Privilege

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(Latin,privilegium, likepriva lex)

Privilege is a permanent concession made by a legislator outside of thecommon law. It is granted by special favour, and gives the privileged an advantage over the non-privilegedindividuals; it differs from particularlaws which also concern certain classes ofpersons or things; thus theclergy and the religious have theirlaws and their privileges. The favour, being lasting, is thus distinguished from a permission or singledispensation. It is granted to his subjects by a superior having authority over thelaw; 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 areobliged to respect its use. A privilege, finally, deviates from thecommon law, including particularlaws whether it merely adds to it or derogates from it.

Privileges are of many kinds. Contrasted with thelaw, they are assimilated to thelaw, forming part of it (clausa in corpore juris), such are the privileges ofclerics, or they are granted by specialrescript.

They are superadded to thelaw (pr ter jus), when they relate to an object not touched by thelaw, or contrary to thelaw (contra jus), when they form an exception, allowing one to do or to omit what thelaw forbids or commands.

As to the manner of concession, they are granted directly or obtained by communication with those who enjoy them directly.

Moreover, the concession may be either verbal or by an official writing. Verbal concessions are valid in the forum ofconscience, 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 byrescripts or at least attested by a competent official (Urban VIII, "Alias felicis", 20 Dec., 1631; Reg. Conc. 27 and 52).

If we consider the motive for granting them, privileges are divided 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 personal, real, or mixed; personal are granted directly toindividuals; real to what thelaw terms a "thing", for instance, a dignity as such, e.g. the privilege of thepallium for anepiscopal see; mixed, to a group ofpersons, like a chapter or adiocese (local privilege).

With regard to their object, privileges are positive or negative, according as they allow the performance of an act otherwise forbidden, or exempt one from the performance of an act otherwiseobligatory.

Again they are honorary or useful; purely gratuitous or onerous, the latter entailing certainduties orobligations correlative to the privilege; among such are conventional privileges, likeconcordats.

Finally, from the point of view of their duration, they are perpetual or temporary.

Privileges recognized by thelaw require noproof and must be recognized by the court; all other privileges must beproved, not presumed. They areproved 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 ofrescripts 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 thelaw, particularly if it interferes with therights 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 ofSixtus 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.

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