for themselves a confessor outside the diocese, provided he is their subject, and they can take him with them to different places; but if he is not a subject he must be approved by his own Ordinary. - They can permit that the Holy Eucharist be carried privately to the sick from the church to the home, or without the prescriptions of the Ritual being observed. S. C. de Sacram., 20 Dec. 1912. - L. 65; l. 6, n. 565.

As regards censures and irregularities. - Bishops can, by themselves or by another specially deputed, absolve subjects from hidden papal cases, except those which are reserved in a special way to the Supreme Pontiff. From the Declaration of S. O., 17 June 1866 and 4 Apr. 1871, there is also excepted the case of a person of whatever sex falsely denouncing a priest concerning the crime of solicitation in confession. They can likewise absolve those who strike a cleric lightly; and, if these are living collegially, although the striking was grave, but not if it was enormous. From the same censure they can also absolve those who are impeded from going to Rome. Cf. vol. 2, n. 1182. Various cases, however, are reserved to them by the law itself. C. Apost. Sedis; Decr. S. C. C. concerning the trafficking of Masses, etc. Cf. vol. 2, de Censuris.

They can besides dispense in all irregularities, and absolve from all suspensions incurred on account of hidden delict, except voluntary homicide, and other matters brought to the contentious forum. Trent, s. 24, c. Liceat. Probably they can dispense also in doubtful irregularities from defect. Moreover they can dispense in non-hidden irregularities from defect of birth for minor orders and simple benefices. As regards inabilities enjoined by Pontiffs as penalty, whether they can dispense is disputed, and the matter is very doubtful. Concerning homicide, "the common opinion is that the Bishop can dispense when danger of soul is imminent; or another most grave cause, and it would be difficult to have recourse to the Pontiff, etc." L. 51, 29, 35, 46, 47, 49, 52, 53; l. 3, n. 397; l. 6, n. 593, 705; l. 7, n. 353, 392, 394; E. M.

As regards orders. - A Bishop can dispense in the interstices prescribed by Trent as regards the ordination of clerics, as is established in the same Trent. S. 23, c. 11, 13 de R.; L. 59; l. 6, n. 775, 780, 789. Dispensation of interstices pertains to the Bishop also as regards regulars. - Ferraris, Supplementum, v. Episcopus, n. 16.

As regards marriage. They can dispense: In publications of banns, and in impeding impediments, excepting the vow of perpetual chastity, the vow of entering Religion, betrothals, the impediment of disparity of worship between Catholics and heretics, reasonable dissent of parents, etc. Cf. vol. 2, n. 991. In impediments supervening after marriage has been contracted, in order to petitioning the debt; e.g., if they have contracted affinity for this reason, that either one had carnal commerce with blood relatives of the other; or if one has vowed chastity. Indeed the Bishop can also dispense a spouse from a vow of perpetual chastity which he emitted before marriage, so that he may exercise matrimonial rights. - In doubtful diriment impediments. By accident, in certain diriment impediments, both before and after marriage has been contracted, when recourse to the Pope is very difficult and there is danger in delay, or where danger of scandal, infamy, incontinence, etc., is imminent; but especially in the article of death. Cf. vol. 2, n. 1044.

L. 54-58; l. 6, n. 613, 1122; E. M. Through quinquennial faculties Bishops have the faculty of absolving from many cases reserved to the Holy See, of dispensing in many impediments of marriage, and also of habitually subdelegating to pastors the faculty of dispensing over a hidden impediment of affinity from illicit intercourse in marriages to be contracted, when all things are prepared for the wedding.

As regards enclosure. "Bishops are delegates of the Apostolic See for protecting the enclosure of monasteries of nuns, even exempt ones, and of those which are subject to regulars." L. 66, 67. And as regards Institutes of simple vows, it also belongs to the Bishop to care that enclosure be rightly observed, and to restrain whatever fault creeps into it. Leo XIII, C. Conditae a Christo, VI Id. Dec. 1900.

As regards other ecclesiastical laws. - Bishops can dispense for particular cases and persons, and for a brief time, as has already been said at n. 243. For particular cases and persons; for by common law Bishops do not have the faculty of dispensing with the whole community. But whether a Bishop can dispense in canonical statutes not expressly reserved, St. Liguori judged that the negative opinion must altogether be held, l. 1, n. 191. Yet the same Holy Doctor, in the work H. A., tr. 2, c. 6, n. 58, says that the affirmative opinion is sufficiently probable. And in the Appendix de Privil., 71, he has these words: "Probably the Bishop can dispense in all things in which dispensation is not specially reserved to the Pontiff." And it can be admitted, if the matter is of lesser moment and frequently recurs. Cf. L. de Priv., n. 53. - S. Th. 1. 2. q. 97, a. 4, ad 3; Gennari, Cons., vol. 1, c. 97, n. 6; cf. here n. 1626.

As regards vows and oaths. - Bishops can dispense: 1. In all simple private vows, except the five reserved to the Pope, namely of perpetual chastity, of Religion, and of pilgrimages to Jerusalem, to the thresholds of the Apostles, and to St. James of Compostella. - 2. In all oaths, if you except oaths accepted by a third party, which were not extorted by fear or fraud. - Hence Bishops cannot dispense in vows, whether perpetual or temporary, of Institutes of simple vows, after the Holy See has commended them at least by Decree of Praise. C. cited Conditae a Christo.

269 bis. Are there also privileges of other Prelates? - The privileges of Protonotaries are many. Four orders of these are had: Apostolic Protonotaries of the Number of Participants, seven, who exclusively constitute the College; supernumerary Apostolic Protonotaries; Apostolic Protonotaries after the likeness of Participants; titular, or honorary, Apostolic Protonotaries outside the City. The privileges of all these are contained in the Motu Proprio of Pius X, 21 Feb. 1905, concerning Apostolic Protonotaries, concerning Urban Prelates, concerning dignities, canons, and others who enjoy some privileges proper to Prelates. Cf. Declar. S. R. C., 14 Mar. 1906, n. 4182. There are also privileges of the Common Chaplains of the Pontifical Chapel, S. R. C., 16 Mar. 1907, Acta S. Sed., vol. 40, p. 311; of the Loreto Chaplains, S. R. C., 11 Dec. 1912; of Apostolic Missionaries, Decr. S. O., 21 Apr. 1909.

269 ter. Note: 1. A canon duly enrolled in a Chapter which collegially enjoys privileges or insignia and rights pertaining to Apostolic Protonotaries, either supernumerary or after the likeness of participants, acquires no right by which he is numbered by the Supreme Pontiff among Domestic Prelates with the expedition of a Brief. S. R. C., 24 May 1911. - 2. To perform sacred rites in pontifical rite belongs to Bishops. From privilege this is also conceded to Protonotaries after the likeness of Participants, and to other inferior Prelates, but with more moderate adornment. The Constitution of Benedict XIV, In throno iustitiae, 28 Feb. 1752, establishes the manner of using the Indult of Pontificals. - 3. Since precedence is a sign of honor, it is to be deduced from the grade of dignity and from the power of jurisdiction and dominion. A collegiate church has precedence over pastors and a college of pastors. S. R. E., 23 Mar. 1619, n. 372; 5 Feb. 1639, n. 664; 6 Apr. 1647, n. 908. Collectan. S. R. C., Ind. v. Praecedentia.

What are the principal privileges of Regulars? - As regards communication of privileges. All regular orders communicate in the privileges of other orders, whether mendicant or not. L. l. 4, n. 60. "These mendicant religions communicate in the privileges of the other religions, or congregations, or monastic or non-monastic colleges... And this holds even if in a privilege granted to another religion or congregation there is a clause that it is not to be communicated... Both lay brothers, for they themselves are truly religious, and novices enjoy privileges of this sort... religious promoted to the episcopate also enjoy them, provided there is not question of things by which, if Bishops used them, some prejudice would come to religion, as would be dwelling in a monastery, giving a vote." L. 9. - Male tertiaries who live collegially enjoy the privileges of Orders. S. C. EE. et RR., 20 Dec. 1616; Bizzarri, Collect., 1885, p. 569 ff. Nuns enjoy the same privileges (understand favorable ones) of which they are capable, as religious of the same order. The reason is that since they themselves live under the same rule, they are part of the order, and therefore deservedly ought to enjoy the privileges of the order. Hence an abbess can dispense in fasts, office, etc., according to the privileges granted to the prelates of her order; because, although she herself cannot dispense by herself on account of defect of spiritual authority, she can nevertheless do this by commission of the prelate, which is presumed to have been made to her as soon as she was elected abbess. L. 10; l. 4, n. 60, 63. As regards women of the third order and their privileges, cf. Collectan. S. C. de P. F., n. 445; Benedict XIV, Not. 29, 105, n. 59 ff. - As regards secular Franciscan tertiaries, cf. Constitution of Leo XIII in Ferraris, Supplementum, v. S. Franciscus Assis., etc.

More recent Institutes of simple vows are excluded from this participation in privileges. Nevertheless the Carmelite Sisters of France obtained it by special Decree of S. C. EE. et RR., 23 Mar. 1869, so that they participate in the spiritual graces of the Carmelites of solemn vows, exemption excluded. Ferraris, Supplementum, v. Carmelitae, n. 9. Privileges granted to some place or person, not as to a particular person, but as to a member of a community, are understood to be granted also to other places and religious of the same dignity and grade, both of that order and of others which have communication, namely when the same or a similar reason applies. L. 11. Privileges are not communicated: 1. When they are odious or contrary to proper statutes, so that they prejudice the good or common observance of religion. 2. When they are granted to some private person, or to some congregation, but for a determined time, or through particular Briefs, or on account of a particular reason which has no place in the others, or concerning an exorbitant thing which is usually granted with difficulty and is worthy of special commemoration; or, from the General Decree of S. C. R., 20 Mar. 1706, concerning those things which regard Masses and offices. 3. Likewise the privilege of receiving sacred orders from any Bishop is not communicated. Benedict XIV, C. Impositi nobis, 27 Feb. 1747, par. Quod vero. Privileges granted to religious families by Canon Law or by the Holy See are understood to be granted in such a way that they do not prejudice the legitimate power of superiors. Wherefore the same Prelates can from a just cause take away, at least as to liceity, or limit for subjects the use of privileges. L. 6; l. 4, n. 64; E. M.

As regards interpretation of privileges. - Privileges "which are granted to some order, convent, community, or to another pious cause, all are to be interpreted not only broadly but even most broadly, even if they are contrary to Common Law or to some third party. For privileges granted to communities are all presumed to be remuneratory of services furnished, and therefore all are held as favorable." L. 8.

Bishops and other secular Prelates are prohibited from juridically and authentically interpreting the aforesaid privileges. If any doubt arises, let judgment be made concerning it among skilled men, or let the Apostolic See be consulted. Generals of religions for the whole order interpret privileges not only doctrinally, but also juridically and authentically, so that all subjects are held to stand by their interpretation, when they interpret either laws and customs, or privileges. The same power was given to other regular Prelates, even immediate ones, but let them proceed prudently and from the counsel of skilled persons, so that for the forum of conscience they may be able, by Apostolic Authority, to interpret and declare authentically and juridically all the said things. L. 6.

As regards exemption. - Regulars have the privilege of exemption from the jurisdiction of Bishops, which they cannot renounce, C. Cum tempore de Arbitris. Wherefore regular Prelates have in their churches and monasteries quasi-episcopal jurisdiction, both as regards persons and as regards places. - The privilege of exemption is enjoyed not only by professed and lay brothers, but also by novices and tertiaries who stay within the cloisters; likewise, as regards censures, sacraments, and burial, by servants of regulars, who actually serve and reside within the cloisters of monasteries as, so to speak, of the family and perpetual table companions, no otherwise than the lay brothers themselves. Trent, s. 25, c. 11 de Reg. This exemption is not universal, but has several exceptions, especially for men, as regards delicts committed by regulars living outside the monastery, as regards hearing confessions of seculars, as regards the celebration of Masses; and for nuns, as regards enclosure. Trent, s. 6, c. 3 de R.; s. 22, Decr. de Observ., etc.; s. 25, c. 5, 9, 14 de R.; Gregory XV, B. Inscrutabili, 5 Feb. 1622; Clement VIII, B. Suscepti muneris, 23 Feb. 1596; Benedict XIV, de Syn., l. 9, c. 16. Likewise it has no place when subjection to the jurisdiction and laws of the Ordinary is necessary for avoiding scandal or for procuring the common good. Schmalz., l. 1, t. 2, n. 38. "But all exempt persons, both secular clerics and any regulars whatsoever, even monks, when called to public processions, are to be compelled to come, except however those who live perpetually in stricter enclosure." Trent, s. 25, c. 13 de Reg. Monasteries are not to be erected without the permission of the Bishop of the place. Trent, s. 25, c. 3 de Reg. Besides, permission of the Supreme Pontiff is required, which is required also for abandoning monasteries already built. C. un. de Excess. praelator. in 6; Benedict XVI, C. Instaurandae, de Syn., l. 9, c. 1, n. 9; Leo XIII, C. Romanos Pontifices, VIII Id. Maii 1881; Ferraris, v. Regulares, art. 2; L. 72, 74, 82, 83, 91.

The Bishop proceeds also against exempt persons, in causes of faith, as an Apostolic delegate. And in causes of faith of this sort, which pertain to the Holy Office, Regular Prelates cannot involve themselves; and whether they themselves or other religious, not denouncing to the Holy Office, or impeding superiors, subjects, or confreres who are heretics or suspect concerning the faith from being denounced to the same Holy Office, incur excommunication. Commonly speaking, it is certain that regulars who dwell in mission residences are exempt from the jurisdiction of the Ordinary, although they are few in number; and, outside mission places, both the persons and the monasteries and churches of regulars are exempt from the visitation of the Bishop, provided that at least twelve or six religious dwell in them; indeed only three suffice at present for Italy. S. C. EE. et RR., 26 Mar. 1897. But except: 1. Churches of seculars whose pastor is a religious. 2. Churches of regulars, if they are parishes, yet only as regards those things which look to the parish and to the pastor, insofar as he carries out that office. Cf. Benedict XIV, C. Firmandis, 4 Nov. 1744; Leo XIII, C. Romanos Pontifices, VIII Id. Maii 1881; Benedict XIV, de Syn., l. 3, c. 2, n. 1; A. S. S., vol. 38, p. 147.

The Bishop can oblige secular confessors, and also regulars, to the conference of Cases of Conscience, if they do not have it in their own Convents. In England and Scotland, all Rectors of Missions, Vicars, and other religious men, missionaries, who inhabit hospices and small Mission houses, must attend the conferences of the clergy from the cited Constitution of Leo XIII, Romanos Pontifices. Regulars in mission places, deputed to the care of souls, can be recalled by their superiors, or removed by the bishop, according to equitable judgment, no cause assigned by either, Benedict XIV, C. Firmandis; but if the regular superior recalls them, he must propose others to be substituted, with the Bishop approving, S. C. de P. F., 27 July 1882. Insofar as they are religious, they are subject to Regular Superiors; but insofar as they exercise the care of souls, to the Vicar Apostolic. S. C. de P. F., 18 Jan. 1886. Likewise the goods of religious are exempt from the jurisdiction of the Bishop. But administrators of monasteries of nuns must render an account to the Bishop of the administration of goods. L. 79, 80, 81; Benedict XIV, Inst. 29. As regards more recent Institutes of simple vows which have already been approved by the Holy See, the Bishop can demand no account of the administration of goods which those same Institutes possess, Leo XIII, C. Conditae a Christo, VI Id. Dec. 1900. They render this account every three years to the S. C. of Religious. Cf. A. S. S., vol. 25, p. 622 ff.

Constitution of Leo XIII, Romanos Pontifices, VIII Id. Maii 1881. Some heads of controversies concerning Bishops and Regular Missionaries of England and Scotland are defined. The aforesaid Constitution was then extended to many other places, to all Latin America, Plenary Council of Latin America; to the Philippine Islands, Secretariat of State, 1 Jan. 1910; to all the provinces of the Canadian Dominion, S. C. Cons., 14 Mar. 1911. It is disputed whether regulars can have recourse to the Bishop for obtaining graces. Many deny it, founded on this, that such recourse implicitly says a desertion of exemption. Others better affirm with Schmalz., l. 2, t. 2, n. 149, and Bouix, de Iud., vol. 1, p. 256, and teach that recourse to the Bishop is licit in those things which pertain to gracious jurisdiction, of which sort is absolution from sins and censures; dispensation in vows, oaths, irregularities; in laws of recitation of the breviary, fast, etc. But they require a threefold condition, namely: 1. that the Pope or his legate cannot easily be approached; 2. that the superiors of the order lack the faculty of dispensing; 3. that there is permission of the prelate, at least presumed. Cf. 263. But there is no doubt that regulars can use Lenten indults, which are rather given by the Holy See and promulgated by Bishops, unless they are prohibited by a special vow. S. O., 20 Dec. 1871. - E. M. Modern Institutes approved by the Holy See also enjoy exemption as regards internal government. Cf. cited Leo XIII, Conditae a Christo, A. S. S., vol. 28, p. 499 ff.

As regards the Eucharist. - Besides public churches, Regulars also have private oratories. Now they can admit others in both, both for celebrating and for hearing the prescribed Mass. In public churches they retain the Most Holy Sacrament. But the license of the Ordinary is necessary for regulars, even exempt ones, so that they can publicly expose the Most Holy Sacrament uncovered; yet this is by no means required either for exposing the sacred Eucharist veiled, with the people present, or for exposing it uncovered, seculars being excluded. From the Constitutions of Julius II, Paul III, and St. Pius V, regulars can distribute the Most Holy Eucharist daily and to individual faithful, not even excepting Easter day. Regulars cannot in any way be prohibited by the Bishop from distributing the Most Holy Eucharist in their churches from Palm Sunday to Low Sunday.

Thus S. C. C., 9 July 1644; S. C. C., 27 Nov. 1912. Cf. Benedict XIV, de Syn., l. 9, c. 15, 16; l. 11, c. 14. Pius VI, 14 Jan. 1783, granted to the Congregation of Purity the faculty of celebrating two hours after midday and before dawn; and all who have communication in the privileges of regulars enjoy this privilege. "Regulars can celebrate one hour before dawn; wherefore they can celebrate Mass three hours before sunrise. Indeed, when some just cause is present, they can celebrate immediately after two hours after midnight. And this holds only for their own churches; in which, however, secular priests can also use a privilege of this sort. Moreover Eugene IV granted to regulars license of celebrating three hours after midday, yet from a just cause."

L. 122; Salmant., tr. 15, c. 7, p. 4, n. 94, 45; Pellizzar., Manuale Regul., tr. 8, c. 2, n. 97. But the same Holy Doctor hands down the opposite, l. 6, n. 342. Moreover in this latter place, n. 344, the Holy Doctor affirms that the faculty is present to all superiors of dispensing, in some particular case, from a reasonable cause, concerning the hour of Mass, "privilege set aside, toward their own religious, since they are their Ordinaries." Mendicants, at least superiors or prelates, have the privilege of blessing sacred vestments. L. 62, 121, 123; l. 6, n. 239, 240, 300, 357, 360, 363, 376, 378, 381; H. A. tr. 12, n. 41; Lugo, de Euchar., d. 18, n. 49-50; Diana, tom. 2, tr. 2 de Praec. div. et eccles. sacrae commun., r. 22, 23; Compend. Privil. Soc. Iesu, n. 409; E. M.

As regards Confession. - Regulars cannot confess licitly and validly except to Confessors deputed by their own Superiors. "With seculars, when the faculty of choosing a confessor for oneself is granted, it is always supposed that he is approved by the Bishop; but regulars, from express or tacit license of their own superior, can confess to any simple priest... Wherefore all regular superiors can choose for themselves as confessor any priest." L. 110.

As regards cases reserved in the order to be absolved, the faculty can and ought justly to be denied by the superior if there is question of harming others, i.e., when scandal or any harm whatever would perhaps be imminent either to religion, or to the house, or to another, or to the penitent himself; nor could it be met otherwise except by furnishing knowledge of the matter to the superior. But, "if the superior denies to the confessor of regulars, deputed for this, the faculty of absolving, but the confessor judges that it ought to be granted, he can absolve on that occasion," i.e., as often as that case occurs. This is established from the Decree of Clement VIII. Cf. Constitution of Urban VIII, Sanctissimus, 21 Sept. 1624; Ferraris, v. Praelatus regularis, n. 58; Pellizzar., de Monial., c. 9, n. 29.

Exempt Regulars are not subject to episcopal reservation, since they are exempt from the jurisdiction of the Bishop. Indeed neither novices nor familiars of regulars are subject to the reservation of Bishops. Thus from the Bull Superna of Clement X. But if a novice has fallen into a reserved case before entrance into religion, he can be absolved by the confessor of the religion by privilege. - L. 102, 103, 111, 112; l. 6, n. 583, 586, 602. Religious of Institutes of simple vows are altogether subject to episcopal jurisdiction as regards censures and reservation of cases, as also as regards dispensation of non-reserved vows and dispensations which local Ordinaries impart to their faithful.

C. cited Conditae a Christo. The Supreme Pontiff Pius X decreed that all Confessors approved in the City can hear the Confessions of all Regulars, of whatever Order, Congregation, Institute they may be, without any permission of Regular Superiors; and therefore they can also absolve them from all reserved cases in the same religious Orders, Congregations, Institutes, even with censure. S. C. de Relig., 8 Feb. 1903; Pagella Confessarior. in Urbe. The same Supreme Pontiff afterward extended this faculty to all Confessors of the whole world approved by local Ordinaries. S. C. de Relig., 5 Aug. 1913.

As regards orders. "Regulars do not receive dimissorial letters from Bishops, but from their superiors; otherwise they sin gravely, and incur suspension... They can be ordained outside the times," nevertheless on feast days and interposed days, unless they have another special privilege. L. 113, 115; l. 6, n. 797. Cf. Cas. Consc. de Ord., and here vol. 2, n. 906, 907, 1222. A privilege was granted to the Congregation of St. John the Evangelist by Clement VIII, 23 Nov. 1596, that its alumni be ordained without the interstices being observed. The same privilege was likewise granted to the Order of St. John of God by Pius IV, B. Circumspecta. Wherefore other Orders which have communication of privileges with these Orders can do the same. But directly this privilege was granted to the Society of Jesus by Gregory XIII, Const. Pium et utile, but in this Constitution a faculty of this sort is excluded from communication of privileges.

As regards preaching. - Outside the churches of their own orders regulars cannot preach without having obtained the license of the Bishop. - But in the churches of their own order they can preach, the blessing of the Bishop having been sought, even if they have not obtained it, provided nevertheless the Bishop does not contradict. A Bishop about to grant license to regulars wishing to preach in churches which are not of their own orders can examine them as to doctrine, although they have been nominated by universities or by lay magistrates, and even if the predecessors of the Bishop had been accustomed for immemorial time to grant this license without examination, if this seemed good to his judgment, which ought to be moderate and discreet. But as to those wishing to preach in the churches of their own orders, it does not belong to the Ordinary to examine them, but to their superiors. The Bishop can suspend the license of preaching once granted to them, for reasonable causes, although hidden, yet concerning preaching. Nevertheless the Bishop cannot prohibit regulars generally from preaching in the churches of their own orders. - From the Council of Trent they are first to be examined and approved by their own superiors concerning life, morals, and knowledge. Trent, s. 5, c. 2 de R.; s. 24, c. 4 de R.; Gregory XV, B. Inscrutabili; Bouix, p. 148, 263 ff.; L. 124 ff.; S. Th. 2. 2. q. 187, 188.

As regards ecclesiastical censures. The privileges of absolving from papal cases having been revoked by the Constitution Apostolicae Sedis, regulars can still absolve from cases reserved to Bishops by the same Constitution, and from the censure of the canon, as before the aforesaid Constitution. - All regulars of either sex, in the time of a general interdict, can privately perform divine offices in their monasteries and receive the sacraments; and they can also celebrate publicly on several feasts: Easter, Pentecost, etc. L. 95 ff.; l. 4, n. 61.

As regards irregularity. - "Regulars can dispense with their subjects in all hidden irregularities in which Ordinaries can dispense with their diocesans. And they can do the same with seculars." L. 104. "They can besides dispense with subjects in any irregularity, either on account of delict or on account of defect," namely those which are usually regularly dispensed. L. 105; Frassinetti, Comp., 6th ed., vol. 2, n. 681. In the cited place the Holy Doctor soon descends to particular cases, concluding: "Finally regulars can dispense with their subjects in all inabilities and penalties contracted by reason of delict... even if those are reserved to the Pontiff." Cf. L. l. 7, n. 355, 358, 364, 396; Lehmkuhl, 11th ed., vol. 2, n. 834.

As regards the right of burying. - When a deceased regular cannot be buried in the church of the convent, because, e.g., of civil law standing in the way, regulars can carry the corpse to the common cemetery, with stole and cross of the convent, without the intervention of any pastor, provided nevertheless that the corpse is carried without solemn pomp and by a direct path to the cemetery S. C. EE. et RR., 24 Jan. 1846. The same right belongs to exempt nuns: wherefore it pertains to their chaplain or confessor to conduct the funeral, the pastor being excluded. Now the solemnity which is prohibited does not consist in singing, but in the gathering of the people, in the assistance of ministers clothed in sacred vestments, etc. S. C. EE. et RR., 26 Feb. 1864, declared: "Dispersed religious as regards funerals are subject to the pastor of the place, just as the other parishioners." A. S. S., vol. 1, p. 168. L. 91 ff.; Bouix, p. 345; E. M.

As regards oaths, vows, impediments of marriage, ecclesiastical precepts. Cf. 246. Here it must be noted that it is not improbable to St. Alphonsus what very many affirm, namely, that regulars can in a case of necessity dispense with spouses, as Bishops can, in a vow of chastity for contracting marriage, l. 3, n. 258; l. 6, n. 1128. It must also be noted that there is no privilege of reciting the office only mentally. No regular order has ever used such a privilege, nor do the Friars Minor themselves, to whom such a privilege is said to have been granted, acknowledge it. Custom is the best interpreter and proof of laws. Cf. Lugo, Resp. Mor., l. 3, d. 18; Melata, de Recit. mentali div. off. Nevertheless there are many other privileges, especially as regards missionaries, as may be seen in the Compendium of the Privileges of the Society of Jesus.

As regards indulgences. - "All professed regulars enjoy the indulgences granted to any religious order," L. l. 4, n. 64, namely according to the Brief of Leo X, Dudum per Nos accepto, 10 Dec. 1519, and the Brief of Paul V, Romanus Pontifex, 23 May 1606, indulgences exclusively proper to each order being excluded from this communication, S. C. Indulg., 25 Apr. 1735; Theod. a Spiritu S., p. 2, p. 88 ff., p. 114. "It must be noted that the privilege of a privileged altar is not communicable by general communication of privileges, from the Decree of S. C. Indulg., dated 5 Feb. 1748, and approved by Benedict XIV on 2 Mar. of the same year." L. l. 6, n. 339. More recent nuns of simple vows, in France, of ancient religious orders, from a special indult, "can gain all indulgences which were granted to the religion or Institute of other nuns emitting solemn vows, according to the respective Institute or rule." S. C. Indulg., 10 July 1843; S. Poenit., 12 July 1847.

But Institutes of Tertiaries dwelling in Community and emitting simple vows participate in all Indulgences directly granted to the First and Second Orders, provided they are legitimately aggregated to the Orders. S. C. Indulg., 28 Aug. 1903; E. M., de Stat. part., n. 248.

It must further be noted that personal privileges and indulgences in churches of regulars vanish when the religious have been driven out, although some religious remains in the church as chaplain or custodian. But real privileges, such as the right of burying, when a religious is left there under the name of chaplain or custodian, must be exercised by him. S. C. C., 29 May 1841; 29 Aug. 1864; 16 Sept. 1871; S. C. Indulg., 24 May 1819; A. S. S., vol. 1, p. 287; vol. 4, p. 228; vol. 7, p. 34. - E. M.

281 bis. Secular Tertiaries of St. Francis, by force of the Apostolic Letters of 5 May 1909 and the Rescript of 17 May 1909, enjoy communication of all Indulgences and spiritual fruits with the First and Second Order of St. Francis, the extension then having been made to General Absolutions. S. O., 12 June 1913, A. A. S., vol. 5, p. 306 ff. Secular Franciscan Tertiaries reciting in place of the canonical hours twelve Our Fathers, Hail Marys, and Glory Bes cannot by this recitation alone satisfy all other obligations, as regards prayers, which they have contracted from enrollment in other pious sodalities. S. O., 11 June 1913. Third Orders proceeding collegially, in their own habit and under a cross, always and everywhere have precedence over any Sodalities whatsoever. S. R. C., 18 Feb. 1899; E. M.

Latin America. Many privileges were granted to Latin America by the Constitution Trans Oceanum of Leo XIII, 18 Apr. 1897. This Constitution, as also the Constitution Romanos Pontifices of the same Leo XIII, VIII Id. Maii 1881, was extended to the Philippine Islands. Cf. 272; A. A. S., vol. 2, p. 220. Children of mixed persons or mestizos can use the privileges granted to Latin America by Leo XIII through the cited Letters Trans Oceanum, provided both parents are truly mixed or mestizos, that is, each of them separately has an absolute half of Indian or Black blood. S. C. NN. EE. EE., 15 Sept. 1908. - To the Bishops of Latin America and of the Philippine Islands many other faculties were granted for ten years. They are contained in Suppl. II, p. 11 ff. They can, among other things, lease ecclesiastical goods up to nine or twelve years; alienate ecclesiastical goods up to the value of 20,000 lire; and, except for certain designated principal parishes, confer all the rest without a concursus and at will; and they can also confer canonries of office without a concursus. - The Bull of Crusade having been abrogated for all Latin America and the Philippine Islands, and likewise the Lenten Indults and Summaries having been abrogated, a new recent Indult for ten years, concerning abstinence and fast, was granted to all, without petition being necessary or any tax to be paid. And this Indult can be used also by Regulars not bound by a special vow, and even as regards abstinences and fasts prescribed in their own Rules. By force of this Indult, fast without abstinence is to be observed on Wednesdays of Advent and Lent. Fast with abstinence is to be observed on Ash Wednesday, Fridays of Lent, and Thursday of Holy Week. In the morning collation, milk-products are permitted, eggs excluded. Abstinence from meats without fast is to be observed on the four vigils of the Nativity of Our Lord Jesus Christ, Pentecost, the Assumption of the Blessed Virgin Mary, and the Holy Apostles Peter and Paul. - This indult also has force in all the Antilles and the other islands of the Caribbean Sea. S. C. NN. EE. EE., 10 Dec. 1912. - E. M.

Spain: In Spain, the jurisdiction of Ordinaries over Religious cast out from the cloisters in the year 1835, if any of them still survives, and over exempt monasteries of nuns, was prolonged for three years. It is the mind of His Holiness that Ordinaries, unless because of peculiar circumstances of things and monasteries they should judge otherwise in the Lord, in deputing vicars, confessors, moderators, or spiritual directors of the same monasteries, should choose Religious of the same Order, insofar as they are found endowed with knowledge, uprightness of life, prudence, and the other qualities. Therefore Ordinaries themselves will be able, without further Apostolic faculty, by themselves to depute as ordinary Confessors Religious of the respective Orders, nevertheless with the previous consent of the respective Regular Superiors, this law always being observed, that the same Religious designated as Confessors live in their own Convent, unless in some determined case and on account of altogether peculiar circumstances the Most Reverend Ordinaries together with the Major Superiors of the Order have obtained and secured a special Indult from the Apostolic See; with the other things to be observed by law being observed as regards the triennial change of ordinary Confessors, and the remaining Apostolic prescriptions. Likewise the Ordinaries themselves will be able, if and when they judge it opportune, to employ Regular Superiors to perform the canonical Visitation of monasteries of the respective Orders. Yet these Visitators have only those faculties which the Most Reverend Ordinaries have committed to them, and which, notwithstanding this delegation, remain intact for the Bishops. S. C. Relig., 24 May 1911.

Crusade: The Bull of Crusade contains many privileges. It still flourishes in Spain. The poor in Spain, in order to enjoy the Lenten Indult, are not held to give alms; but they are held if they wish to enjoy the other privileges of the Bull of Crusade. The poor in Spain, not having paid the alms assigned for the Bull of Crusade, can enjoy the Indult as regards eggs and milk-products which is contained in the aforementioned Bull. Equestrian Orders: Their privileges are contained in the Brief of Pius X, 7 Feb. 1905, and in the Letters of 3 May 1909 to the Patriarch of Jerusalem. To Knights of the Golden Fleece the privilege of a portable Altar does not belong. S. C. de Sacram., 19 Jan. 1912.

What sort is the due place? - It suffices for satisfying the obligation of hearing Mass to hear it in some public church, in a public oratory, or in a semi-public oratory; nor is there an obligation to hear it in the parish church. But he does not satisfy the precept who hears Mass in a private oratory, a special privilege being excluded.

The first part is proved: 1. from regular privileges granted even after Trent. This is clear especially from C. of St. Pius V, Etsi mendicantium, a. 1567; 2. from legitimately prescribed custom; 3. from the very common and certain opinion of the doctors, and especially from Benedict XIV, de Syn., l. 11, c. 14, where he asserts that Decrees of Councils and Supreme Pontiffs establishing the obligation have been derogated by contrary universal custom, which constitutes a certain common law, against which Bishops cannot rise up either licitly or validly. Struggl 39; L. 320 seqq.

Private oratories are chapels erected in a private house from privilege granted by the Supreme Pontiff, so that divine mysteries may be performed there for the convenience of some private person or family. S. R. C., 23 Jan. 1899. Those oratories are not judged private, but are to be held public, which are legitimately erected in seminaries, monasteries, or houses of religious men or nuns, or of other communities, as in conservatories, prisons, hospitals, and also in the houses of Bishops and Cardinals. For these houses are not private. But because access is not freely open to all the Christian faithful in oratories of this sort, they are more properly called semi-public.

Sometimes, moreover, an oratory in the houses of private persons can simply be held as public. But for this it is required: 1. That entrance open onto a public road. 2. That it be subject to no servitude disapproved by Canon Law, and that access cannot be forbidden to anyone by the owner. 3. That it be dedicated in perpetuity to divine worship. 4. That revenues sufficient for divine offices be established. Cf. nn. 262, 273; L. 319, l. 6, n. 357; Benedict XIV, de Sacrif. missae, l. 3, c. 6, n. 6; S. R. C., 2 Jul. 1661, n. 1196.

A fixed chapel on ships is public for those sailing and for others, and therefore all who assist at Mass in the said chapel, even when the ship is in port, satisfy the precept. S. R. C., 4 Mar. 1901; 10 May 1901.

The second part is proved. From the very Briefs of concession it is had that those who are present at Masses in private oratories do not satisfy the precept, unless they are the owners; or their relatives, namely consanguineous and affinal relatives up to the fourth degree, who dwell in the same house and live at their expense, as St. Alphonsus, n. 318, wishes, or as Gatticus, n. 11, notes, although they do not constitute one family; or unless they are their noble guests, and also those who are invited to dinner by the privileged person; or unless they are domestics, namely those who are occupied in the service of the owner and live at his expense, and are domestics actually necessary for furnishing services, namely whose presence in the oratory at the time of Mass is necessary, although these dwell outside the house. They are present, and therefore the celebrating priest and the minister serving satisfy the precept.

But for these it is required that someone be actually present from those to whom the indult was principally granted. The indult, moreover, is understood to have been principally granted only to those to whom the Brief is directed, namely those persons who are named by their own name on the back of the same Brief, or who are named at the beginning of the Brief if the Brief is directed to the Ordinary of the place. But, from the Norms of S. C. de Sacram., a simple concession of an Oratory imports, besides one Mass and the determination of the place, satisfaction of the festal precept for the indultaries alone, with the twelve more solemn days excluded, and for France four.

The more solemn days from the Ceremonial, l. 2, c. 34, § 2, are: the feasts of the Nativity of the Lord, Epiphany, Thursday in the Supper of the Lord, the feasts of Easter, Ascension, Pentecost, Annunciation, Assumption, the Blessed Apostles Peter and Paul, All Saints, the Saint Titular of the Church and Patron, and the Dedication of the Cathedral Church. S. R. C., 10 Apr. 1896. Therefore the rescript must be attended to, because several extensions can be made. And if the concession is had for the day of the Nativity, three Masses can be celebrated. S. R. C., 20 Jan. 1725. And indeed on these feast days, if they are of precept, with Thursday of Greater Week excepted, it is altogether forbidden to celebrate in oratories of this sort. Yet if the festivity is transferred to the following Sunday, celebration on the proper day is not prohibited. S. R. C., 6 Mar. 1896, n. 3890. No day is excepted when the oratory is conceded by the Pontiff because of illness. Cf. 260 bis, 262, 273; L. 318, l. 6, nn. 357, 359; La-Croix, l. 3, p. 1, n. 626 seqq.; Gattic., de Orat. priv., c. 25, nn. 23, 24; E. M.

After the Motu Proprio of Pius X, Supremi disciplinae, 2 Jul. 1911, by which feast days were diminished, and also the Decree of S. R. C., Urbis et Orbis, 24 Jul. 1911, after the Motu Proprio had been promulgated, from the Decree of S. C. de Sacram., 5 Apr. 1913, Mass in private Oratories is not prohibited on the feast days of the solemn Commemoration of St. Joseph, the Annunciation of the Blessed Virgin Mary, the solemn Commemoration of the Most Holy Body of Our Lord Jesus Christ, and on the feast of the Patron of each place. Nor is it prohibited on the feast of the Most Holy Trinity, on the Sunday within the Octave of Corpus Christi, and on the Sunday on which the Nativity of St. John the Baptist is celebrated.

In private oratories in which Mass is celebrated, the Eucharist can also be distributed to communicants. Public oratories are to be consecrated or solemnly blessed. Private oratories are blessed only with the formula which is contained in the Ritual for a new house or place. S. R. C., 5 Jun. 1899, n. 4025. Private oratories, although blessed, are not judged to be polluted, and therefore do not need reconciliation. For obtaining the concession of a private Oratory, the Norms published concerning it by S. C. de Sacram., 7 Feb. 1909, are to be attended to. In Norms of this sort various extensions of the concession are had, as to those who can enjoy the Indult, as to the absence of the Indultaries, as to the number of Masses, as to days, and as to place.

When is a contract of divisible or indivisible obligation had? A contract of obligation is divisible or indivisible from a divisible or indivisible object; namely if it is composed of some thing which, when it is handed over, or of some deed which, when it is put into execution, can be divided, or not, whether from the nature of the thing, as a horse; or from law, as a mortgage; or from the acceptance of the contracting parties, as a pair of horses. C. I. 1202; C. G. 1217. If you have bought one hundred casks of wine and twenty perish, the purchase still holds if it was made divisibly. If you donate a horse, and then learn that the horse is not only yours, but yours and your brother's at the same time, the donation does not hold, since it was made indivisibly. From C. G. 1330, obligations are indivisible among the parties; they are applied divisibly only to their heirs. If a debtor dies, to whom there are several heirs, if he himself obligated only one to pay, the obligation is indivisible; otherwise the debt will be divisible.

Likewise, if a creditor dies, to whom there are several heirs, if he himself leaves the credit to only one, who can exact the whole credit, it will be indivisible; otherwise it will be divisible. C. I. 1204, 1205; C. G. 1220, 1221. Those who indivisibly owe something, each owe the whole but not wholly; and those who indivisibly are creditors of some thing or work, the whole is owed to each, but not wholly.

The whole, because the thing is indivisible. Not wholly, because the right or obligation of the whole is not in each one, but in all; and thus if two promised you one hundred gold pieces for buying an estate, both owe you one hundred; hence each is bound to the whole, but each one of them does not owe to give you one hundred, and therefore they are not bound wholly. For this reason he who pays or receives seeks back from the rest, or communicates with the rest, according to each one's part. C. I. 1206, 1207; C. G. 1222 ff. - C. H. 1149 ff.; C. A. 888 ff.; C. B. 356, 420.

If several are obligated divisibly to one, or one is obligated divisibly to several, for example if Titius, Sempronius, and Caius owe 90 lire to Aurelius, or Aurelius owes 90 lire to Titius, Sempronius, and Caius, and Titius, for example, is unable to pay his part of the debt, the other two are not therefore burdened; and if Titius condones to Aurelius his part of the credit, Aurelius is not therefore freed from paying his part to Caius and Sempronius.

Therefore generally if one of the creditors has remitted the debt, or the debt has been remitted to one of the debtors, the whole thing is owed to the remaining creditors, and the remaining debtors owe the whole thing, but with the price of that part repaid which belonged to him who remitted, or to whom it was remitted. If three persons divisibly sell an ox to someone, and by the fault of one after the sale and before delivery the ox perishes, the other two furnish nothing, and nevertheless exact the whole price, namely what is owed to themselves for a third part to each. Pothier, delle Obbligaz. n. 273. If several have divisibly promised one and the same individual thing to one person, for example to build a house, and they have not built it, each is liable for his part of the damage. C. I. 1216; C. G. 1232. Cf. Troplong, della Vendita cap. 4. a. 1647. n. 576 ff.

What order is to be observed in restitution as regards creditors? - The order, as regards creditors, of restitution does not have place unless there are several creditors. In such a case, if the debtor can satisfy all, he can restore in whatever order, because the precedence of one inflicts no damage on another. But if the debtor cannot restore to all, the due order in restitution is to be observed, on account of the opposite reason, namely because the precedence of one inflicts damage on another. Moreover this order is determined by justice itself. For restitution is the reparation of an injured right. Therefore the preference of right determines the precedence of restitution. Now this injured right is the right of property. Therefore a more perfect right of property in creditors demands that they be preferred to others. L. 684.; C. L. 878. Wherefore, first, creditors who are still truly owners of the thing are to be preferred to all others, since they preserve in their own thing not only a right to the thing, but also a right in the thing, while the others have only a right to the thing. And so before all other debts stolen things, deposited things, leased or lent things are to be restored. Secondly, privileged creditors are to be preferred to the rest. For restitution is to be made by natural right, and on account of the private good of persons, which commutative justice directly regards. Therefore, if positive right is added to natural right, prescribing for the common good the preference of some creditors in particular, these indeed by reason of the privilege of the law are to be preferred to the rest, as privileged. And this law obliges in conscience according to the common opinion of theologians, since it is a legitimate law of a superior, passed for the common good. C. G. 2095.; C. I. 1945. Some privileged debts have a privilege over the generality of movables, others over determined movables, others over immovables. If there are several privileged creditors, their preference is determined by the law itself according to the quality of the privilege. And, if several enjoy the same privilege, they obtain payment of the credit pro rata. C. G. 2096, 2097.; C. I. 1953, 1954. Privileged debts over all movables, and subsidiarily over immovables, are in this order: expenses which are called those of justice, funeral expenses, expenses made for illness from the last six months, expenses for support from the last six months, wages of servants also from the last six months, and credits of the State for direct taxes.

C. I. 1956, 1959, 1963. Cf. C. G. 2101, 2105.; C. H. 1924.; C. L. 880 seqq. - C. I. 1952 seqq.; C. G. 2092 seqq.; L. 14 § 1, L. 45 de Relig. et sumpt. etc. Privileges over determined movables are: certain determined credits of the State; of the emphyteutic canon; of leases of urban and rustic estates; of expenses for cultivation of fields; of the pledge creditor; of expenses for the conservation of the movables themselves; of innkeepers; of transportation and taxes; of indemnity to be furnished by public officials; of sums to be paid by public administrators. C. I. 1958 seqq. Cf. C. G. 2102.; C. H. 1922.; C. L. 880 seqq. Privileges over immovables are: credits for expenses of expropriation of immovables; of the State for land taxes, for rights of registration, for any other indirect tax. C. I. 1961, 1962. Cf. C. G. 2103.; C. H. 1923, 1927.; C. L. 887. Privileges over immovables do not have effect unless they have been legitimately inscribed in the conservatory registers of mortgages. C. G. 2106. Cf. Tropolong in h. a. Thirdly, mortgage creditors are to be preferred to the rest, for these have bound to themselves not only the person, but also the very goods of the debtor. Where there are several mortgage creditors, they have the order constituted by the law itself, either from the day of inscription in the conservatory registers of mortgages, or from the very day of the constitution of the mortgage, according to Reg. 54 of Canon Law in the Sixth: He who is prior in time is stronger in right. L. 690.; Laymann de Restit. c. 11, n. 3 seqq.; C. I. 1964 seqq.; C. G. 2114 seqq.; C. H. 1928, 1929. Fourthly, finally, the remaining creditors, who are called common or chirographary, are to be made harmless. But whether among these some order is also to be established from circumstances of time, persons, contract, delict, and of the things themselves, is a question; and some generally deny it, because commutative justice regards only equality of thing to thing, which is altogether independent of conditions of times, persons, contracts, and the things themselves; others on the contrary generally affirm, because restitution is for repairing an injured right and for making good the damage inflicted; but from various circumstances of time, persons, contracts, things, the right is various, and the damage is less; therefore according to those circumstances an order is to be established in restitution even of common creditors. But chiefly those circumstances are the ones about which the following particular questions are raised. L. 689, 694, 695. From C. I. 1948-1950, 2092.; C. G. 2092-2094.; C. H. 1911., whoever has obligated himself personally is held to satisfy his obligation from all his goods, whether movable or immovable, present or future. Therefore the goods of the debtor are like a common pledge of his creditors, and they are equal in the right of exacting what is theirs, unless legitimate causes of preference exist among them. But the legitimate causes are privileges and mortgages. Wherefore all the others are esteemed equally, and all concur pro rata, if the debtor cannot satisfy all. - C. H. 1921 seqq.

Do apostates and fugitives remain bound by the same obligations? - R. In the affirmative, for they are released by no obligation legitimately. - If these and those acquire anything, when they have died it belongs by right of spoil to the Apostolic Camera. Gregory XIII, C. Officii nostri, January 27, 1577. - Lugo, de Iust. et Iur. d. 3, n. 235; Resp. Mor. l. 4, d. 37; Ferraris v. Apostasia, n. 21 ff.; L. 80, 82.

For apostasy from an Order or Institute, unless the Religious has returned within three months; and for flight from a Monastery, taking a woman with him, "the penalty of expulsion or dismissal is judged as if brought by law." S. C. of Religious, May 16, 1911.

Are those cast out and dismissed free from the said obligations? What about those secularized? - R. To the first: In the affirmative as regards merely regular observances; for by sentence, separated from religious life, they are no longer bound by the observances proper to religious life. Religious solemnly professed, not yet initiated in sacred orders, who are cast out or return to the world from Indult of the Holy See, are also released from the burden of the breviary. Cf. n. 112. - R. In the negative as regards vows, if it is a question of those solemnly professed; for by ejection they by no means cease. Hence they are held under grave obligation to amend themselves. Those cast out must walk in clerical habit and tonsure and be subject to the Ordinary of the place, also by force of the vow of obedience. Urban VIII, Decree de Apost. et eiect., 1624. They cannot make a testament, and whatever they acquire, by right of spoil, when they have died, pertains to the Apostolic Camera, excepting those things which they have preserved or acquired from goods of the religion. Gregory XIII, C. Officii nostri, 1577. In the meantime they have administration and use of goods, nor is it inspected how they expend them; but they can claim no dominion for themselves. St. Pius V, C. Grave nobis, May 26, 1560. - R. In the affirmative as regards vows, if it is a question of simple vows. For those dismissed and cast out are ordinarily accustomed also to be dispensed from simple vows, either by their own superiors, if they have such faculty, or by the Holy See. Bishops in France can dispense nuns of the ancient orders, who emit only simple vows, while the vow of chastity remains firm. S. Penitentiary, December 23, 1835. - Innocent XII, July 24, 1674; L. 79 ff.; St. Thomas Quodl. 12, a. 36; Ferraris v. Eiicere; Benedict XIV, de Syn. l. 13, c. 11, n. 19, 20; L. 142; E. M. "All Religious constituted in sacred orders, expelled or dismissed, remain perpetually suspended.... Clerics not in sacred orders are prohibited from ascending to higher orders. But all who have been expelled or dismissed, even if they have truly amended themselves, will not be able to be admitted to their own or another Order or Congregation without special license of the Holy See." S. C. of Religious, May 16, 1911.

R. To the second: Secularization contains the faculty for a Religious of living in the world. He is still held by vows. He is held, by force of the vow of obedience, to obey the Ordinary of the place. S. C. of Religious, September 1, 1912. He can make honest and licit expenses; but he does not acquire dominion of those things which are given to him. Hence he cannot dispose of them, and when he has died, they pass to the Camera of spoils. Nor indeed can he obtain ecclesiastical benefices without a new Indult.

Indults of perpetual or temporary secularization, or of relaxation of perpetual vows, or even only of temporary vows, or of the oath of perseverance, or of certain particular promises, granted to priests and clerics constituted in sacred orders, are always understood with the following clauses, even if not expressed, dispensation from which is reserved to the Holy See, namely: They are forbidden, without a new and special indult of the Holy See: 1. any office, and, as regards those who are habilitated for benefices, any benefice in cathedral basilicas; 2. any teaching office and office in major and minor clerical seminaries and other Institutes in which clerics are educated, as well as in Universities and Institutes which enjoy apostolic privilege of conferring academic degrees in philosophy, theology, and canon law; 3. any office or function whatsoever in episcopal Curias; 4. the office of Visitor and Moderator of Religious houses of either sex, even if it is a question of merely diocesan congregations; 5. habitual domicile in places where there exists a convent or religious house of the Province or Mission to which the secularized priest or cleric, or the one released from perpetual vows, as above, was enrolled. S. C. of Religious, June 15, 1909.

Note: Marriage is not dissolved immediately by reception of baptism; Crimes are dissolved in baptism, not marriages, C. Gaudemus 8, de Divortiis, C. Si quis 28, q. 2; but when the converted and baptized spouse enters a new union. Even after intercourse has been had after the conversion of either party, if the other party is unwilling to cohabit peacefully without insult to the Creator, the marriage can still be dissolved, whatever time has elapsed. But when the spouse converted passes to other nuptials, since the prior marriage is now dissolved, even the spouse who remains in unbelief can validly and licitly contract another marriage. - Regularly, from the prescription of the Law, C. Quanto 7, de Divortiis, interpreting the Pauline privilege, But if the unbeliever departs, let him depart, the converted party cannot pass to other vows before the unbeliever, having been interpellated, has either absolutely refused to cohabit with the converted party, or at least has been unwilling to cohabit without insult to the Creator. - If the unbeliever cannot be interpellated, because he or she is far absent and has fled, or lies hidden, several judge, apud Sanchez, l. 7, d. 74, n. 13-15, that interpellation can be omitted, because there is no obligation of impossibilities; nor is there need of it, since it is now clear with moral certainty that the unbelieving spouse is unwilling to be converted, nor willing to live peacefully. Others, with whom Benedict XIV agrees, de Syn., l. 6, c. 4, n. 3, think pontifical dispensation necessary; and the S. C. C., January 17, 1722, adhered to this opinion apud the same Benedict XIV, l. c., and the Holy Office, September 16, 1824. Cf. Collectanea S. C. de P. F., n. 1328. The case would certainly be different if the unbelieving spouse is absent from the spouse by some compulsion and wishes to be joined with that spouse; for then the unbeliever neither departs nor can depart, in which case Apostolic dispensation would be needed for the converted unbeliever, and then indeed in this sense the dispensation from interpellation which is given can be well understood. - When, in some places, by law or custom, in order to remove a peculiar danger of perversion, it is prohibited that the converted party cohabit with the unbeliever unless this one also wishes to be converted to the faith, not only must the unbeliever be interpellated whether he consents to cohabit peacefully, but also whether he wishes to embrace the Christian faith. But if, when the time prefixed by law or custom has elapsed, he has declared that he is unwilling to be converted to the faith, although from another source he would wish to cohabit peacefully, the converted spouse recovers liberty and is permitted to fly to new nuptials. For by the judgment of the Church, according to the circumstances of places, the pertinacity alone of the unbeliever in unbelief is judged to present danger for the perversion of the faithful spouse, and for insult to the Creator. - By the Pauline privilege, it is not conceded to the converted party that he can enter a new marriage with another unbeliever, or even with a catechumen, but only with a baptized faithful person. S. C. de P. F., January 16, 1683; August 7, 1891, Collectanea cit. n. 2183; L. 956, 957; St. Thomas, Suppl. q. 59, a. 3, 6; Benedict XIV, de Syn., l. 13, c. 21; Sanchez, l. 7, d. 73; Monit. Eccles., v. 11, p. 533.

When one of two unbelieving spouses is converted to the faith, the other remaining in unbelief, the converted one can receive sacred orders or profess religion. In the first case the marriage is not dissolved, and therefore if the other spouse is converted, he or she cannot contract a new marriage. Sanchez, l. 7, d. 76, n. 11. But in the other case, "it must altogether be held," says Sanchez, l. c., n. 9, "that the prior consummated marriage is dissolved through profession, just as it would be dissolved through subsequent marriage." - Ferraris, Supplementum, v. Privilegium Paulinum; E. M.

1. Gervasius, having a privilege by which he can hear Mass during a time of interdict, nevertheless omits it, because, he says, no one is held to use a privilege. The same Gervasius, suffering from a very troublesome gout, by no means can seek the church for hearing Mass on feast days. But although he can hear Mass in the private oratory of his house, of which he has the privilege, he also omits it, relying on the same principle.

Q. 1. Is he who can by privilege hear Mass during a time of interdict held to hear it? 2. Is he who cannot leave home held to hear Mass by privilege in a private oratory?

R. To the first, affirmatively. The reason is that that special privilege has no other effect than to remove the impediment of inability in the observance of the common precept, which interdict brings. Therefore, such an impediment having been removed, since consequently one is able to fulfill the law, the obligation of fulfilling the precept is in force. - To the second, probably negatively, because to do the sacred rite in a private oratory is of itself something odious, and less becoming the reverence due to this divine sacrifice. Therefore no one can be compelled to use such a privilege. Hence the distinction is clear between this case and the preceding one. For in the case of interdict, the impediment of inability having been removed by the privilege, afterwards no dispensation of law intervenes, but Mass is said in the regular way. On the contrary, in the present case, through the privilege the impediment of hearing Mass is not removed, sickness for example, but the faculty is made that Mass be celebrated and heard outside the church against the common canon, and therefore truly there intervenes here an active use of privilege, which no one is held to use. Ithuriaga, Cas. 32, n. 19, 20. Others, however, deny it. And thus G. 139 says: "Gervasius is held to use the privilege, if he can easily have a priest who will celebrate gratuitously in the oratory; the reason is that, although he is not held to use a privilege, he is held to satisfy the precept whenever he can do this without inconvenience. Indeed, the same must be said if he can hire a priest for a modest stipend, because each person is held to suffer a slight inconvenience in order to satisfy a precept.... But if Gervasius cannot hire a priest without a notable stipend, he is more probably to be excused from the obligation of Mass." - Cf. I. M. 259; Gur.-Ball. Comp. 348.

2. Odoardus sought several graces from the Supreme Pontiff. But since all the rescripts had been remitted to the Ordinary, and were to be communicated to Odoardus by the Ordinary, the Ordinary abstained from making such communication. For with respect to some, he did not judge it expedient that Odoardus enjoy those graces and privileges. With respect to others, however, he judged that the causes set forth to the Pontiff were not consonant with the truth. When this came to the knowledge of Odoardus, he indeed offered humble prayers to the Ordinary, that he would be willing to communicate the apostolic rescripts to him, yet at the same time asserting, with all reverence toward the bishop, that he himself could not impede or delay their effect.

Q. 1. What is a rescript? 2. Did the bishop act by right or by injury; did Odoardus speak rightly or erroneously?

R. To the first, cf. I. M. 283. To the second: the resolution of the question depends on the form and on the various clauses by which the rescripts were conceded. Thus, for example, the bishop indeed acts injuriously if the rescripts are in gracious form. For these rescripts are those in which the Supreme Pontiff by himself immediately makes the grace, without this being able to be impeded or delayed by another. And this has place either without any commission or execution to be given by the Ordinary, for example: The Most Holy One benignly assented for the faculty sought; or with a commission or mere execution to be given by the Ordinary, for example: The Most Holy One benignly assented at the judgment of the Ordinary for the indult sought. In the first case, there is no executor. In the other there is a mere executor, to whom a bare ministry to be executed is committed without exercise of jurisdiction, whose office consequently consists in the fact alone, nor can he assume the parts of a judge. Nor indeed by force of the clause at the judgment can the Ordinary, to whose judgment the execution is committed, abstain from the executorial decree, and impede or delay the grace immediately conceded by the Supreme Pontiff through a rescript in gracious form; for this clause, at the judgment and conscience, at the judgment and prudence, is only an expression and signification of mere fittingness and reverence, S. C. C., 6 Dec. 1845. Therefore in such a case Odoardus spoke rightly. Indeed, a mere executor, to whom rescripts in gracious form have been committed, must altogether, without any knowledge of the cause, entrust them to execution; because to the indultary, through the grace immediately conceded by the Supreme Pontiff, a right in the thing in some way has already been acquired.

But another thing must be said if the rescripts are in commissary form.

These rescripts are those in which the Supreme Pontiff does not make the grace by himself, but commits, or gives a mandate to Ordinaries that they make it if they judge it expedient in the Lord, for example: The Most Holy One remitted the petitions to the judgment of the Ordinary, with the necessary and opportune faculties for this, that he can and may be able to provide concerning the premises. Or also: The Most Holy One granted the faculty to the Ordinary of conceding to the petitioner the indult sought, if he should thus judge it expedient in the Lord. Namely, since the Supreme Pontiff himself sometimes does not have knowledge of the things with which there is then question, and otherwise does not dissent in general that the grace be conceded, he then commits to the Ordinaries that they concede the grace, by granting them the faculty for this. For they can more easily have full knowledge and certitude of the things narrated. The executor then is not a mere executor, but a mixed executor; for to him is committed not a bare ministry, but a ministry with exercise of jurisdiction. For to the executor is committed the office of verifying the things set forth or narrated to the Supreme Pontiff, and at the same time the power of conceding the grace. Whence before this execution the indultary does not have a right in the thing, but only a right to the thing. Wherefore, in this other case, if, the verification of the things set forth having been made, the Ordinary does not find them true, he rightly abstained from bestowing the grace; and Odoardus spoke erroneously. But otherwise, if, the verification of the things set forth having been made, it was established that they were true. S. C. EE. et RR., 29 Apr. 1768.

Finally, another thing must also be said if the rescripts are in mixed form, that is, gracious and commissary at the same time. These rescripts are those in which the Supreme Pontiff himself indeed concedes the grace, but dependently on conditions to be verified by the Ordinary. Wherefore the concession is quasi-conditioned, and becomes absolute when that condition is verified, for example: The Most Holy One assented at the judgment of the Ordinary, it being established concerning evident utility, and with the consent of those having an interest acceding, for the faculty sought, or sale, etc. In this case the executor is also mixed, for although there is not committed to him also the power of bestowing the grace, nevertheless there is committed the power of knowing and verifying the things set forth, and the conditions added in the rescript. Cf. Ferraris, v. Exequutor. Whence before execution there is acquired to the indultary only a right to the thing. But, as in gracious form, so in this mixed form, the grace has been made, and therefore it does not expire through the death of the Pontiff, provided that on the contrary, in commissary form, the grace is to be made, and expires through the death of the Pontiff; but when a new Pontiff has been elected, it revives, by force of rule 12 of the Chancery. Wherefore, in this case also, the bishop acts rightly if the causes set forth to the Supreme Pontiff were in reality false; and therefore Odoardus spoke erroneously. But otherwise it must be said if the causes were true, and the other conditions added in the rescripts were verified. C. 9, de Off. et pot. iud. del. in 6.; I. M. 251, 255, 283, and v. 2, 1045; Aloisius Trombetta, Praxeos Regulae circa contr. rer. eccles., c. 6.

3. Titius obtains from the Holy See the grace of a private oratory and some indulgences. Must he manifest these to the Ordinary under pain of nullity?

R. Affirmatively as regards the private oratory, because it is a dispensation, and dispensations by which derogation is made from some law, whether they are in commissary form or in gracious form, are to be exhibited to Ordinaries, so that they may either execute them or at least know them. Trent, sess. 22, ch. 2, de R. Negatively as regards indulgences, because there is no question of a dispensation, of which alone the Council of Trent speaks in the cited place, but of a mere grace. S. C. Indulg., 20 May 1896. - M. E. v. 9, p. 2, p. 142.

4. The bishop N. sought a dispensation from the Sacred Penitentiary upon the impediment of consanguinity in the second degree of the collateral line, so that Carolus D. and Iulia M. could contract marriage. For causes he set forth the almost advanced age of the female petitioner, namely 23 years and 6 months, and her condition as deprived of both parents. The Sacred Penitentiary conceded the dispensation on account of the age of the female petitioner, 24 years, and her condition as orphan. Since Iulia M. has not completed the twenty-fourth year, is the rescript valid?

R. "Since another cause for dispensing is present, nothing obstructs that the aforesaid rescript of dispensation be entrusted to execution." S. Poenit., 28 Apr. 1897. M. E. v. 10, p. 1, p. 195.

141. • A privilege is a constant and permanent favor granted by a Superior to certain persons, or to certain dignities, against or beyond common law.

A privilege is distinguished:

1. Personal, local, or real, according as it is granted to a certain person, or to the inhabitants of a certain place, or to some thing, for example to a certain Church.

2. Against the law, or beyond the law, according as through it derogation is made from some law, or not.

3. Favorable, or odious, according as it profits the privileged person with the burden of others excluded; or burdens others while it favors one.

Principles. - I. A privilege against the law can be granted only by those who can validly dispense from the law, and indeed only to subjects, just as if it were a matter of dispensation, because it is a certain kind of dispensation.

II. But a privilege beyond the law, or a privilege improperly so called, can be granted even to non-subjects, because it is not an act of jurisdiction, but an act of mere faculty and as though a donation. Thus a Prince can grant to a foreigner the privilege of hunting in his territory.

III. A favorable privilege is to be interpreted broadly. On the contrary, an odious privilege ought to be of strict interpretation. This is evinced from law, and the common consensus of the Doctors is consonant. - St. Ligorius, Appendix on privileges at the end of the Treatise on Laws, no. 7.

IV. No one is held of himself to use a privilege, because each one can renounce his own right ¹; sometimes, however, by accident the privileged person is obliged to the use of the privilege, for example by reason of charity. Hence he would sin who, having the faculty of absolving from reserved cases, would refuse to hear a sinner having reserved sins and placed in grave necessity..., etc. - St. Lig., ibid., no. 3.

¹ This does not hold with regard to privileges which are granted not so much to the person as to the condition or state. Thus a cleric cannot renounce the privilege of canon or of forum, nor a religious the privilege of exemption.

END OF THE TREATISE ON LAWS

142. Questions. - QUESTION 1. How does a privilege cease?

I answer: 1. By the death of the person, or the destruction of the thing, according as it is personal or real; 2. by lapse of the prescribed time, or by revocation; 3. by cessation of the final cause; 4. by renunciation accepted by him who can accept it.

QUESTION 2. Whether travelers can enjoy the privileges of places through which they pass, even if these are against common law?

I answer: Yes. It is established from general custom. Thus Frenchmen passing through Spain can eat flesh meats on the Sabbath day. Thus also Italians existing in France are exempted from the obligation of hearing Mass on the feast of the Epiphany of the Lord and certain other feasts, which are not observed there.

But concerning privileges in particular, it will be said in its own place, and especially concerning the privileges of Clerics, Regulars, and Bishops, in the Treatise on Particular States, at the beginning of vol. II.

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.

St. Alphonsus, de Privil.; ed. G., I, p. 187; Suarez, de Leg., l. 8, c. 1 and 22; Salmant., tr. 18.

249. DEFINITION. Privilege is defined: A private law conceding some special benefit. It is called law, not indeed imposed upon the privileged person, in regard to whom it is a grace, but upon the community, which is held not to impede the use of the privilege. Whence it is of itself a stable right, and if it is limited to a few acts, or to a brief time, this is beside the nature of privilege. It is said: private, because privileges are regularly communicated with private persons; conceding a special privilege, because it is either against or beyond right.

DIVISION. Privilege is distinguished in many ways:

1. By reason of matter, there is had: a) a privilege against right, or beyond right, according as through it derogation is made from some law, or not. Thus, for example, exemption from the jurisdiction of the Ordinary is a privilege against right; the power of dispensing is beyond right. There is had b) a privilege either favorable, which confers a convenience upon the privileged person and brings inconvenience to no one, for example, the privilege of hearing Mass in time of interdict; or odious, which confers convenience on one and prejudice on another, for example, exemption from taxes, which burdens others (cf. n. 253, 2.).

2. By reason of the subject to whom it is conceded, privilege is real or personal. That is called real which is directly conceded to some thing, office, or condition distinct from the person: for example, to some altar, so that a plenary indulgence, applicable to the dead, may be obtained by the one celebrating upon it; likewise to a Bishop as such, or to his see or office, or to some community. Personal is that which is immediately given to a person by reason of himself, as the privilege of absolving from reserved cases conceded to some confessor.

3. By reason of cause, privilege is gracious or remuneratory, according as it is conceded without any respect to merits of the privileged person or of others, for example, parents, or on account of them. Again, it is conventional or pure, according as it is obtained with some pact intervening, or without this intervening.

4. By reason of form, privilege is of the living voice or written. A privilege of the living voice is that which is conceded orally, although, for obtaining faith in the external forum, it is consigned to letters and fortified by authentic testimony. A written privilege is that which is obtained through authentic writing. It is of diverse authority, according as it is enclosed in the Body of Law, or inserted in the Body of common right, as, for example, the privileges of Churches and clerics; or given outside the Body of Law, through a special rescript (Gennari, Quest. de droit can., q. 452).

5. By reason of duration, privilege is perpetual or temporal, according as it is conceded of itself without limit, or with limit, for example, for seven years, as long as I shall live, etc. (cf. n. 233).

There are some privileges which are conceded first and of themselves, without respect to others to whom the same privilege perhaps has already been given; and there are others which are conceded after the likeness, that is, according to the mode in which they have already been conceded to another. If these last are given equally principally, they are not changed, however much the privileges after whose likeness they were being conceded are increased or decreased; if they are given accessorily, indirectly, they take upon themselves the changes of the privileges first conceded.

With these things premised, we shall say a few things: 1. concerning the acquisition, 2. concerning the use, 3. concerning the interpretation, 4. concerning the cessation 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).

251. The privileged person is not held of himself to use his privilege; for no one ought necessarily to use his own right.

Nevertheless he is held per accidens: 1. if from non-use he would be about to bring grave damage upon his neighbor; thus a confessor having the privilege of absolving from reserved cases, after confession has been heard, is held to use it; 2. if the privilege yields to the common good, as ecclesiastical immunity; 3. if through the use of the privilege the observance of a precept becomes possible: thus a sick man who has the privilege of a private oratory, and can easily hear Mass on a feast day, is held to use it so that he may hear Mass of precept;² 4. if the privilege is real, attached to a place, dignity, or state, as are privileges conceded to Bishops and regulars (ibid., n. 3).

Note. He who has a privilege for the forum of penance, of absolving from censures and ecclesiastical penalties, very probably can use it even outside the sacrament, even if the faculty was conceived in these terms "to a priest confessor." For these words strictly denote a priest approved for confession, but not one hearing confessions (ibid., n. 4).

252. You will ask. Whether and when privileges ought to be manifested to Ordinaries of places?

Resp. Privileged persons are held to exhibit to Ordinaries of places their privilege, or a trustworthy copy of the same: 1. although not required, and before they can use them, if the matter concerns privileges with the clause: the Ordinaries of places having been made more certain, or concerning new indulgences to be published; 2. when required, yet without meanwhile being able to be interdicted from the use of the privilege, if the matter concerns the privilege of exemption of some religious Institute, where that would not be sufficiently notorious. Nevertheless the Bishop cannot require the whole codex, but only the privileges concerning which he doubts: whence he ought to indicate the cause why he asks.

It suffices that exempt persons hand over to the Bishop a transcript, signed by the Superior (Provincial) and furnished with a seal, with the note: that it agrees with the original. If the privilege is notorious, let the source be indicated to the Bishop where he will be able to read the public document.

Note. Regular prelates can take away or limit the use of privileges for subjects (ibid., n. 6, at the end).

253. The interpretation of privilege is made either authentically or doctrinally.

1. AUTHENTICALLY, the prince can interpret privileges, or others to whom it has been committed by the prince.

Here it must be noted: "a) Bishops are prohibited by Clement IV and other Pontiffs from juridically interpreting privileges of regulars. Nevertheless, in a case in which the Apostolic See cannot be consulted, this was conceded by Alexander VI and Paul III to jurisconsults and other judges in favor of regulars. b) The same was conceded to Generals, visitors, and even provincials and immediate prelates, whenever they themselves consult the skilled. The same has place in the interpretation of rules, constitutions, and customs" (ibid.).

2. DOCTRINALLY, any learned man can interpret privileges; and it is lawful to acquiesce in his resolution, as all affirm (compare n. 171, 172).

The following RULES of interpretation are assigned:

1. Every privilege is to be interpreted in such a way that it is neither useless nor burdensome to the privileged person.

2. A privilege is to be interpreted broadly or strictly, according as it is favorable or odious. But a privilege is called odious which derogates from common right, or from particular statutes or customs which are not against common right, or which yields to the detriment of others; otherwise it is favorable. Therefore you will interpret strictly, for example, a privilege conceded to one illegitimate for receiving orders: namely restrict it to minor orders. But faculties conceded to religious you will extend broadly also to religious congregations and novices.

But an odious one is equated with a favorable one, and must be interpreted broadly, if either a) it is inserted in the Body of Law; or b) it is real, for on account of its perpetuity it is held as inserted in the Body of Law; or c) it is conceded with the clause: from certain knowledge, from proper motion; or d) it is a privilege of absolving, dispensing, or communicating it with others; or e) if otherwise it would be rendered useless.

"But privileges in prejudice of others, of which kind would be those for obtaining several benefices, or for conferring vacant benefices, or against regular observance, are to be interpreted strictly, even if they have been conceded from proper motion" (ibid., n. 7).

3. Privileges conceded to some Order, community, or for some pious cause are to be interpreted, according to the most common opinion, not only broadly, but most broadly, even if they are opposed to common right, or the right of some third party. The reason is, because they are presumed to have been conceded as remuneratory for services performed, and therefore are judged most favorable.

4. Where in a privilege there is had the clause: insofar as it is not opposed to the sacred canons, it is understood only concerning those canons in which there is expressed: not

notwithstanding any privilege whatever. But where there is had the clause: supplying each defect, it is understood only of defects of those things which are required by positive right, of accidental defects only, but not of defects from natural right, or substantial defects; as if the petitioner were excommunicated, or if the supplication were subreptitious or fraudulent, etc. (ibid., n. 8).

5. Privileges conceded to someone, not as to a particular person, but by reason of his office or dignity, or as to a member of that community, are understood to have been conceded to all others of the same office or community. Thus also privileges conceded to subjects, inferior prelates, a convent, etc., are judged to have been conferred upon superior prelates, other convents of the same Order, and even of others with whom communication is had, namely when the same or a similar reason operates (Salmant., tr. 18, c. 1, n. 108).

But privileges given for a determined time, or through particular Briefs and on account of a special cause, or in matters of difficult concession, are not communicated.

See more things in St. Alphonsus, or among the Salmanticenses.

254. PRIVILEGE CEASES: 1. By the fact itself, either by the destruction of the whole thing or person to whom a real or personal privilege is attached; or by lapse of the time for which it is given; or by defect of the condition under which it is conceded; or finally when the number of cases to which it was limited has been exhausted.

2. Through renunciation, express or tacit, if the laws thus establish. If the privilege is singular, that is, if it contains a private favor of the person, this person can indeed renounce his own right; but so that the renunciation be valid, it ought to become known to him who conceded the privilege and to be accepted by him. If the privilege is common, as exemption of an Order for religious, the privilege of canon, forum, and competence for clerics, private persons can in no way renounce it.

3. Through non-use, or contrary use for a space of time sufficient for prescription, if the privilege is odious, and the occasion of using it has offered itself; because, in this case, tacit renunciation of it is judged to be present. Thus, he who has the privilege of not paying tithes, and nevertheless pays them knowingly and freely, loses the privilege. This holds for the external forum; for in conscience he does not lose the privilege who does not have the mind of renouncing. If the privilege is gracious, without burden for others, as the faculty of absolving, dispensing, not fasting, celebrating before dawn, etc., it is not lost through non-use, nor through contrary use, even of a very long time. The reason: because there is no one who has the right of moving a complaint concerning it, or of prescribing against him (cf. A. A. S., III, p. 450).

4. Through abuse; because he merits losing a privilege who abuses it. Yet for this there is required a sentence at least declaratory, unless the privilege has been given under some condition which the abuse itself takes away.

5. Through express or tacit revocation. Tacit revocation is made through a new law, although there is no revocatory clause, when otherwise the new law cannot obtain its effect; for a law ought not to be said to have been established as useless. Express revocation is made through clauses inserted into the law. As regards privileges revoked by Trent, see Card. Sanfelice, Fundam. Juris can., P. II, p. 138.

Ordinarily the general clause suffices: notwithstanding privileges, unless these are specially firm, such as are: onerous privileges, or, on account of justice, remuneratory ones, for example, of religious, or ones conceded with clauses which require special mention for derogation, or ones inserted in the Body of Law. But if revocation is said to have been made from certain knowledge, from proper motion, from fullness of power, or if the mind of the legislator is certainly clear, then any privilege whatever is revoked; except onerous ones, namely those conceded on account of a price paid by the privileged person, or on account of a burden imposed on him. For these cannot be validly revoked unless a just cause is present and compensation is given. And Doctors commonly affirm the same concerning privileges remuneratory on account of justice (Salmant., tr. 18, c. 2, n. 26).

Note. Concerning the privileges of clerics, Bishops, and regulars in particular, it will be said in part IV, concerning particular precepts. Meanwhile see more things, if you wish, in St. Alphonsus, or among the Salmanticenses, or in Bouix, de Jure Regularium; Bargilliat, Prael. Juris canonici.

190. Definition. - It is a private law conceding something special against or beyond law. It is called a private law, not indeed with respect to the privileged person, upon whom no law is imposed, indeed a grace is conferred; but with respect to the community, upon which the obligation is imposed of not impeding the use of the privilege.

191. • It is divided 1° into real and personal. A real privilege is said to be one which is directly conceded to some thing, office, or condition distinct from the person, for example, to a certain altar, so that a plenary indulgence, applicable to the dead, may be obtained by the celebrant on it; likewise to a Bishop as such, or to his See or Office, or to some community. - A personal privilege is that which is immediately given to a person by reason of himself, as the privilege conceded to a certain confessor of absolving from reserved cases.

2° Into gracious and remunerative, according as it is conceded without any respect to the merits of the privileged person or of others, for example, of parents, or on account of them.

3° Into conventional and pure, according as it is obtained with some agreement intervening, or with none intervening.

4° Into perpetual and temporal.

5° Into a privilege against law and beyond law, according as through it derogation is made from some law or not. Thus exemption from the jurisdiction of the Ordinary is a privilege against law.

192. Principles. - I. A privilege is acquired - either by concession of one having power, - or by legitimate custom, if concerning a community, - or by prescription, if there is question of a private person.

193. • II. It must be interpreted 1° so that it be neither useless nor burdensome to the privileged person; 2° authentically or doctrinally according to the norm of law (n. 141); 3° broadly or strictly, according as it is favorable or odious (n. 144. D). But a privilege is called odious if it derogates from common law, or from statutes which are not contrary to common law, or from customs, or if it yields to the detriment of others; otherwise favorable. But an odious privilege is equated with a favorable one and must be interpreted broadly if either a) it is inserted in the Body of Law; or b) it is real, for on account of its perpetuity it is judged to be inserted in the Body of Law; or c) it was conceded with the clause: from certain knowledge, or of one's own motion; or d) it is a privilege of absolving, dispensing, or communicating to others; or e) it was conceded to some order, convent, community, or for another pious cause; for privileges conceded to communities are all presumed to be remunerative of services rendered, and for that reason all are held as favorable.²

194. • III. No one of himself is held to use his own privilege; sometimes however by accident, namely if by not using it you would bring grave damage upon the common good or upon your neighbor, or if by using it you can easily remove an impediment to observing a precept. Hence Bishops, Clerics, and Regulars are held to use the privileges conceded to their state, if by not using them they would bring detriment upon their state. Likewise, having the faculty of absolving from reserved cases, you are held to absolve a sinner having reserved sins, already confessed and rightly disposed, or to hear him when placed in grave necessity. Similarly, a priest having the faculty of celebrating in any decent place whatsoever is held to celebrate outside a church if he can do so conveniently and decently, and otherwise he cannot satisfy the precept of hearing Mass.³

195. • IV. Privileged persons are held to show to local Ordinaries their privilege or a trustworthy copy of it: 1) although they have not been required, and before they can use them, if there is question of privileges with the clause: the Ordinaries of places having been informed, or of new indulgences to be published; 2) when required, yet without meanwhile being able to be interdicted from the use of the privilege, if there is question of a privilege of exemption of some religious institute, where it would not be sufficiently notorious.

196. • V. A privilege ceases 1° generally in the same way as delegated jurisdiction (n. 151). Yet those things do not cease by renunciation which are conceded not so much to the person as to a condition or state; hence a religious cannot renounce the privilege of exemption. - Revocation also occurs through a new law, although there is no revocatory clause, when otherwise the new law cannot obtain its effect; for the law ought not to be said to have been established uselessly. But for revocation there ordinarily suffices the general clause: notwithstanding privileges, unless they are of justice, inserted in the Body of Law, or otherwise qualified. But if the revocation is said to have been made from certain knowledge, of one's own motion, from the fullness of power, or if the mind of the legislator is certainly established, then any privilege whatsoever is revoked, except onerous ones, namely those conceded because of a price paid by the privileged person, or because of a burden imposed upon him.¹ - 2° By cessation of the final cause in the manner of dispensation (n. 164). - 3° By a condition, under which it was conceded, not having been observed. - 4° When the number of cases for which it was given has been exhausted. - 5° By non-use through a space of time sufficient for prescription,² if the privilege is odious, and the occasion of using it has offered itself; - because in this case there is judged to be a tacit renunciation of it. If it is not odious, it is not lost by prescription; because there is no one who has a right of moving a complaint concerning it. - We said: and the occasion of using it has offered itself; for otherwise the privilege is not lost. Thus he who has not used the privilege of drawing water from another's land into his own land, because the spring dried up, will not be able to be said to have lost the privilege.³ - 6° By a use formally contrary to the privilege, if the privilege is odious, on account namely of presumed renunciation of the privilege; thus he who has the privilege of not paying tithes, and nevertheless knowingly and freely pays them, loses the privilege. But if it is not odious, for the contrary reason he does not lose it: thus he who has the privilege of not fasting during the time of Lent and nevertheless fasts, does not lose his privilege; because fasting is presumed to be done only from devotion, not from the will of renouncing the privilege. - 7° By abuse; because he deserves to lose a privilege who abuses it. Yet for this there is required the sentence of a judge (because it is a penalty), unless the privilege was given under the condition of losing it by the very fact of abuse.

What has been said concerning the cessation of an odious privilege by non-use and by contrary use has force for the external forum alone. St. Alph., de Priv. n. 14.

391. Privilege etymologically is a private or particular law, and therefore it is a particular law enacted for the benefit of a determined person or category of persons. It is taken objectively for the particular law itself; subjectively for the special faculty of acting according to the particular law and of using the benefit or privilege taken objectively.

In the broad sense any particular law is thus called, in which sense the rights of bishops, pastors, minors, wives, etc., are called privileges; in the strict sense it is a favorable private law granting a special favor or benefit, not necessary, against or beside common right. Thus laws which regulate the life of religious are privileges only in the broad sense; those which further bestow on them a special benefit, such as exemption from the bishop or a special faculty for the sacrament of Penance, are privileges in the strict sense.

Since, however, it is a law, hence it must have the essential conditions of law; and therefore a privilege must be:

a) stable and permanent, and thus it is distinguished from dispensation or grace, which is not usually granted in a stable and permanent mode but transitorily;

b) useful to the community, otherwise it would be exorbitant and to be abolished, since the community must recognize the privilege and not impede the privileged person in its use. Thus privileges granted to regulars or clerics favor not only them but the whole Christian religion;

c) and therefore granted by him who has care of the community: for to exempt from common right, or to obligate others not to impede the privileged person from the use of the privilege, cannot belong except to the legislator. Therefore a private person cannot grant privileges, but only give licenses, and not against law.

Therefore privilege differs:

1. from a rescript, which is like the instrument by which a privilege or dispensation or interpretation of right or another grace is obtained from a superior;

2. from grace, which is a genus of benefit, of which privilege is a certain species;

3. from dispensation: a) privilege is a true law which positively constitutes some right; dispensation negatively relaxes law and takes away its obligation; b) privilege can be not against law but only beside law; dispensation is against law; c) privilege of itself is stable and permanent; dispensation of itself is granted for a passing act; d) privilege is given to an individual person; dispensation also to a community.

392. Division of privileges. - Privilege is divided in many ways:

1. By reason of the object or matter about which it is concerned: a) it is against law if it derogates from some law, or beside law if by it no law is derogated from, as is the faculty of dispensing: thus any habitual faculties whatever which are granted in perpetuity or for a predefined time or a certain number of cases (can. 66, § 1). The first can be granted only to subjects, because it is an exemption from law by an act of jurisdiction; the other also to non-subjects, because it is done by way of donation or faculty, which a superior can grant even to outsiders to be exercised in his territory. b) It is favorable, which brings advantage to the privileged person and prejudice to no one, as an honorific privilege or that of saying Mass in a private oratory; or odious, which brings advantage to one and inconvenience to another (not to the common good), as exemption from taxes or from the jurisdiction of the Ordinary.

2. By reason of the subject to whom it is granted, it is personal, which primarily, directly, and immediately is granted to a person by reason of himself, on account of knowledge, dignity, etc., and follows the person himself and is extinguished with him, for example, the faculty of absolving from censures, or of saying the rosary in place of the breviary; and real, which primarily, directly, and immediately is conferred upon a thing, whether corporeal, as a church, monastery, altar, or incorporeal, as a dignity, office, state, and through the thing redounds to the person: thus the faculties which are customarily delegated habitually to an Ordinary, which consequently do not cease by his death or removal. But if a real privilege is attached to a place, it is called local.

3. By reason of the cause or motive on account of which it is granted, it is gracious, which is from the mere grace and liberality of the superior; remunerative, which is given as a reward on account of merit or service of the person himself, or of his parents, blood relatives, or kinsmen; and onerous, if by an intervening contract on account of a burden imposed and service promised.

4. By reason of the mode by which it is granted, a) it is given or at instance, which is granted in view of a petition and is to be interpreted according to it; or motu proprio, which is granted from the mere kindness and inclination of the superior as a most special favor, even if a supplication preceded, and therefore it is of broad interpretation. b) It is granted first and of itself, without respect to a privilege otherwise given; or ad instar, if it is given in the mode by which it was granted to another: and then it is given either equally principally, if it is bestowed as if it had been granted first and of itself, and therefore is not revoked if in the other it has been abolished; or by accession, if it is communicated on account of the connection which the one to whom it is granted has with others previously privileged, so that it is increased, diminished, and lost together with their privilege.

5. By reason of the end, a privilege is common, which immediately regards and intends the common good, for example, the privileges of canon and forum given to clerics or of exemption given to religious orders; and private, which, although given to a community, immediately regards the good of a particular person.

393. Acquisition of privilege. - A privilege can be acquired in a threefold mode: by direct concession, indirectly by communication, and by prescription or custom (can. 63, § 1).

1. By direct concession, which only he who has legislative power can validly give, because he alone can obligate others not to impede the privileged person from the use of the privilege.

2. Indirectly, by communication, privileges are acquired which are granted to a moral person or state with which another moral person has communication of privileges.

Such communication of privileges in equally principal form existed among approved religious Orders, but for the future it has now been excluded by can. 613, § 1, privileges acquired before the Code not being revoked (Commission for Interpretation, December 30, 1937); but now it exists in accessory form between regulars and their familiars or tertiaries, between the first and second order (can. 613, § 2; 614).

Nevertheless communication of privileges, even in equally principal form, regards only those things which had been granted directly, perpetually, and without special relation to a certain place or thing or person to the one first privileged, account also being taken of the capacity of the subject to whom communication is made (can. 64).

3. By prescription and custom, in the same mode and with the same conditions by which a right is legitimately acquired or a law is abrogated (cf. n. 404); but since by prescription a norm of right is not constituted, but only a subjective right is bestowed, it can be called a privilege only analogically.

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

394. Interpretation of privilege is to be made according to the following rules:

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

Therefore interpretation is to be taken from the clauses, from the words taken in their proper juridical sense, and from the context of speech. But in no way can a privilege be extended either from person to person, or from thing to thing, or from place to place, even if the same, indeed a stronger, reason occurs.

2. That interpretation is always to be applied, so that those increased by privilege may seem to have obtained some grace from the indulgence of the one granting (can. 68).

For privilege is essentially a concession of benefit and favor.

3. In doubt privileges are to be interpreted according to the norm of canon 50 (can. 68), namely, those which refer to lawsuits, or injure rights acquired by others, or are opposed to a law in the advantage of private persons, or finally were obtained for acquiring an ecclesiastical benefice, receive strict interpretation; all the rest, broad.

Thus odious privileges are generally to be interpreted strictly, especially those which are against right; on the contrary those which are beside right, favorable, remunerative, granted motu proprio, given to an Order or religious community.

4. A faculty granted carries with itself also the other powers which are necessary for its use (can. 66, § 3).

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 obtaining the effect of the dispensation.

5. A privilege, unless something else is clear, is to be judged perpetual (can. 70).

The contrary can be clear from the tenor, from clauses, as if it is given at our good pleasure, from the nature of the thing, as if it is strictly personal, or granted for a certain number of cases or a certain time.

6. A personal privilege follows the person and is extinguished with him.

395. Use of privilege. - 1. A common privilege, which principally has been granted for the common good, each one generally is bound to use, nor can he ever renounce it; because to act otherwise would be to the detriment of the common good.

2. A private and merely personal privilege, which has been granted to a private person only for his favor, each one can renounce; nor is he bound of itself to use it, unless an obligation arises from another head (can. 69).

Hence a sick priest detained at home who has the privilege of a private oratory is not bound to erect it, nor, once it has already been erected, to use it so that he can celebrate on Sundays. On the contrary, a confessor enjoying the privilege of absolving from reserved cases is bound to use it toward a penitent rightly disposed.

3. A private privilege which has been granted to a community on account of the good of individuals, individuals cannot renounce (but only the community); but of itself they are not bound to use it. Per accidens they can be bound to this, by reason of a special precept imposed on individuals by a superior, or by reason of conformity with others.

396. Cessation of privilege. - Privileges can cease either directly and of themselves, or indirectly and per accidens, namely, by defect of a necessary condition:

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.

You will ask 1° what a privilege is.

I answer. Privilege, as to its name, is a private law, or, as others will have it, though less well founded, quasi privans lege, as it were depriving of law; but as to the thing and taken formally, it is a singular right, granted by the prince to certain persons on account of some utility, of doing or not performing something, against or beyond the law.

The definition is explained. It is called right, by way of genus, in which it agrees with law, since after the manner of law it obliges. It is called singular, because it is given to one or another singular person, or to a lesser community taken as a singular person, although consequently it obliges the whole community subject to the prince not to impede the privileged one in the use of his privilege. By this is also expressed the subjective cause of privilege: concerning which it must be noted that, although strictly privilege ought to be granted only to a subject of the prince, that is, to him who is such either permanently or transiently, as pilgrims, nevertheless taken widely it can be granted even to one not subject, since it is an act of mere liberality and beyond right. It is said, of doing or not performing something against or beyond the law, by which words are expressed the object or material cause of properly so-called privilege, which is an act commanded or forbidden by common right, so that with respect to the privileged person it ceases to be commanded or forbidden. It is said, on account of some utility, in which words you have the final cause; for the general end of privilege is some utility redounding to the good of the commonwealth. Finally, in the words granted by the prince is expressed not only the efficient cause, but also the extrinsic formal cause of privilege, by which, as of law, it is an act of the prince legitimately manifested; for the whole value of the privilege depends upon the will of the prince. From which it follows that he alone and every one who can make a law can also found and grant privileges.

You will ask 2° in what privilege differs from dispensation.

I answer. To differ in this, that dispensation indeed relaxes the common right, but without duration and stability, or for a single act only, e.g., to receive order, or is mostly granted limitatively for some acts. On the contrary, privilege is indulged with some stability and perpetuity, and for many acts not limitatively.

You will ask 3° how manyfold privilege is.

I answer. Privilege is divided many ways: 1° Into affirmative, by force of which it is lawful to do something not permitted by common right, as to celebrate in pontificals; and negative, from which it is lawful to omit what by right one ought to do, as not to pay certain taxes. 2° Into personal, which is granted directly and immediately in view of the individual person, and coheres with him; and real, which is directly and immediately attached to a thing, or indulged to a person with respect to a thing, e.g., an office, dignity, and thence coheres with the thing, and all who hold the office or dignity may enjoy it. Certain add mixed, which is partly personal and partly real, and is granted to persons with the addition of place. Privilege is personal when the words of concession are directed to the person, with expression of his own name, e.g.: « To thee Peter, archbishop of Paris, we grant, etc. » It is real if the words be directed to the person with expression of the thing or dignity, e.g.: « To the bishop of Autun we grant the use of the pallium. » 3° Into gratuitous, which is indulged from mere liberality, without singular merit; and remuneratory, which is bestowed as reward and compensation of signal merits. This latter is personal by its nature; nothing however stands against its being extended and communicated to sons, grandsons, and the whole family, if the paternal and ancestral merits be so many and so great that it be fitting that such honor become hereditary, and so be perpetuated. 4° Into pure, which is granted without reciprocal obligation; and conventional, which is conferred with pact and obligation of doing something; yet this does not seem to be comprehended under the name of privilege in odious matter, because onerous conventions are not rightly drawn to gracious matter. 5° Into common, which per se regards the good of the community, and consequently derives into individuals, as the privilege of forum and canon; sometimes it belongs, as to use only, to the community as such, as the privilege of free election; sometimes to individual members, as many privileges of religious; and into private privilege, which per se regards the convenience of one or another person, yet verges consequently into the common good, as the privilege of restitution in integrum. 6° Into privilege closed in the body of law, which is inserted among other laws, and puts on the nature of law and is favorable; and that which is granted by special rescript, and is held somewhat odious to others, receives therefore a stricter interpretation, and has against it a presumption of law. 7° Into singular, or granted in singular form with special clauses, e.g., « motu proprio, ex certa scientia, ex plenitudine potestatis, » and vulgar, or at the prayers of the privileged one, without the aforesaid clauses. The first is favorable, nor can it be accused of obreption or subreption, with which the second can labor, since there is always subunderstood in it the condition, « if the prayers rest upon truth. » 8° Into written, which is granted through the rescript of the prince; and unwritten, which is granted orally, or, as is said, by oracle of living voice. 9° One kind is given for the forum of conscience, and is not acknowledged in the contentious forum; another for the external forum, and profits even in public judgments. 10° Finally, one is absolute, which is favorable only to the privileged person; and another respective, which favors the privileged one in such wise that at the same time it verges to the burden of others.

You will ask 4° in how many ways privilege is acquired.

I answer. Privilege is commonly said to be acquired four ways: by custom, prescription, concession, and communication. But since custom and prescription are not so much [motes, because he who is protected by custom or prescription obtains that right which another holds adorned with privilege], hence the modes of acquiring privileges are reduced to concession and communication. Concession of privilege is its original collation made by the legislator who made the law from which the exemption is indulged, or by his successor or superior. Communication is the extension of a privilege from one subject to another. It takes place simply, or with peculiar clauses added. If it take place simply, it gives the faculty of exercising all privileges granted to the subject from whom or in view of whom they are communicated, unless they be plainly singular, wont to be more rarely granted, or prohibited from being communicated. But if it take place with clauses added, according to their diversity there is diverse communication. For it takes place one way relatively and ad instar, that is indirectly, accessorily, as many privileges indulted to religious are communicated to nuns, to their familiars, physicians, advocates, etc.; and communicated in that way, they are diminished and lost if the original privileges happen to be diminished or lost. Second way, absolutely or pariformiter and equally principally as if they were granted directly and specially to those to whom they are communicated; and these privileges are neither diminished nor lost, even if the original privileges happen to be diminished or lost, because they no longer depend per se on the former. That these terms must be thus taken is established from several pontifical constitutions, signally from the bull of Gregory XV Ad uberes fructus, where the term ad instar is opposed to the term pariformiter, and from the bull of Clement XIV Supremi apostolatus, where the same term is opposed to the term principaliter.

You will ask 5° what are the effects of privilege.

I answer. 1° It confers on the privileged one the right of using his privilege according to its tenor and right interpretation, and imposes on others the obligation of not impeding the use of the privilege. But the privileged one must observe the place, time, mode, and other conditions expressed in the concession. But if place and time were not expressed, nor the subject matter persuade otherwise, the grace granted extends to every time, and equally to the whole territory of the granter: nay, if the grace remove only an incapacity, or permit an act prohibited by no special right of the place, the use of it is licit even outside the territory of the granter, as to read prohibited books everywhere, to celebrate before dawn, etc. 2° The privileged one is not bound to use his privilege, because favor cannot pass into burden; unless perchance there arise from it per accidens an obligation which he must personally satisfy, as hearing Mass on Sunday during the time of interdict, or an obligation toward another to be fulfilled, e.g., a confessor who obtained the faculty of absolving from reserved cases, after having heard confession, is bound to use it. But if the privilege be public from its end, e.g., privilege of forum, he may not renounce it, because public order does not suffer it. 3° In the concurrence of two privileges, several things are to be discerned. If the privileges be respective and opposed concerning the same object, the special prevails over the general, because species derogates from genus, from rule 34 of Law in 6°. But if each be equally general or special, the stronger prevails, that is, the older or granted by greater power. If the privileges apparently contradict one another only, the more absolute prevails, while the other yields to it as tacitly conditioned: thus a church exempted from paying tithes enjoys its privilege against the church to which the right of exacting tithes from all churches was granted by privilege. If from the very law the privilege have prelation, it prevails over the other.

You will ask 6° how it be lawful to use a privilege by way of interpretation.

I answer. 1° Not at arbitrement, but according to the rules commonly received from doctors, so that the words of concession, as far as the matter suffers, be understood properly and generally as they sound. Odious privileges, that is, adverse to common right or to a right acquired by a third party, are restricted; merely favorable ones, as a benefit of the prince, must be taken most widely; personal ones are limited to the person, real ones extend even to successors. In doubt, a favorable privilege is held real, as also conventional follows from the pact, whose nature it follows. But a prejudicial privilege is held personal, as also remuneratory, although this frequently, on account of the merits of ancestors, is real. 2° Privileges admit comprehensive interpretation; for the person not expressed in the privilege, for whom nevertheless the identity of reason militates entirely, seems contained in it virtually, insofar as that person was comprehended in the mind of the privileging prince: whence the privileges of male religious are common to nuns, provided the matter be accommodated to them. What is said of persons must likewise be understood of cases. Extensive interpretation is not admitted, however, on account of parity or even greater reason, because the force of privilege arises not from reason but from the will of the prince.

You will ask 7° in how many ways privilege is lost.

I answer. It is lost in several ways: 1° By the death of the subject in which it inheres. Thus personal perishes with the person perishing, real with the thing wholly perishing, as if a church be destroyed without hope of rebuilding, unless the privilege inhere in the pavement or place itself, or the community translated elsewhere draws the privilege with it. 2° By the cause ceasing. Further, the cause ceases contrarily or negatively: contrarily, when the use of the privilege, on account of the change of circumstances, becomes unjust, in which case the privilege is lost; negatively, if the use of the privilege do not become unjust, but the sole reason of granting no longer subsist, and then the privilege is not lost: thus the privilege of the right of tithing granted to religious on account of poverty does not expire, even if with progress of time the monastery obtain fat revenues. 3° By lapse of time for which the privilege was obtained, or by not keeping the condition under which it was granted. 4° By free renunciation, if the privilege be not common, as was said. 5° By non-use, or contrary use, only those privileges perish which contain the burden of a third party. If this happen through tacit renunciation, so much time is required as suffices to induce the presumption that someone abdicated himself of the privilege; but if this be done through prescription, the times and other requisites for prescribing legitimately must be observed. 6° By abuse, because he deserves to be deprived of the privilege who abuses it, either extending its limits, or taking from it occasion of sinning more freely, or acting against the end of the privilege. Yet this loss, except in the case where one acts against the end of the privilege, is not induced ipso jure, but, being penal, presupposes the sentence of a judge. 7° By revocation. The prince alone, or his successor or superior, can revoke privileges. For licit revocation, not truly for valid, is required a reasonable cause; and if the privilege be onerous, without violation of commutative justice it cannot be revoked for any other cause than necessity or public utility. Revocation takes place either expressly, while the prince removes the granted privilege by open words; or tacitly, when he posits a contrary act, or brings a law opposed to the privilege. Further, revocation through universal law does not obtain its effect unless the law have been sufficiently promulgated; likewise through a general clause, « notwithstanding any privileges whatsoever, » privileges fortified with special clauses are not revoked, by force of which they cannot be revoked unless special mention be made of them, since the general clause does not contradict special clauses. But if revocation be made specially, then it obtains its effect, when duly intimated to the privileged one. Moreover, as special privilege derogates from general, a posterior contrary law derogates from the prior privilege closed in the body of common law, because the prince is not held ignorant of this; but not from privileges wandering outside common law, unless mention be made also of these, because these the superior probably ignores.

Let these things suffice concerning privileges in common. Most usefully is read the appendix on Privileges placed at the end of the Theologia moralis of St. Alph. de Ligorio, where, the general principles being exposed, many things are treated concerning privileges in particular.]

Francis, a Spanish merchant staying at Liverpool in order to conduct various business affairs, must remain there for several months, afterward to return to Spain. Meanwhile, he makes his confession to a diocesan priest. He admits that he has eaten meat, as well as eggs and lacticinia, on days of abstinence and fasting, for he possesses the Bulla Cruciatae and is merely a peregrinus. In addition, he accuses himself both of sins reserved to the diocesan bishop and of those reserved to the Supreme Pontiff. Since the confessor does not know the force of the Bulla Cruciatae, he trusts the penitent when the latter asserts that he has the privilege of obtaining absolution, and absolves him. It is asked:

1. What is the Bulla Cruciatae, and what are its privileges?

2. Are these personal?

3. Is the Bulla Cruciatae in force outside Spain?

4. What is to be said concerning the case?

1. What is the Bulla Cruciatae, and what privileges does it confer?

The Bulla Cruciatae, or Bull of the Crusade, was a papal Bull which originally granted indulgences in favor of those who took part in the wars against the Moors in Spain. Those who could not fight against the infidel could help in the good work by contributing money, and those who did this were admitted to a share in the privileges granted by the Bull. The Bull continued to be granted after the crusades ceased, and the proceeds derived therefrom were devoted to the building of churches and other pious objects. Leo XIII granted a Bulla Cruciatae to Alphonsus XIII, in the year 1902, to be in force for twelve years. Besides plenary and other indulgences, this Bull grants to the faithful laity who live in the Spanish dominions, or who come thither from elsewhere, the faculty of eating meat on fasting-days, but this faculty can only be used within the Spanish dominions. The faithful are also empowered once during life, and once again at the hour of death, to choose a confessor who receives authority to absolve them from all reserved sins and censures except manifest heresy. The Archbishop of Toledo, as Commissary-General, is granted certain faculties for dispensing from ecclesiastical law and granting compositions to debtors who owe money to creditors whom they can not discover.¹

1 Acta S. S., vol. xxxv, p. 562.

2. Are these privileges personal ?

Yes, in general; but that which grants permission to eat meat on fasting-days can only be used within the Spanish dominions, and so this privilege is local as well as personal.

3. Is the Bulla Cruciatae granted for other countries besides Spain?

Yes, it is granted to the old kingdom of Naples, or the kingdom of the Two Sicilies, as it is sometimes called, to Portugal, and to Spanish America, which formerly were subject to the rule of Spain.

4. The case. Francis, a Spanish merchant staying for some months at Liverpool, goes to confession to one of the priests of the diocese. He says that he has eaten meat, eggs, and lacticinia on days of fasting and abstinence, for he has his Bulla Cruciatae. In doing this he did wrong, for the Bull expressly limits the use of this dispensation to the Spanish dominions.

Francis also accuses himself of sins reserved both to the bishop of the diocese and to the Holy See.

As Francis is a peregrinus, it is probable that he does not incur cases reserved to the Bishop of Liverpool, but, putting that question aside, he can be absolved once by virtue of the Bull from all cases reserved to any Ordinary, or to the Holy See, except from manifest heresy. This faculty is not restricted to any particular place, so that Francis can be absolved by the Liverpool priest unless he has already made use of the faculty.

Caius and Julius, priests, went for a whole day to a distant place for the sake of recreation. Since they foresaw that they would not be able to recite the Breviary after their return, they intended to take it with them; nevertheless, each, occupied with other things, forgot it. Caius, taking the opportunity, began to recite the Rosary, saying that, by reason of the commutation granted to them in the faculty sheet, the Rosary was to be substituted whenever the Breviary could not be recited because of a legitimate impediment. Julius, however, replied that he would not recite the Rosary, for the faculty in the sheet was a privilege which no one was bound to use. Having returned home around midnight, they asked the rector which of them had judged better concerning the obligation of reciting the Rosary. Hence it is asked:

1. What is a privilege, and what are its various species?

2. How is this statement to be understood: “No one is bound to use a privilege”?

3. How is “Rosary” to be understood in the faculty mentioned in the case?

4. What is to be said concerning the case?

1. What is a privilege, and what different sorts are there?

A privilege is defined by canonists and theologians to be a private law conferring on the holder some special favor. It partakes of the nature of a law, inasmuch as it imposes on others the obligation of not violating the privilege.

Privileges are personal when they are granted immediately to a physical or moral person; that is, to an individual, or to a class, or to a corporation. Those which are granted immediately to a thing or a place are called real privileges. They are against the law when they derogate from it, as does the privilege of a private oratory. If there be no law from which it derogates, a privilege is said to be beyond the law, such as the faculty of absolving from reserved cases.

2. How is the saying to be understood, “No one is bound to use a privilege”?

This rule follows from the nature of a privilege, for a privilege is a special favor. But if it imposed on the holder an obligation to use it, it might become a burden. However, the rule must be understood with some limitations; for it may be that if I do not use a privilege which I possess, harm may ensue which I could prevent by using the privilege. In such a case charity requires that I should use the privilege. And thus if a penitent comes to me with a reserved case, for which I have a special faculty, I am bound to give absolution. Individuals who belong to a privileged body are not at liberty to renounce the privileges of their order, so that a cleric can not lawfully give up the privilege of the ecclesiastical court.

3. How is “Rosary” to be understood in the faculty in question? Does it mean five decades or fifteen?

In some forms of the faculty this question can not arise, for it says expressly “fifteen decades of the Rosary.” But the meaning is the same even if the word “Rosary” alone is used, according to a response of the Holy Office, July 2, 1884, in reply to question 8.¹

1 Collectanea S. C. de P. F., n. 1622.

4. The case. Caius and Julius, priests, went off for the whole day on an excursion. They foresaw that they would not be able to say their Breviary on their return, so they intended to take it with them, but they both forgot it. Caius thought that in these circumstances he was bound to say his Rosary, for there was a faculty in the faculty sheet: “Of reciting the Rosary or other prayers, if they cannot carry the Breviary with them, or cannot recite the divine office because of some legitimate impediment.” Julius, on the contrary, said that the faculty was a privilege, which no one is bound to use. On their return home they submitted their difference to their rector. The rector while admitting that in such circumstances it is a very good thing to say one’s Rosary, yet will doubtless agree with Julius that there is no strict obligation to do so. For the Church imposes on priests the obligation of saying the Breviary, not the Rosary. And, as Julius said, the faculty in the faculty sheet is a favor, a privilege, which does not in this case impose any special obligation of using it out of charity or other extrinsic reason.