Summa Theologiae Moralis, vol. I: De Principiis

391. Privilege by etymology is private or particular law, and therefore is a particular law enacted for the benefit of a determinate 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 so is called any particular law, in which sense the rights of bishops, parish priests, 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 beyond the common right. So the laws of religious life are only in the broad sense privileges, which beyond the common right grant a special benefit, such as exemption from the bishop or special faculty for the sacrament of Penance, are in the strict sense privileges.

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

a) stable and permanent, and so it is distinguished from dispensation or grace, which is not wont to be granted in a stable and permanent manner but transiently ;

b) useful to the community, otherwise it would be exorbitant and absurd, since the community must acknowledge the privilege and not impede the privileged in the use. So privileges granted to religious or clerics favor not only themselves but the whole Christian religion ;

c) and therefore granted by him who has care of the community : to be exempted from the common right or to oblige others not to impede the privileged from the use of the privilege, cannot be done except by the legislator. Therefore a private person cannot grant privileges, but can only give licenses, nor against the law.

Privilege therefore differs :

1. from a rescript which is as it were the instrument by which privilege or dispensation or interpretation of right or other favor is obtained from a superior ;

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

3. from dispensation : a) privilege is a true law which positively establishes something, dispensation negatively relaxes the law and removes its obligation ; b) privilege can be not against but only beyond law, dispensation is against law ; c) privilege of itself is stable and permanent, dispensation of itself is granted for a transient act ; d) privilege is given to a singular 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 beyond law if by it no law is derogated from, as is a faculty of dispensing : thus whatever habitual faculties are granted in perpetuity or for a definite time or a certain number of cases (can. 66 § 1). The former can be granted only to subjects because it is exemption from law by an act of jurisdiction ; the latter also to non-subjects, because it is done by way of donation or faculty, which the superior can grant to be exercised in his territory even to strangers. — b) It is favorable, which brings advantage to the privileged but no prejudice to anyone, such as an honorary privilege or of saying Mass in a private oratory, or burdensome, which brings advantage to one, but disadvantage to another (not for the common good), such 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 is primarily directly and immediately granted to the person for his own sake, because of knowledge, dignity, etc. and follows the person himself and is extinguished with him, e.g. faculties of absolving from censures, or of saying the rosary in place of the breviary ; — and real, which is primarily, directly and immediately conferred on a thing, whether corporeal such as a church, monastery, altar, or incorporeal such as a dignity, office, state, and through the thing redounds to the person : thus faculties which are wont to be delegated habitually to the Ordinary, which therefore do not cease by the death or removal of the same. But if the privilege is real joined to a place, it is called local.

3° By reason of the cause or motive for which it is granted, it is gratuitous, which is from the mere grace and liberality of the superior ; — remuneratory, which is given as a reward for the merit or service of the person himself, or of his parents, relatives, or near relations ; — and onerous, if with an intervening contract for an imposed burden and promised service.

4° By reason of the manner in which it is granted, a) it is given or upon request, which is granted with regard to the petition and is to be interpreted according to it ; or of one's own accord, which from the mere benignity and inclination of the superior is granted as a most special favor, even if the petitioner's [request] has preceded, and therefore it is of broad interpretation. — b) It is first and of itself granted, without respect to a privilege otherwise given, or in the manner [of another] if it is given in the way in which it has been 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 the other has been absolved, or by accession if it is communicated because of the connection which he, to whom it is granted, has with others previously privileged, so that it is increased, diminished, lost together with their privilege.

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

393. Acquisition of privilege. — Privilege can be acquired in a threefold way : 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 oblige others not to impede the privileged from the use of the privilege.

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

Such communication of privileges in the equally principal form existed among approved Religious Orders, but henceforth it is already excluded by can. 613, § 1, without revoking privileges acquired before the Code (com. int. 30 Dec. 1937) ; now however it exists in accessory form between religious and their familiars or tertiaries, between the first and second order¹ (can. 613, § 2, 614).

Communication of privileges however, even in the equally principal form, only regards those things which were granted directly, perpetually, and without special relation to a certain place or thing or person to the first privileged, having also regard to the capacity of the subject to whom communication is made (can. 64).

3. By prescription and custom, in the same way and under the same conditions as a right is legitimately acquired or a law is abrogated (cf. n. 404) ; since however by prescription a norm of law is not constituted, but only a subjective right is given, it can be said that privilege is acquired by it only by analogy.

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

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

1. 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 the discourse. In no way however can a privilege be extended either from person to person, or from thing to thing, or from place to place, even if the same or even a stronger reason occurs.

2. That interpretation is always to be adopted so that those endowed with the privilege may seem to have obtained some grace from the indulgence of the granter (can. 68).

For privilege is essentially the granting of a benefit and favor.

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

Therefore odious privileges generally are to be strictly interpreted, especially those which are against right ; on the contrary those which are beyond right, favorable, remuneratory, granted of one's own accord, given to a Religious Order or community.

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

Wherefore in a faculty of dispensing is also included the power of absolving from ecclesiastical penalties, if any happen to stand in the way, but only for the purpose of obtaining the effect of the dispensation.

5. Privilege, unless something else is clear, is to be considered perpetual (can. 70).

The contrary can be clear from the tenor, from the clauses as if it be given ad beneplacitum nostrum, from the nature of the thing, as if it be strictly personal, or 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. By a common privilege, which is principally granted for the common good, each one in general is bound to use it, nor can he ever renounce it ; because to act otherwise would be to the detriment of the common good.

2. By a private and merely personal privilege, which is granted to a private person for his own favor alone, each one can renounce ; nor is he bound of himself to use it, unless the obligation arises from another head (can. 69).

Whence a priest, sick and confined at home, having the privilege of a private oratory, is not bound to erect it, nor, it having been erected, to use it so that he may be able to celebrate on Sundays. On the contrary a confessor having the privilege of absolving from reserved cases, is bound to use it toward a rightly disposed penitent.

3. By a private privilege, which is granted to a community for the good of individuals, individuals cannot renounce (but only the community), however of themselves they are not bound to use it. Accidentally they can be bound to this, by reason of a special precept enjoined by the superior on individuals, or by reason of conformity with others.

396. Cessation of privilege. — Privileges can cease, either directly and of itself, or indirectly and accidentally, by defect namely of a necessary condition :

A. Directly : 1) by renunciation legitimately made and accepted by the competent superior. A real privilege however or one granted to a community cannot be renounced by a private person ; nor by the community itself if it has been given by way of law, or if the renunciation redounds to the prejudice of the Church or of others (can. 72) ;

2. by revocation express or tacit, i.e. by a special explicit act, or by a contrary law enacted by the superior who granted the privilege. About which cf. can. 71 and 60 ; in practice various rather intricate cases can occur about which it pertains to jurists to judge.

B. Indirectly : 3) by resolution of the right of the granter, if the privileges have been given with the clause : ad beneplacitum nostrum, or another equivalent, such as : donec voluero, durante pontificatu meo, etc. (can. 73) ; not however : donec revocavero ;

4. by the lapse of time or completion of the number of cases for which they were granted ; or the circumstances of things, in the judgment of the superior, being so changed that they have become harmful or their use illicit (can. 77) ;

5. by extinction of the person (can. 74), or absolute suppression of the thing to which they adhere, or destruction of the place to which they are joined, unless the place is restored within fifty years (can. 75) ;

6. by non-use of a burdensome privilege with a liberative prescription of him in whose burden the privilege yields (can. 76) ; other privileges however do not cease by non-use.

397. Remark. — A just cause is required for the liceity of privilege : for without a just cause a privilege against right wounds legal and distributive justice, a privilege beyond right is illicit prodigality. It is not however required for validity, because it depends on the mere will of the legislator that someone be exempted from his law.