Scotus Academicus, Tomus sextus: De Legibus Divinis et Humanis

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.