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Updated:  Aug 12, 2013
prev: Ecclesiastical Prisons Ecclesiastical Prisons Ecclesiastical Privileges next: Ecclesiastical Privileges

Privilege

A permanent concession made by a legislator outside of the common law

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* Published by Encyclopedia Press, 1913.


Privilege (Lat., privilegium, like priva lex) is a permanent concession made by a legislator outside of the common law. It is granted by special favor, and gives the privileged an advantage over the non-privileged individuals; it differs from particular laws which also concern certain classes of persons or things thus the clergy and the religious have their laws and their privileges. The favor, being lasting, is thus distinguished from a permission or single dispensation. It is granted to his subjects by a superior having authority over the law; it thus receives an official value approximating it to a law, in the sense that he who enjoys it may lawfully exercise it, and third parties are obliged to respect its use. A privilege, finally, deviates from the common law, including particular laws, whether it merely adds to it or derogates from it.

Privileges are of many kinds. Contrasted with the law, they are: (I) assimilated to the law, forming part of it (clausa in corpore juris), such are the privileges of clerics, or they are granted by special rescript. (2) They are superadded to the law (proeter jus), when they relate to an object not touched by the law, or contrary to the law (contra jus), when they form an exception, allowing one to do or to omit what the law forbids or commands. As to the manner of concession, they are (3) granted directly or obtained by communication with those who enjoy them directly. Moreover, the concession may be (4) either verbal or by an official writing. Verbal concessions are valid in the forum of conscience, or better, in the case of acts that need not be justified in the external forum; to be valid in the external forum, they must have been granted officially by rescripts or at least attested by a competent official (Urban VIII, "Alias felicis", December 20, 1631; Reg. Conc. 27 and 52). If we consider the motive for granting them, privileges are divided: (5) into remunerative, when they are based on the merits or services of the grantees, or purely gratuitous. From the point of view of the subject, privileges are (6) personal, real, or mixed; personal are granted directly to individuals; real to what the law terms a "thing", for instance, a dignity as such, e.g. the privilege of the pallium for an episcopal see; mixed, to a group of persons, like a chapter or a diocese (local privilege). With regard to their object, privileges are (7) positive or negative, according as they allow the performance of an act otherwise forbidden, or exempt one from the performance of an act otherwise obligatory. Again they are (8) honorary or useful; (9) purely gratuitous or onerous, the latter entailing certain duties or obligations correlative to the privilege; among such are conventional privileges, like concordats. Finally, from the point of view of their duration, they are (10) perpetual or temporary.

Privileges recognized by the law require no proof and must be recognized by the court; all other privileges must be proved, not presumed. They are proved by the production of the original concession or by a duly certified copy. To avoid difficulties the superior is often asked to renew or confirm the privileges granted by him or his predecessors. This confirmation may be either in common form, recognizing the privilege again, but giving it no new force, or in specific form, which is a new grant, revalidating the former as far as needs may be. The two forms are distinguished by the context and the official wording employed (cf. Decret., lib. II, tit. xxx, "De confirmatione utili vel inutili"). The teaching of the canonists on the interpretation of rescripts may be summed up as follows: Privileges are to be construed according to the letter, the interpretation being neither extensive nor restrictive but purely declaratory, that is the words are to be taken only in their full and usual signification. A privilege as being a concession of the ruler is understood generously, especially when it runs counter to no law; in as far as it derogates from the law, particularly if it interferes with the rights of a third party, it is interpreted strictly. Privileges are obtained by direct concession, which is the usual way, or by prescriptive custom, an exceptional and indirect manner, or by communication. The last is an extension of the privilege to others than the first grantees. It may occur in two ways: either explicitly, the legislator giving the former class what he gave the latter, or implicitly, when it is already decreed that the privileges granted to certain juridical entities are deemed accorded to certain others, unless the privilege be incommunicable or an exception be made by the superior. The best-known example of the communication of privileges is that existing among the Mendicant Orders, as appears by many pontifical Constitutions from the time of Sixtus IV. Similarly communication of privileges exists between archconfraternities and affiliated confraternities.

Privileges cease by the act of the legislator, the act of the grantees, or spontaneously. (I) The legislator may revoke his concession either formally, or implicitly by a contrary law containing the clause "notwithstanding all privileges to the contrary" or even, "notwithstanding all privileges the tenor of which ought to be reproduced textually". It is clear that a revocation may be only partial. (2) The grantees may terminate the privilege: first, by an express renunciation accepted by the superior; provided however that it is the case of a personal privilege; for privileges of general interest, like those of the clergy, may not be renounced. Second, by non-user; not always, however, as theoretically the use of privileges is optional, but when this non-user gives third parties a prescriptive right; thus by non-user the privilege of election or of option in a chapter may be lost. Third, by abuse, in which case the withdrawal of the privilege is a penalty requiring at least a judicial declaratory sentence. (3) A privilege ceases spontaneously when a circumstance which was a condition for its enjoyment ceases: thus a cleric in minor orders loses the clerical privileges if he again embraces a secular calling; second, by lapse of time: for instance, where an indult is granted for a certain number of years, or when an honorary title is conferred on one for life; third, by the cessation of the subject: thus a personal privilege disappears with the person: the real privilege with the thing, e.g. the privileges of the churches of France ceased with the total suppression of the former state. Does a privilege cease when its raison d├Ętre has completely ceased? Theoretically, it may be so; but, in practice, the privilege remains in possession and the grantee may wait till the superior intervenes.

A. BOIJDINHON


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