Scotus Academicus, Tomus sextus: De Legibus Divinis et Humanis

Having explained the efficacy of human law, and its power of binding, there remains to examine in what manner that virtue is at times relaxed; which indeed happens either by custom, which on the part of the people dissolves the law: or by abrogation, and dispensation, whereby by the authority of the Prince the obligation of the law is revoked: or by privilege, whereby through the liberality of the Legislator certain ones among the subjects are exempted from the obligation of the law: or finally by interpretation, whereby the Magistrates, and the administrators of the Commonwealth, and judges judge that the force of the law does not prevail in certain definite cases. Concerning all these several points must be determined in the following Questions.

Custom and prescription agree together in many respects, and differ in others. They agree, I say, chiefly in two points. First indeed, because in each there intervenes something of fact, and something of right, which is introduced and established by the fact; secondly, because prescription itself requires some custom of fact, and in turn custom requires some prescription of time. But they differ first by reason of the very right compared; for custom introduces a legal right, or a right of law, by which all are bound; but prescription only confers a right of dominion over some thing, or a right of using it, and enjoying it.

Secondly, they differ from one another because custom is introduced by the practice, and usage of the people; for since it has the force of law, and law is referred to the common good, custom ought to be introduced through the manners, and observance of the community, or people: but prescription, since it pertains to the utility of some single private person alone, is introduced only through the use, and act of some private person: thus if someone enjoys a house or some inheritance peaceably for a long time, the right of inheritance is acquired by prescription in that private person himself. Finally thirdly, custom and prescription differ from one another, in that custom, for the efficacy, and value of its introduction, requires the tacit, or expressed consent of the Prince, as we shall soon say: but prescription does not require his consent, against whose utility it is prescribed: for if Peter should prescribe against Paul in some estate, it is not necessary that Paul himself should consent to this prescription tacitly, or expressly, but it suffices that Peter enjoy that estate for the determinate time required for prescription while he is ignorant of it.

Note 2. That although custom is sometimes used indiscriminately for usage, manner, form, and style: nevertheless it differs from them in certain respects: for although custom, considered as it is a matter of fact, is the same thing as usage, and manner, namely a uniform frequentation of free acts: yet if it be considered as it is a matter of right morally left behind, and persisting from that uniform frequentation of human acts, it has the force of binding to acting so. Custom differs from the very usage and manner, which import only the material uniform frequentation of free acts. But custom differs from forum, and style: for the forum is not whatever is confirmed by right, usage, and custom, but only those things about which judgment must be given in a Tribunal. Style moreover is that manner which is observed in writing, or speaking by the jurists in causes, and affairs to be transacted. Custom truly is a certain right instituted by manners, which is received in place of law, where law fails.

Note 3. It can be understood in two ways that custom has the force of human law. First indeed in abrogating some human law, so that by a custom introduced through long-continued manners of the people against a prescribed law, that law ceases to bind, and is abrogated: no otherwise than a prior law is considered revoked, and abrogated by a contrary later one. Secondly, so that the custom itself be a certain species of law, and bind no less than human law binds. We ask therefore whether on both these grounds custom has the force of Law. Three things therefore are at present to be briefly determined: First, what custom is: Second, how manyfold it is: Third, what force it has, or what conditions it requires, that it may be considered to have that force.

First conclusion. — Custom is a certain right of men instituted by manners, which is received in place of law when law fails. So Gratian d. 1. c. 5. First it is called right: then because it agrees with written law in the notion of right as in a genus; for as Gratian says in the same place C. 2. Right is a general name: but law is a species of right, and every right consists of laws, and manners: then because custom ought to be just, at least by reason of its object, or matter, about which it is concerned. By which it is distinguished from abuse, and corruption. There is added, Instituted by the manners of men, by which words it is distinguished from law; for law is borne from a superior, but custom is introduced by subjects with the sole tacit, or expressed consent of the Prince. There follows, that it is received in place of law: for, as we shall say at once, custom has the force of law, and is received in its place, where law fails. Now law can fail in three ways: first when it is not: second when it is useless: third when it is doubtful, or obscure; hence it comes about that also in three ways custom is received; for first where there is no law, there is received the custom introductory of law, or having the force of law; secondly, into the defect of a useless law comes the custom abrogating that law; thirdly when a law is obscure, or doubtful, into its defect comes the custom which, as we said within, has the force of interpreting a doubtful, and obscure law.

Second conclusion. — Custom has the force of instituting a new law, and abrogating an old one. So all Theologians, and Doctors of either law.

The first part is proved, from the Fathers; for Tertullian lib. De Corona militis, cap. 4. speaks thus: Custom even in civil matters is received in place of law, when law fails. And Augustine Epist. 86. ad Casulanum as it is cited cap. In istis dist. 11. writes these words: In those matters, in which nothing certain is determined by divine scripture, the manner of the people of God, and the institutions of the Elders, are to be held as law: and just as prevaricators of divine laws, so also contemners of ecclesiastical ones are to be coerced.

The second part is proved, from cap. Finali de consuetudine, in these words: Although also long-standing custom is not such authority, nevertheless it will not avail so far as it ought to generate prejudice against positive right, unless it be reasonable, and legitimately prescribed. And Digestis de legibus lege de quibus, where we read, most rightly also has that been received, that not by the sole suffrage of the legislator, but also by the tacit consent of all through disuse laws are abrogated. Secondly, because custom has the force of law: therefore since a law which follows takes away the preceding law, so also custom. Thirdly from Isidore, and the Theologians after him, law ought to be according to the manner of the fatherland, suitable to place, and time: therefore by a contrary custom law is abrogated; because through that it comes about that it is no longer according to the manner of the fatherland. Fourthly, experience attests this truth: for many ecclesiastical laws no longer prevail, because they have been abrogated by a contrary custom.

You will say. Custom ought to yield to reason, as is had dist. 8. Therefore since law rests upon reason, custom ought to yield to it, and not be abrogated by a contrary one.

— I distinguish the antecedent: that custom ought to yield to reason, which excludes every contrary reason, I concede: that it ought to yield to reason which does not exclude the contrary reason, I deny: such, however, is the condition of positive laws, that they rest upon reason: which nevertheless have an opposing reason that they do not exclude, and since in custom there is involved a reason opposed to the reason of the law, custom is to be preferred to it.

You will urge. It is said also above in Canon law and in Civil law that it is not within the power of custom to overcome a law.

— I answer, that this is not the force of any prescribed custom whatsoever, but of one that is reasonable and legitimately prescribed.

Third conclusion. — In order that custom may have the power of instituting and abrogating law, several conditions are required.

First indeed, in order to abrogate a law, it must be reasonable: which is not to be so understood as if the act from which the custom begins must necessarily be good, since it is against the law: but because after subjects by evil acts have done something contrary to the law, with the lapse of time the execution of that human law, against which sin is committed, is scarcely possible, and has great difficulties; it burdens and distresses consciences rather than aids them: whence it happens that subjects believe they can do in good conscience what is adverse to the law. — This custom must also be legitimately prescribed: but it is certain that it is not legitimately prescribed unless under these conditions: first, a custom is not prescribed except by acts contrary to the law, or by a negation of acts repugnant to the law. I say repugnant to the law, because it is not prescribed by any negation whatsoever of an act. Second, those acts through which the prescribed custom is introduced ought to be voluntary: because just as a voluntary acceptance is required in subjects in order that a human law may have the force of law, so a voluntary non-acceptance, or rather disobedience to the law, ought to be the cause why a custom abrogates the law. Third, those acts ought to be manifest: both because when acts are obscure, there can scarcely be conjectured to be good faith in the subjects, which nevertheless is necessary for prescription: and also because each thing is dissolved by that same kind by which it was bound: therefore since a law is introduced through manifest acts, the contrary acts, through which it ceases, must also be manifest. Fourth, the time of this prescription with respect to Ecclesiastical laws seems to be forty years, because nothing is prescribed against the Church except by forty years, as appears from the title on prescriptions: but with respect to Civil laws ten years must intervene: because prescription of long time is ten years among those present, as is had in the civil law, although among the absent it is twenty years: but subjects, for whose good the law was instituted, are always present. Finally, those acts through which a custom of this kind abrogative of a law is induced ought to be more frequent or rarer according to this length of time by reason of the matter: for if the matter occurs more rarely, the law is prescribed away from by custom through a smaller number of repeated acts: if more frequently, more will be required: in a word, there should be so many acts that it can be gathered that as often as an occasion of fulfilling the law presented itself, so often was it contradicted. — Likewise: in order that custom may have the power of inducing a law, it is necessary that it have conditions: first it is required that that about which the custom is induced be a good act, and can be the matter of a just law: for custom has the force of law: therefore it must concern that thing concerning which a law could be enacted. Second, it must be universal, and not of a few. Third, that which is brought into custom must be judged by all necessary of observance, and not as if to be done out of devotion of the people and pious affection. Fourth, there is required the express, or at least interpretative, will of the superior, in order that such a custom may oblige: for herein is distinguished the custom whereby a law is abrogated from the custom whereby a law is instituted, which has no force of law unless it juridically proceeds from a superior: whereas without the consent of a superior a custom can abrogate a law, because then the preceding law ceases to be useful. Fifth, it must be legitimately prescribed: but in order that it be such in Ecclesiastical matters as in Civil ones, a prescription of ten years suffices, nor is it required that it be of forty years: for otherwise, where the abrogation of a law is in question, the custom would have to be prescribed by a prescription of forty years, because it would be against an Ecclesiastical law; but nothing is prescribed against the Church within a shorter space of time: whereas where the question concerns a custom which has the power of instituting law, nothing is prescribed against the Church: therefore then it suffices if it be prescribed by a prescription of ten years. From these things

Collect 1. Custom also has the power of interpreting a doubtful or obscure law; for the true understanding of a law cannot better be had than from the common practice of men, especially the wise, approved and made manifest through received custom. Which also appears from the chapter Cum diffusus on custom, and likewise law 87 of the Decretals on laws, where it is said that custom is the best interpreter of laws. Which indeed happens in two ways: first insofar as it is a sign of the true sense of the law, and of the intention of the legislator, which is gathered from the manner and custom of observing the law as from a probable, or morally certain argument, unless the contrary be evident from elsewhere. Hence Doctors and jurists not rarely affirm that a law is to be expounded according to the custom of the place. Second, custom has the power of interpreting a law, because it concurs in introducing or establishing the sense of the law and the manner of observing and fulfilling it, however less conformable it may sometimes be with the first intention of the legislator: the reason of which assertion indeed is, that the custom itself can acquire the force of law, or abrogate a law: therefore also in another way it can interpret. Whence although from the words or the matter of the law it might be doubtful whether the law obliges gravely, and therefore speaking absolutely it would have to be interpreted benignly, it ought nevertheless to be judged to oblige gravely, if it has been so received by custom.

Collect 2. Custom having the force of law is distinguished into a twofold kind: one indeed prescribed; the other truly not prescribed. The former is that by which over a long time it acquires the force of law through the consent of the Legislator Prince, in the manner in which right is acquired in the goods of another by the long duration of possession through prescription, with possession of good faith, by virtue of a general law enacting prescriptions: of which custom mention indeed is made in the last chapter on customs, where it is called custom legitimately prescribed. The latter custom, however, is that which induces right without prescription, or determination of a long time, through the tacit at least consent of the Prince knowing and tolerating what is done, when he could easily impede it and ought to; unless he tacitly consented lest some evil be incurred. For confirming the former custom there is required at least a time of ten years, as appears from laws 1 and 2 of the Code On prescriptions of long time. Which time indeed must be continuous, that is, uninterrupted through contrary acts of a superior resisting, or of the people interrupting it. But how much time suffices for a non-prescribed custom within a decade can scarcely be defined with certainty. For some think three months suffice for it: others require less; but I judge it should be decided by prudent counsel and consent of the wise according to the frequency and notoriety of the acts by which it is induced, and other circumstances, from which it is to be prudently judged that the Prince tolerates such a custom, and tacitly approves it.

Collect 3. Custom having the force of law cannot be induced except by a community, or at least by the greater part of the community acting publicly and voluntarily; so that the acts by which the custom is induced be done publicly, and without any violence. The reason of the first part of this assertion is, that custom, since it has the force of law, and is a kind of unwritten law, cannot be induced except by those who have the power and authority to enact laws: of which kind is a perfect community, or a superior presiding over it: wherefore although private persons can prescribe, and acquire a right in a possessed good through prescription: nevertheless they cannot induce a custom having the force of law. The second part of this assertion also stands; for since the right induced through custom falls upon the whole community, it must be from the whole community morally at least; inasmuch as that customary right has the power of obliging the whole community after the manner of a law. That, moreover, is said to be from the whole community morally which is from the greater part of it, as appears from elections and deliberations, and other acts which are accustomed to be done by a community.

— Note nevertheless that if the Prince enact a law concerning a custom of a few, which seems better to him, that custom will truly have full force, yet not by reason of the custom induced through the fewer members of the community, but by reason of the law enacted and established by the Prince.

A privilege differs from a law, from a dispensation, and from grace. From a law indeed chiefly in three ways: first, because a law regards the common law, while a privilege regards a special law; second, because a law, as long as it is in force, always binds subjects, whereas a privilege exempts from the observance of the law him to whom it has been granted; third, because a law binds and concerns the whole community, whereas a privilege concerns only private persons; for a privilege is a private law exempted from the common law. From a dispensation it likewise differs first, because a dispensation is always from some law; a privilege is not so, for someone can be endowed with private law without others being bound to the contrary; second, because a dispensation is granted for one act, for instance for removing a single impediment of marriage, and thus it is not something permanent; whereas a privilege gives some stable right: hence when a dispensation is granted to someone by way of a stable and permanent law, for instance when someone is exempted from the fast of Lent for his whole lifetime, this concession has rather the force of a privilege than of a dispensation. Finally, a privilege differs from grace as inferior from superior; because every privilege is grace, but not every grace is a privilege: for a dispensation, for example, from some irregularity, or an absolution from excommunication, is indeed a grace, but not a privilege.

Note 2. Only he who can make a law can concede a privilege; for the favor of any man whatsoever cannot be called a privilege, but only that which is conceded to another by public authority. Add that since a privilege is a certain derogation made from the public law by authority, he alone is judged able to concede a privilege who by his own authority can establish a law, and dissolve it either wholly, when he abrogates it, or in part, when he diminishes its force, or by a privilege excepts some persons from its observance. Hence it follows that a privilege ought to be conceded to him who is subject to the law; for by the privilege the privileged one is exempted from the law which he was bound to fulfill, had he not been endowed with such a privilege.

Note 3. That although a privilege redounds to the private good immediately, nevertheless it must also redound to the common good at least mediately; nor indeed can it be legitimately conceded, unless because it profits the republic that the persons or things to whom it is conceded be well off. Thus it is conceded to those who have deserved well of the republic, or of whom it is hoped that they will deserve well: for it matters both that those who deserve well be rewarded, and that others be advanced to deserving well. Thus it is conceded to those who would otherwise be oppressed on occasion of the law, or whose danger of oppression was to be feared, such as orphans and widows: for it matters to the republic that injury be done to no one. Thus a privilege is conceded to those who are ministers of God: for it matters to the republic to render some worship to God in the veneration of His ministers; nor indeed is a privilege said to have the force of law on any other account, since although its immediate end is the good of private persons, its mediate end is nevertheless the good of the community. — And this truth all the Holy Fathers without exception teach, whoever have made mention of privileges: for they signified that they were therefore to be retained and preserved, because they were not harmful to the common good, but rather useful, namely whereby honor is exhibited to merit, or rest procured, or oppression impeded. St. Gregory, book 2. of the Letters, Epistle 39, which is to Dominic, Bishop of Carthage, concerning ecclesiastical privileges: What your Fraternity writes, let it hold without further doubt, because just as we defend our own, so we preserve to each and every Church its own rights, nor do I bestow anything upon anyone through favoring grace beyond what he deserves: nor do I derogate from anyone that which is of his own right through ambition goading me on, but I desire to honor my brethren in all things, and so I subordinate each one's honor to mine own, provided only that what could rightly be withdrawn from another be not opposed to it. And book 7. Epistle 33. It stands most certainly and against the Sacerdotal purpose to wish to confound the privileges once granted to any Monastery whatsoever, and to bring to naught what has been disposed for quiet. — But when they said that some were to be abolished, or by no means granted, they spoke of those which do not redound to the public good, but merely serve the conveniences of private persons. Thus St. Bernard, book 3. On Consideration, chapter 1. I hear murmuring, and complaint from the Churches: they complain that they are cut down and dismembered; and few are the gain of no thing, which either did not feel or do not fear this wound. You ask what? Abbates are withdrawn from Bishops, Bishops from Archbishops, Archbishops from Patriarchs or Primates, goods — does this species seem evil? Truly if they can excuse themselves there will be work. And afterwards: But I would not have you pass over the fruit of emancipation itself: for there is none, except that from it Bishops become more insolent, and Monks also more dissolute. And again: What, you say, do you forbid dispensing? Not, but dissipating. Nor am I so rude as to be ignorant that they are placed as dispensers, but unto edification, not unto destruction. Then it is sought among dispensers, that a faithful one may be found. When necessity urges, dispensation is excusable; where utility invites, dispensation is laudable. Utility, I say, common, not proper; for when nothing of these is present, it is plainly not faithful dispensation, but cruel dissipation.

First Conclusion. — A PRIVILEGE IS RIGHTLY DESCRIBED AS: A LAW EXEMPTING FROM THE COMMON LAW, AND CONCEDING SOME PRIVATE, BUT SPECIAL AND FAVORABLE LAW: OR OTHERWISE: A PRIVILEGE IS A PRIVATE LAW GRANTING SOMETHING SPECIAL: IN WORD, OR IN WRITING, AND CONCEDED BY HIM WHO HAS AUTHORITY TO MAKE LAWS.

This definition is explained. First indeed it is called a Law: partly because it is conceded stably by way of law; hence it does not expire with the death of the conceder, just as a precept loses its force of binding upon the death of the one commanding; partly because by way of law it directs and orders those to whom it is conceded, and forbids that anything against the concession be attempted. — The word private is added, whereby it is distinguished from a law: for this regards generally all subjects, but that looks only to private persons; namely it is conceded to a family, or to a person and his successors, or to a community, for instance a religious order, a province, a kingdom, and to any other part of a community subject to the legislator, but not to the whole community itself: whence it is called a privilege in respect of those to whom it is not common. — There is subjoined granting something special, for it is the force and nature of a privilege that through it something special beyond the common law be conceded to the privileged one. Finally it is called in word, or in writing: for just as it is not of the essence of a law that it be drawn up in writing, so neither is writing necessary to the essence and validity of a privilege; but as a law can be constituted by word, or in writing, so also a privilege. Whence in the Clementine Dudum concerning burials, the supreme Pontiff says: All you privileges, graces, indulgences in word, or in writing, under whatever form, or expression, or conception of words conceded by us, or by our Predecessors the Roman Pontiffs, of whatever orders of the aforesaid four Mendicant orders etc. Nevertheless, for faith to be made in judgment it is necessary that a privilege be validated by writing, when it has not been acquired by custom, just as it can be acquired after the manner of other rights and honors. Whence Leo IV granted to the Friars Minor that they might use in the forum of conscience alone all things conceded by the Apostolic See, whether through Bulls, or Briefs, or the living oracles of voice, as they are found in the books of the Order. There is another privilege of Julius II granted to the Augustinians by the Bull Nihil ordo, in the Bullarium of Rodriguez, whereby of his own motion and with certain knowledge he conceded to them, and consequently to the other Mendicants communicating in their privileges, that whatever had emerged for them, whether through bulls, or through communication, whether made in the form of a Brief or having emerged through supplication, in which it pleased that the signature alone should suffice, should have altogether the same force and efficacy, both in judgment and outside judgment, as if they had been sealed with a leaden seal. — Finally follows conceded by him who has authority to make laws: for whoever obtains supreme authority over subjects, and can establish and prescribe a law for them, can also concede to some of them that which they would not have by the common law. But in order that he concede licitly, a just cause is required; not however that he concede validly: for by his own authority the legislator can exempt whomsoever he wills from the common obligation.

Second Conclusion. — THE PRIVILEGE DESCRIBED ABOVE IS DIVIDED INTO VARIOUS SPECIES.

For first it is distributed into real and personal. Real is that which is conceded directly and immediately to some thing, office, or condition distinct from a person, as pious causes, an estate, a Monastery, a Church etc., or to the clerical state, episcopal office, the office of superiors, the condition of orphans, scholars etc.; for these privileges are conceded to persons not so much on account of themselves, as on account of a quality found in a genus of persons. Personal is that which is given immediately to a person on account of himself, and with the intention that provision be made for him; as when it is conceded to someone that he pay no tithes, that he be immune from tribute, that he be able to absolve from reserved cases etc. Moreover each is distinguished in this, that the real is perpetual and endures together with the thing, office, state, dignity, or condition to which it is annexed: whereas the personal is only for a time, and is extinguished together with the person to whom it is conceded, according to the rule of the Sixth Book, a personal privilege follows the person and is extinguished with the person. — But in order that each of these privileges be distinctly recognized, attention must be paid to the tenor of the formula whereby it is conceded, its preamble likewise, to whom it is directed, and similar things; so that thence may be gathered whether the personal privilege is to be extinguished with the person, or real, and to endure so long as the very thing to which it adheres remains. Hence a privilege given to a certain community endures so long as that same community is judged to remain, although it migrate from one place to another: for the same political body remains, to which rather than to the place the superior is judged to have affixed the privilege. Similarly when a privilege is conceded to a place, for instance a temple, it is not lost through the destruction of the temple, unless this be done by legitimate authority: otherwise if it be destroyed by accident, or by enemies: for then, once the temple is restored, the privilege perseveres.

It is divided secondly into a gracious, remunerative, and conventional privilege. Gracious is that which is given gratuitously without any merits of the privileged one, or of parents, or of others communicated to him, whereby the privilege should correspond as wages, and not merely as motive or occasion of giving. Remunerative is that which is given as reward of the merits of the privileged one, or of others communicated to him. Conventional is that which is given with a pact or condition intervening, on account of which the privileged one is judged to buy, or compensate, the privilege.

It is divided thirdly into local and general: the former may be used everywhere; the latter only in the place for which it was conceded: as the eating of flesh in France on certain Saturdays, and of dairy products in Lent. But when it is local, it is known, either because this is expressed in the privilege; or because it is sufficiently gathered from the particular cause of the concession, as the eating of dairy products in Lent where there is want of oil and fish; or because the conceder has jurisdiction limited to a certain territory, outside which he cannot dispense against the laws of another territory. If however he has the faculty of dispensing in the common law of a kingdom, or of the Church, and the privilege be only against that common law, the dispensation is valid everywhere: and so for instance a dispensation for holding several benefices at once, made by a Legate, is valid even outside the territory of the Legate.

It is divided fourthly into favorable and odious: favorable is that which brings inconvenience to no one, of which sort is the privilege of hearing

Mass during an interdict; of eating butter and milk in Lent; of making a testament without the solemnity of law, etc. Odious is that which although it be silent towards the privileged one is nevertheless at the same time harmful to another, such is the privilege whereby one is rendered capable of holding several benefices.

It is divided fifthly into affirmative and negative: affirmative is that whereby the faculty of doing something is conceded; negative, that which gives the faculty of omitting something.

It is divided sixthly, according to the manner in which it is granted, into a privilege granted at the petition or instance of the privileged party, and into that which is bestowed motu proprio, and granted out of the sole liberality and good pleasure of the grantor; and this can indeed be discerned both from the preamble of the concession, in which the supplication is usually narrated, if one preceded: and especially from the very form of the concession itself, in which it is usually expressed when it is done by one's own motion through such clauses as: Motu proprio, non ad instantiam alicuius, ex mera nostra liberalitate, or their equivalents. When this is not sufficiently expressed, the privilege is judged to have been given upon petition according to the chapter Si motu proprio, de praebendis, in VI. — Among these grants of privilege there are various differences. First, that a privilege granted at the instance of a party is not so voluntary and liberal as one granted from one's own motion: and therefore this latter, as far as the propriety of words allows, is to be interpreted broadly; which a privilege granted upon petition does not have. Second, that sometimes he who petitioned for a privilege can be compelled to use the privilege he petitioned for: but if it was granted to him motu proprio, he cannot be compelled to use it when it seems less useful to him. Third, that a privilege obtained upon petition is sometimes surreptitiously impetrated, and therefore null; but the clause of one's own motion removes the subreption; although on some other ground it may nevertheless be null. — There is also another manner of granting a privilege, namely ad instar of another privilege, whereby it comes about that by that concession every favor and grace is bestowed with the same extensions and limitations which are contained in the other privilege after whose model it is granted. It must be known, however, that where the exemplar privilege is enlarged, the privilege ad instar is not therefore enlarged; nor when one is revoked is the other judged to be revoked; because the privilege ad instar is granted in imitation of another privilege considered in the state in which the exemplar privilege is, after whose model the other is granted: once that concession has been made, the privilege ad instar becomes a distinct and absolute privilege proper to him to whom it was granted.

Conclusion three. — PRIVILEGES CAN BE IN FORCE AND CEASE IN VARIOUS WAYS.

The first part is made evident; for privileges are in force first for a determined time; namely when they are granted only for a certain time, as when faculty is granted to someone to eat flesh during one Lent only, or another. Second they remain in force as long as the person lives to whom it is granted ad vitam, if it be a personal privilege, nor is it revoked by the grantor; or as long as the community to which it is given, or the thing to which it is annexed, perseveres, if it be a real or common privilege; provided it be not revoked, nor renounced to the community by that privilege. Thirdly, finally, privileges remain in force as long as none of the causes of their cessation occurs; the principal of which are the following.

First, a privilege can be judged to cease through the cessation of the cause on account of which it is granted; for the cause ceasing, the effect ceases; since a privilege is granted by a Prince on account of its use, the use of the privilege requires no less an honest cause than the concession itself; which indeed is established by the law of the Pandects II., De fide-iussoribus, in which it is said: that he who has come to a state in which he could not begin cannot remain therein; or as the gloss has it in the same place, that what impedes doing destroys even what has been done: therefore the same cause is required in the use as in the concession; and consequently if, the cause being absent, a privilege could not have been licitly granted, with the same cause likewise absent its use cannot licitly and legitimately continue. Hence from the chapter Tua, de Clericis non residentibus, it is laid down that the privilege indulted to Canons, that being absent on account of studies they may receive the fruits of their prebends, ceases when they no longer devote themselves to studies. — Nevertheless the same author would have this opinion understood thus: first, unless the privilege or dispensation is granted on account of avoiding some moral danger: hence a woman with whom a dispensation was granted in the vow of chastity on account of a moral danger of incontinence does not cease to have this privilege of dispensation when the danger itself ceases, whether on account of aged years, or on account of long and grave infirmity, or other causes. Second, the privilege ceases, the cause ceasing, unless it concern a matter which the Prince can honestly grant even without grave cause; of which kind is the privilege of anticipating the sacrifice of Mass before dawn on account of legitimate causes; for any cause whatsoever, even a light one, can make this concession honest; and consequently although a grave cause be absent, those who are endowed with such a privilege can licitly make use of it.

Second, a privilege is lost by the express and external renunciation of the privileged party; because the benefit of a privilege is not compulsory with respect to the one to whom it is granted, nor ought it to be bestowed upon him against his will; seeing that it is conferred in his favor, not to his burden; and therefore he can renounce it. Hence a privileged person can renounce a personal privilege, and some community can resign a common privilege granted to itself; but no private privileged person can renounce a privilege granted to the community, or to his estate. And thus a Clerk cannot renounce the privilege of a Canon and of the Forum: nor a Religious the privileges of his Religion; nor a Bishop the privileges common to the Church, or to the episcopal order. Moreover, for renunciation an internal act does not suffice, but it must be manifested externally, and accepted by the granter of the privilege, or by a third party who has an interest; otherwise the renunciation can be revoked by the very person himself; nor does it oblige him not to use the privilege.

Third, privileges cease through non-use or desuetude, or through contrary use; namely when they are odious, and redound to the burden and as it were the servitude of others. Thus by express law concerning fairs it is laid down that the privilege of fairs is lost through non-use over ten years. The reason is, because prescription holds equally against burdens and servitudes of this kind as against any others whatsoever. But if privileges be merely favorable, and do not redound to the prejudice of others, they are not lost through prescription; because neither can the privileged person himself prescribe against himself; nor another against him, because it is no concern of theirs. Advertise, however, that for the prescription of a privilege against laymen a space of ten years between those present, and twenty between those absent, is required. Against the Church prescription runs only by a space of forty years, and against the Roman Church by a space of one hundred years. Against Monasteries, however, persons, or other goods of Religious, by common law indeed a prescription of forty years is necessary: but by the Privilege of Eugene IV. sixty years are required. Indeed, by a certain other concession made to the Benedictine monastery of St. Paul outside the walls of Rome (with which monastery, and consequently other Orders, communicate), one hundred years are required, as may be seen in Rodriguez Tom. 3. qq. Reg. qu. 35. art. 2.

Fourth, privileges are lost through the delict of the privileged person himself; which can be twofold: one not pertaining to the use of the Privilege, and such a delict does not take away the privilege except in cases expressly stated in the law; in which way a clerk exercising merchandise loses the clerical privilege of the forum, cap. ultimo De vita, et honestate Clericorum: the other pertaining to the use of the privilege, that is, abuse of the privilege, either by exceeding the faculty granted, or by taking from it occasion for living more licentiously and sinning more freely, especially with scandal and detriment to the common good: Hence he merits to lose the privilege who abuses the power permitted to him, as is said dist. 74. cap. Ubi.

Fifth, if the privilege be merely gratuitous, and consist in mere power of doing or not doing something against the common law, it is always at the Prince's nod, validly revocable even without cause; because the Prince, who took away the common precept by the concession of the privilege, can impose it again: and the concession of such a privilege is not the acquisition of any dominion, but a certain dispensation in the common law, which always hangs upon the will of the Prince. I said licitly revocable, because for such a revocation to be done honestly and decently by the Prince, some cause is required. For it is fitting that a benefit conceded by a Prince should endure, as is had in rule 16. De regulis iuris in sexto. But if the privilege be not purely gratuitous, but onerous, as a remunerative and conventional privilege, it is of itself irrevocable, because by natural law the Prince is bound to keep pacts, even with subjects. Per accidens, however, just as he can deprive subjects of other goods when the necessity of the common good demands it, so also he can deprive them of privileges previously granted. For by high justice he can dispose of those rights equally as of other goods of inferiors, as much as the necessity of the common good requires. He ought, however, otherwise compensate this deprivation, if he can. — Here, moreover, advertise that the privileges granted by the Apostolic See to the Regular Mendicants are remunerative; namely because, as Pius V. says in his Bull: Et si mendicantium ordines in principio, pro suis sanctis studiis, honestisque laboribus, proque salute animarum at Apostolicae sedis cuius continue pacem, et dignitatem ordines ipsi fortiter tutati sunt, tam spiritualia, quam corporalia subsidia, ornamenta quoque susceperint, et accipiant. Similarly other Pontiffs bring forward, as motive for granting privileges, the most ample merits and most abundant fruits which they continually render in the Church of God. As Sixtus IV. says of the Orders of Preachers and Minors in the golden Bull which is 20. in the Bullary of Rodriguez, where he celebrates these same merits and fruits with wondrous praises) Unde although absolutely they can be revoked by Pontiffs, yet for revoking licitly and reasonably a grave and urgent cause is required, which Passaeus hands down as from the common opinion in supplem. V. privilegiorum num. 16. — Note further, that privileges are not judged to be revoked unless sufficient and express derogation is made to them; and this not only if they are not contained in the body of the law, because the Prince is presumed ignorant of them: and therefore not to revoke when he makes no mention of them, according to cap. 1. De constitutionibus, n. 6; but also if they are contained in the common law, which the Prince is presumed to know: for nevertheless derogation is made to the genus through the species, even though the species precede. Indeed, when privileges are generally revoked, those contained in the body of the law are not judged to be revoked, as Suarez rightly teaches among others lib. 8. cap. 38. num. 1. because privileges inserted in the common law participate, as Canons and common laws, in the conditions of the same. But if a privilege was granted in a General Council, derogation must also be made to it specially, that it be judged revoked, as Covarruvias, Menochius, Sanchez, and others everywhere hand down, as Herinx notes.

You ask 1. What is to be thought concerning the communication and confirmation of Privileges, especially those granted to Regulars?

I answer 1. That Religious Mendicants have most full communication of privileges among themselves; nay, that they even share in privileges granted to other orders not mendicant, as appears from most many declarations of the supreme Pontiffs; made especially in favor of our Seraphic Order; which particularly appears from the second Bull of Clement VII. in which motu proprio, and from certain knowledge, he communicates to the three Orders of saint Francis all the indults, graces, indulgences, and all other privileges whatever granted, or to be granted, to any Orders whatsoever, whether mendicant or not mendicant, just as if they had been specially granted to them. Which Bull certainly was confirmed by Paul IV. Pius IV. Pius V. Gregory XII. Sixtus IV. and other supreme Pontiffs.

I answer 2. That privileges granted to Regulars, and above all to our Seraphic Order, were confirmed by most many Pontiffs before and after the Council of Trent, thus Sixtus V., who says through the Apostolic: furthermore Gregory XII. Sixtus V. Clement VIII. and Paul V. and in general Pius V. confirmed all the Privileges of all the Mendicant Orders by the Bull, Etsi mendicantium ordines. To which in this part the other confirmative bulls of privileges of Pontiffs posterior to the Council of Trent do not derogate, in which the clause is added, In his, quae non adversantur Decretis Concilii Tridentini: for, as most authors observe, that clause is not understood of all privileges, howsoever contrary to the Council of Trent, but only of those which are formally contradicted by it, and which the Council itself expressly and significantly recalls. — Nor does it stand in the way that the Council of Trent Sess. 25. cap. 22. De Regularibus decrees, Quod omnia et singula in superioribus Decretis contenta observari sancta Synodus praecipit, notwithstanding any privileges whatever conceived with any formulas of words: for the Council speaks only of the Decrees of that Session, as is sufficiently gathered from the text, and other circumstances: for it imposes the crown upon the Session, saying: Haec omnia et singula in superioribus decretis (it does not say sessions) contenta, etc. Which moreover stands, for if the mind of the Council had been otherwise, doubtless it would have laid down the derogation at the end of the whole Council, or of all the sessions. Which certainly, since the Council did not do, it must be inferred that the derogation so made concerning privileges looks only to those privileges which formally opposed the decrees of the aforesaid session 25.

Note 1. Human law can be changed in three ways: first, by Dispensation, or relaxation of the law with regard to certain persons, or certain acts, or effects of the law in those cases in which otherwise it would bind, or would have such an effect; as when someone is exempted from fasting during the time of Lent, not on account of infirmity, but on account of the concession and relaxation of the supreme Pontiff; for dispensation is defined by the Gloss on the chapter requiritur, I. q. 6, as a relaxation of the common law made with knowledge of the cause by him who has the right of dispensing. Secondly, by abrogation, which can take place in three ways; namely, either by a contrary custom, or unwritten law: or by the simple revocation of the Prince: or by a contrary law expressly derogating from the former one, or enacting its opposite. Thirdly and finally, human Laws are changed by Cessation, or simple discontinuance, as when a law enacted for a time expires once that time has lapsed; just as the Mosaic law ceased, which had been instituted only that it might prepare the way for the Evangelical law.

Note 2. Dispensation is to be distinguished from Privilege in this respect, just as also from Absolution, namely that a Privilege properly speaking is a private law, which can at times exist not only against the law, in which case there would be a simple dispensation, but also beyond the law, for which reason it is not a dispensation but a privilege. Similarly, Absolution is not against the common law, but rather in accordance with it, if the person to be absolved merits it. Dispensation, however, is against the common law, since it is a relaxation of the law. Hence dispensation is not unfitting called a wound, or wounding, of the law. For law obtains force and vigor from a twofold cause: first indeed from the authority of the Legislator, whose prudence imposes a rule upon human acts: secondly, from custom, which is the restricting force of the law: for when any rigor of the law is relaxed, something is taken away both from the authority of the Legislator and from custom, and thus a wound is as it were inflicted upon the law. This however comes about through dispensation: for through it something is taken from the custom confirming the law, just as also from the authority and prudence of the Legislator, who through a dispensation is tacitly taxed with lesser prudence, in that he seems not to have foreseen that case.

Note 3. In this matter the abrogation of a law differs from its dispensation, suspension, derogation, and correction; for to abrogate a law is to take away entirely all its force and obligation; but to dispense is only to restrict and limit that law with regard to some person, or some effects, its obligation persevering with regard to the rest. To suspend a law is to prevent it from obtaining its binding force: but to derogate from it is to dissolve its binding force, which it had already possessed. To derogate from a law is to take it away not wholly but in part. To amend a law is to moderate its binding force, adding something to it, or subtracting something from it. Finally, a law is said to cease either when the time for which it was prescribed comes to an end, or when the cause for which it was enacted ceases: for the cause ceasing, the effect ceases. These things having been noted in advance, it must be resolved by whom, and concerning what matters, a dispensation, abrogation, and cessation of human law can be made.

First Conclusion. — EVERY AND ONLY THAT PRINCE, AS WELL ECCLESIASTICAL AS POLITICAL, WHO HAS THE AUTHORITY TO ENACT LAWS, CAN DISPENSE IN THEM BY PLENARY RIGHT: YET WHOEVER IS A PRELATE OR INFERIOR SUPERIOR CAN DISPENSE IN THEM BY AUTHORITY DELEGATED TO HIM. This is common as regards each part; of which

the first is evident of itself: for he who has the faculty of enacting laws also has the authority to revoke and abrogate them, namely so that they may no longer have any binding force toward the whole community for which they were prescribed. Therefore much more does he have the authority to dissolve the force and obligation of the law toward certain members of that community, the same binding virtue ever persevering toward the rest, with whom no such relaxation has been made: but this is properly to dispense in a law: therefore every Prince, as well Ecclesiastical as Political, who can enact a law, can also dispense in it.

The second part is also evident: for whoever has delegated power from an Ecclesiastical or Political Prince, in whom lies the power of enacting laws, can also dispense in them according to the faculty granted to him: so that if he has committed to him a plenary power of dispensing and relaxing with regard to the obligation of subjects according as it may seem expedient to him from any law whatsoever of the delegating Prince, this delegate will be able, a just cause intervening, to absolve those subjects from the laws.

Hence it follows 1. That the Supreme Pontiff has the faculty of dispensing in all Pontifical laws which either he himself or his predecessors have enacted: for he wields authority equal to that of his predecessors: and consequently his authority is not restricted by the holy laws enacted by his predecessors, because an equal has not power over an equal. He can also dispense in laws prescribed by Councils, even general ones, as experience itself makes clear: since the supreme Pontiff not rarely dispenses, both in the age prescribed by the Council of Trent for receiving sacred Orders, and in the degrees prohibited for contracting marriage. Hence the same Council, Session 25, chapter 22, De Reform., says: The Holy Synod declares that all things which have been enacted in this sacred Council have been decreed in such wise that in these the authority of the Apostolic See always is saved, and is understood to be saved. Reason also lends support: for at times there arises a need for dispensation in laws of this kind; but it would be most burdensome and most difficult to convoke the whole Church in General Council whenever dispensation were needed in those laws; and therefore that faculty of dispensing ought to reside in someone: certainly in none other than the supreme Pontiff, who is the head of the Church: therefore it must be established that he himself has the authority to dispense in all Ecclesiastical laws, both those enacted by his predecessors and those prescribed by all Councils, and in those which pertain to ecclesiastical discipline, as is gathered from the aforementioned sanction of the Council of Trent. — Yet this authority of the Supreme Pontiff in granting dispensations must be tempered according to the necessity and utility of the Church; for, says St. Bernard, book 2, De Consideratione, addressed to Pope Eugene, where necessity urges, it is excusable: where utility invites, the dispensation is praiseworthy: I say utility common, not private: for when neither of these is present, it is plainly not a faithful dispensation, but a cruel dissipation. — Hence those who assert that the Supreme Pontiff has at his own arbitrary will and pleasure the authority of dispensing from what is prescribed by Councils and canons, even though no public or private necessity intervene, not only gravely err, but, says Melchior Cano, bishop of the Canaries, book 5, De locis communibus, chapter 5, they do not uphold the authority of the Apostolic See but undermine it, they do not strengthen it but overturn it. Which argument the cardinal Contarini admirably confirms in the letter which he wrote on this matter to Paul III, Roman Pontiff, wherein, weighing the opinion of certain jurists who, swept away by excessive flattery, so promote and magnify the papal authority that certain of them do not scruple to say that the will of the Pontiff is a kind of rule by which his actions are directed, nor is any rule constituted for the Pontiff in positive law to be enacted, or abrogated, or even dispensed in; what the said most Eminent Cardinal thought of this doctrine we understand from the following:

This position, so false, so repugnant to right reason, so contrary to Christian doctrine, says the same cardinal, so deprives the governance of the whole Christian people, that nothing more pernicious could be found. For by the immortal God, the same man exclaims, does not this position savor of idolatry? For to what creature can this be attributed, that his will be the rule of his actions? Is not this proper to God alone? But those jurists, through ignorance of this pontifical power (what sort it is, and to what strength of soul it pertains, that it may endure) have not feared to bring forth so absurd a position into public. — Moreover, Contarini continues, what more contrary to the law of Christ, which is the law of liberty, could be devised, than that Christians should be subject to, and obliged to obey, a Pontiff to whom it has been granted by Christ that he enact laws at his pleasure, abrogate laws, dispense in laws, and hold in all these things his own will as rule? Does such dominion befit — I do not say Christian men who have been enrolled into the law of liberty, and therefore (as Augustine says writing to Januarius concerning the rites of the Church) are to be bound by as few exterior laws as possible: I do not say even free men — and any governance of free men, such as are the rightful and approved authorities of peoples? But to what lord over slaves, over whom lords command for their own advantage, and whom they use as animated instruments, does this dominion and lordship befit, that he command them according to his will? Away with, I beseech the immortal God, this impious doctrine from Christian men. » — When these and other things had been brought forward for the destruction of that position, he turns his discourse to the Pontiff: Most Blessed Father, you who excel in doctrine, and greatly avail in experience of affairs and natural prudence, consider whether from this doctrine lemere the Lutherans took occasion to compose those books of theirs on the Babylonian Captivity? For by the immortal God, what greater captivity and servitude could have been brought upon the Christian people than this which the doctrine of these jurists, of whom we speak, professes? None indeed. So the cardinal Contarini: whom not only the cardinalitial dignity, but above all the treatise which he composed in defense of the primacy of the Roman Pontiff against heretics, exempts from all sinister affection toward the Pontifical authority. — To these is added the deliberation and judgment of eight most learned Prelates who were convoked by the same Paul III before the Synod of Trent, that they might freely state by what means and remedies the abuses and diseases with which the Church was then afflicted could be cleansed; they answered ingenuously:

Alas, your Holiness knew well, they say, that the origin of these evils was thence, that certain Pontiffs, your predecessors, having itching ears, as the Apostle Paul says, kept for themselves teachers after their own desires, not that they might learn from them what they ought to do, but that by their industry and cunning a reason might be found whereby what pleased might be permitted. Thence it came about (besides the fact that flattery follows every principality, as the shadow the body, and access of truth to the ears of princes has always been most difficult) that teachers straightway came forth who taught that the Pontiff is the lord of all benefices: and therefore since a lord sells lawfully what is his own, it necessarily followed that simony could not fall upon the Pontiff, so that the will of the Pontiff, whatever it may be, is the rule by which his operations and actions are directed: whence without doubt it results that whatever pleases, that also is permitted. From this, Holy Father, as from the Trojan horse, so many abuses and so grave diseases broke into the Church of God, whereby we now see that she labored almost unto desperation of salvation, and that the report of these things flowed even to the infidels (let your Holiness believe those who know), who deride the Christian religion precisely on this account, so that, they say, because of us the name of Christ is blasphemed among the gentiles.

Those famous men, besides Contarini, included John Peter Carafa, who later became Supreme Pontiff under the name of Paul IV. There were present likewise Reginald Pole, the English cardinal and one of the presidents in the Council of Trent by appointment of the Pontiff, and Cardinal Sadoleto, together with other men illustrious alike for piety and for outstanding wisdom.

Hence it follows 2. That an inferior Prelate cannot dispense by force of his own ordinary power in the law of a superior Prelate; for to dispense is to take away in part the force of a law, and with respect to the person upon whom the dispensation is bestowed; but to take away the force of a law belongs only to him who enacted the law, or who enjoys power equal to his, not indeed to him who holds inferior power; and accordingly an inferior Prelate, by force of his ordinary power, cannot dispense in the law of a superior. Hence a dispensation granted by the Supreme Pontiff in vows, or in other matters which are of Divine or natural law, is utterly null and invalid unless a legitimate cause be present which would release the person dispensed from the force and obligation of laws of this kind: and thus that dispensation of the Supreme Pontiff ought rather to be called a declaration of dispensation than a dispensation; for no one besides God has authority to dispense with plenary right in those things which concern Divine law. — Hence also Bishops cannot dispense in the vows of their subjects which are reserved to the Supreme Pontiff, such as especially the five following: perpetual chastity, approved Religion, pilgrimage to the thresholds of the Apostles, to St. James of Compostella, and beyond the seas, or to the Holy Land; which indeed can be proved from the Extravagant Etsi dominici, where Sixtus IV. among other things reserves to the Apostolic See the absolution from these five vows, and excommunicates those who shall have presumed to absolve from them. But it can be answered that those confessors alone are excluded there who used to absolve under pretext of faculties conceded by the Apostolic See, whom he also excommunicates in the same place. Yet although in the law no vow is found expressly to be reserved absolutely, except beyond the seas on account of subsidy (of which cap. Quod super his 8. and cap. Ex multa de voto), nevertheless the style of the Roman Curia reserves also other things, which must be obeyed, unless elsewhere another custom has been legitimately prescribed, says Cardinal de Lugo lib. 2. cap. 10. dub. 18. — Bishops therefore can dispense in all those things which are not reserved to the Supreme Pontiff; for, the reservation of the Supreme Pontiff set aside, they have ordinary authority, and can in their own Diocese, in those things which pertain to jurisdiction, do whatever the Supreme Pontiff can do in the whole Church: for they are the princes of sacred things in their own Church: and consequently they have the power necessary for its right administration. Therefore they can rightly dispense first, in the vow of a Religion not approved, and in the vow of perpetual poverty and obedience, which would be made in such a religion not approved, namely where necessity should occur requiring a dispensation: because such a vow made is not truly a vow of religion; for a religion not approved by the Supreme Pontiff is not a religion. Likewise they can dispense in the vow of chastity not perpetual, for instance of 10. 15. 20. years, but not of 100., because a vow made of keeping chastity for a hundred years is held to be perpetual. Similarly in the vow of receiving sacred Orders: because it is not a vow of chastity, although this vow is annexed to the reception of Orders. Likewise in the vow of not seeking the debt; because these are not vows of entire chastity, but only partial, etc. — There are nevertheless some cases in which inferior Prelates have the faculty of dispensing in a law prescribed by a superior Prelate. The first case is, when the matter is light, so that the transgression of the law is reckoned only a venial sin; for as a venial sin is reserved to no one, but any priest whatsoever can absolve from it, so also from the obligation of the law can an inferior Prelate dispense on account of the lightness of the matter. The second is, when a motive for dispensation occurs frequently; for instance in the celebrating of Feasts, in fasting and the like; for it does not seem fitting to have recourse so often to the Prince Prelate, or Superior, as often as this frequent reason for dispensing occurs; for it would be very troublesome to the Prince this more frequent recourse to him in those matters which pertain to ordinary governance: and therefore the superior is justly presumed to concede to inferior Prelates authority for dispensing in those cases. The third is, when a grave necessity for dispensing occurs, nor is recourse to him easy, or there would be danger in delay, or grave detriment: thus a Bishop can dispense with one who, having made a vow of simple chastity, has contracted marriage and consummated it, so that he may seek and render the debt, on account of the danger of incontinence. Similarly he can dispense with spouses who by common consent have vowed continence, lest afterwards the same danger should beset both, or at least one of them. Fourthly, an inferior Prelate can dispense in those things which are so proper to one community that they in no way suit others; for those things which are proper to one community are better known and more evident to the immediate Governor than to the supreme Prince, or Prelate; and consequently he himself will be able to judge concerning them better than the superior. Finally, an interior Prelate can dispense when it is doubtful whether the case needs a dispensation or not; for then the presumption is in favor of liberty, which possesses; whence it comes about that a case, unless it be certain, is commonly not held to be reserved.

You ask: Whether a superior can dispense with regard to himself?

I answer 1. That there is no doubt but that a Prelate can dispense indirectly with regard to himself in vows and laws; namely by giving to one of his subjects the power by which he may dispense in his own vow; for thus he can give to a subject priest the power by which he may absolve him from sins, even from reserved cases: so likewise that by which he may release him from the obligation of a vow; otherwise the superior would be in a worse condition than the subject.

I answer 2. That it is probable that any Prelate whatsoever can dispense directly with himself in those same vows in which he can dispense with his subjects, which De Lugo indeed proves in the place cited dub. 17. First, because as he can dispense with his subjects in Laws even of superiors, when this is permitted to him, as in the law of fasting, of eating flesh, of hearing the Sacred rites, of reciting the Office: so also in these same he can dispense with himself, when a just cause underlies: therefore as he can dispense in the vows of subjects, so he can also in his own vows; for here no more jurisdiction is required over himself than there. Secondly, he can exempt himself, when a cause underlies, from the obligation which he contracts by natural law on occasion of his own law; why not also from the obligation which his own vow brings? Thirdly, the Pope can confer indulgences upon himself, absolving himself from the debt of punishment even if enjoined, as Henriquez teaches, De Indulgentiis, cap. 32. Therefore he can also absolve himself from the debt of a vow. Fourthly, because if anything stood in the way of a Prelate being able to dispense in his own vow, it would be through defect of jurisdiction over himself: for no one can exercise jurisdiction over himself; whence no one can absolve himself from sins: yet here this defect does not stand in the way. First, because this jurisdiction is no more required in the dispensation of vows than in the dispensation of laws, the conferring of indulgences, and the obligation through his own laws: yet the defect of jurisdiction over oneself does not prevent one from being able to do these things over himself, as is evident from what has been said. Secondly, because that jurisdiction demands a distinction of persons, is either because it is coercive, which is to be exercised upon the unwilling, as is the power of inflicting censure: or because it is contentious, distributing right between parties, for it does not seem equitable that anyone should pronounce right for himself in his own cause against the right of an adversary opposing himself; for thus he would be to himself both judge and defendant: or because it pertains to sacramental absolution, which by divine law demands a distinction of judge and thing judged: yet that jurisdiction which is required for the dispensation of a vow is none of these, as is evident of itself: therefore there is no reason why it should demand a distinction of person.

Second Conclusion. — HUMAN LAWS CAN BE ABROGATED BY THE PRINCES AND LEGISLATORS WHO ESTABLISHED THEM, OR WHO HAVE THE AUTHORITY OF PRESCRIBING THEM: YET THEY OUGHT NOT TO BE ABROGATED UNLESS SOME GREATER UTILITY IS THENCE TO BE HOPED FOR. This Conclusion contains three parts, of which

Proof of the first: Human laws can be regarded either on the part of their principle, or on the part of their end: that is, either on the part of human reason, from which they are called, or with respect to human acts, which they direct: but on either side they are in truth changeable; and accordingly human laws can be abrogated and changed. The first part of the minor is evident: since human reason is finite and limited, and is accustomed to proceed from the imperfect to the perfect, whence it comes about that the Legislator cannot foresee all those things which can more conduce to the utility of the Commonwealth at any time whatever: it sometimes happens that posterity observe certain things to be adverse to the right administration of the Commonwealth which the Ancestors had raised up for the good government of the same: and consequently, on the part of human reason, which is constitutive of laws, it is certain that they are changeable. Also the second part of the same minor is clear: for often some law is expedient at one time which at another, the morals of men being varied, is judged not expedient: thus God governed men with other laws and precepts before and after the incarnation of Christ: thus likewise both Ecclesiastical and Political constitutions and sanctions are changed on given occasions, and according as the diverse necessity of affairs and times requires, for the establishing of the quiet of the faithful and of subjects, and of the right manner of acting.

Proof of the second part: For whoever enacted a law, or has the power of enacting, has also the authority of recalling it; since a law essentially depends upon the will and command of the Legislator and Prince, it follows that upon the change of the same will the law also ought to be changed. — Hence any Prince and Superior whatsoever can abrogate laws enacted not only by himself, or his predecessors, but even by inferiors, Prelates subject to himself; because the Superior has full power above the inferior: and consequently above all laws sanctioned by him. — Yet an inferior Prelate cannot recall or abrogate the laws of Superiors without their special concession: because the will and right of an inferior cannot prevail against the right and will of the Superior. Hence in the Clementine De electione cap. Ne Romani, Clement V. decrees that since the law of a Superior cannot be taken away by an inferior, the laws enacted by the Supreme Pontiffs concerning the election of the Supreme Pontiff cannot, while the see itself is vacant, be modified, corrected, or changed by the assembly of Cardinals of the Roman Church, or anything detracted from or added to them, or any dispensation made in any way whatever.

Also the third part is evident, namely that laws ought not to be abrogated or recalled unless a greater utility of the community follows thence: for, as Ulpian says in the old Digest lib. 1. title t. De Constitutionibus Principum law 2. In things to be established by us the utility must be evident, that one depart from that law which for a long time has been seen to be just. Since laws are established for the good of the community, their vigor ought to persevere so long as a greater utility of that community does not appear. Hence he would seem to sin against the public good who should recall laws conducing to its establishment and confirmation, unless a greater advantage to be followed thence outweighed the harm. Nevertheless the aforementioned abrogation without a just cause is valid, nor are subjects bound to obey the revoked law, even if no utility of the community intervene, because subjects are bound to keep the law only thus far, insofar, and as long as the will and command of the Legislator is morally continued, because from a will and command of this kind the whole law obtains its force and virtue: but the vigor of a law of this kind is not continued when he expressly recalls his will and his command. — Now a law can be abrogated in three ways: First, by the simple revocation of the Prince: Secondly, by the enactment of a new law repugnant to the former; for if the later law cannot stand together with the prior, it destroys it; because the later will of the Prince takes away the former, according to law. sed et posteriores, ff. de legibus. Yet then the abrogation is to be restricted as much as possible: inasmuch as it is commonly odious, and of itself harmful to the Commonwealth, unless necessity requires it. Wherefore laws, as far as possible, are to be reconciled among themselves, and concord is to be preferred to abrogation. Finally, thirdly, a law can be abrogated by contrary custom; since custom has the force of law, as has been said, it follows that as a law is abrogated by a contrary law, so it must be held to be abrogated by a custom opposed to it.

You ask: Whether, and in what manner, Human Laws are to be interpreted?

I answer 1. A threefold interpretation of human law can be distinguished: namely, authentic, customary, and doctrinal. For the interpretation of human laws is made either by the authority of the very one who enacted the law, and who opens up his mind and will concerning the observance of the law in doubtful matters: and this is called authentic; because it proceeds from the same source, namely the will of the Prince, from which the law itself flows; and thus this interpretation obtains the force of law, as is gathered from the last law in the Code de legibus; or it is made by a certain use and custom, by which laws are observed in this or that manner by this or that community, whence it comes about that custom itself is called the best interpreter of the laws, and this interpretation is called customary; or finally, the interpretation of the law is made through the doctrine and instruction of learned men, and this exposition is called doctrinal: which certainly differs from the former ones in that it does not obtain the force of law, since it proceeds not from the power of jurisdiction, but from the judgment of the learned. Hence it does not of itself impose obligation, but only detects and discloses it; especially when all the Doctors with unanimous accord concur and consent in the same meaning of the law. Now, for this doctrinal interpretation of the law to be rightly made, the following rules are most to be observed: First indeed, careful attention must be paid to the property of the words in which the law itself is conceived: for since laws ought to be clear and expressed in words properly signifying, those who interpret them doctrinally must above all attend to the sense of the words. Second, the very cause of the law must also be considered, or the motive on account of which the Legislator sanctioned this law; for that motive is the reason upon which, as upon a fulcrum, the law rests; whence, since the power of the Legislator in prescribing laws must be accommodated to reason, it is rightly concluded that the intention of the Legislator in prescribing the law is gathered from its motive and cause. Thirdly, finally, the mind and intention of the Legislator can be disclosed from the words preceding and following, as also from the end and circumstances, or from the ends of the law itself; if indeed other laws ... [truncated]

Now this doctrinal interpretation of the law is commonly called Epikeia, which is defined by Aristotle, 5. Ethic., cap. 10. as an emendation of the law where it fails through its universality, that is, an equitable and reasonable interpretation, whereby it is declared that the law does not bind in some particular case, although the words of the law be particular and seem to extend to all cases. Thus, for example, the general law is, a deposit must be restored to its owner when he demands it: yet the equitable and reasonable interpretation is that the deposit ought not to be restored in that case in which it would harm the one demanding it, or another innocent party: thus a sword ought not to be restored to a madman, who demands it in order to kill himself or another.

But Epikeia may be used in various cases: First, when it is evident that it is too hard to observe the law; for a human law must be possible according to nature and the custom of the country, that is, easy of observance, as we said elsewhere: therefore if in some case the observance of the law seems too hard, then Epikeia is needed, which is the emendation of the law on account of its defect. Thus the Machabees, lib. 1. cap. 2. when they saw that very many Jews had been slaughtered by their enemies on the Sabbath day, because on that sacred day they had judged that they must not resist their enemies, interpreted the law concerning the observance of the Sabbath, saying: Whosoever shall come against us to fight on the Sabbath day, we will fight against him: and we will not all die, as our brethren died in secret places. — Second, Epikeia may be used when it is probably judged that the law does not comprehend some case; but not when it is more probably thought that the law does comprehend that case: For, says Doctor Subtilis in 3. dist. 25. quaest. 1. n. 8. *in moral matters, when there are disputes about some sin, whether it is first mortal, as if one expert in knowledge should say that it is not lawful to trade thus, and another say that it is thus lawful, it is safer neither to proceed thus nor thus, but to expe> ct until the truth be manifest from elsewhere: for if it were so, that one

Doctor should say that someone sins mortally unless he do thus, then it would be a simple perplexity: therefore it is well to see carefully in moral matters before anything be asserted, namely because when one holds two contrary opinions he is perplexed, and would dangerously determine himself to one, unless upon diligent inspection of the matter he chose the more probable one. »

By which the Doctor signifies that in moral matters a probable judgment indeed sometimes suffices for acting prudently, namely when nothing more probable occurs: but when there is a concurrence of two probable opinions, we are bound to follow that which we judge more probable; otherwise we sin against the rules of prudence, which dictates that we should rather adhere to that opinion which exposes us to no danger at all of erring or sinning, than to that which renders us liable at least to the probable danger of sinning and erring: whence St. Chrysostom, Hom. 4. in Matth.

If you were about to buy a garment, you would go around to one merchant, and another: and where you found better garments, and at a cheaper price, you buy from him; ought not the people then to go around all the Doctors, and inquire, where the sincere truth of Christ is sold, and where the corrupted, so as to choose the truer one rather than a garment?

Thirdly, finally, Epikeia is to be used when we are uncertain whether the Legislator willed to comprehend this case, because the words of the law do not sufficiently signify it; and it is lawful to use Epikeia without recourse to a Superior, although for a time recourse may be permitted. The reason is, because when the question concerns only the signification of the words, we are not bound to interpret them according to the mind of the Legislator when he himself has not declared it, nor to have recourse to him, but we may, using our own right, interpret them according to the common sense, and according to the principles of that doctrine which hands down the true and genuine signification of the words, and that legitimate manner of interpreting them.