3 fulfillment of the requirements for the Degree of Doctor of Canon Law by the ae, EDWARD G. ROELKER, S. T. D., J. C. L., _ of the Archdiocese of Cincinnati. ake WASHINGTON, D. C. 1926 BX 1939 .P6 R6 1926 Roelker, Edward George, 185 Principles of Privilege nAY OF PRI H ry , NOV 23 1996 LOGicAL SES PRINCIPLES OF PRIVILEGE according to THE CODE OF CANON LAW A DISSERTATION Submitted to the Faculty of Canon Law of the Catholic University of America in partial fulfillment of the requirements for the Degree of Doctor of Canon Law the REV. EDWARD G. ROELKER, S. T. D., J. C. L., of the Archdiocese Of Cincinnati. WASHINGTON, D. C. 1926 Nthil Obstat: t THoMAS J. SHAHAN, Censor Deputatus. Washingtonii, D. C. die 6 Maii, 1926. Imprimatur: + MICHAEL J. CURLEY, Archiepiscopus Baltimorensis. Baltimorae, die 6 Maii, 1926. TABLE OF CONTENTS PIOUTCOMR oe tO se oe cla 5. re ate ork SNe tae Ct Raat ela Sains Uo ake kK eo oete ary WSOP TA DIV Val ye isisteis'oe'e » = 6's 06 a's oie Ww I A ieee hebben et eee Rea OS POL OWOOT OU re noee ful eictelotely + Oe ach ele eee als Gale Hal ate eters Shia bse aibee Sia ere ale Chapter I. Fundamental Ideas concerning Privilege in Ecclesiastical TEAL WAM ar sete Sioktetsee Weta a Oud Didtwis’ one: ss, wie eigle Coats SB olel tie 1. Etymology, and early Use of the word ‘‘Privilege’’..... 2. Ius singulare in Roman Law....... PP MESSI ORES Ma ELA Wiam Min tee stave vitieip die sales Givisihe se oe eae ore engi gree w ore'n 9 4, Concept of Privilege in Ecclesiastical LAW ab o elas net bties.¢ 5. Privilege in the Decree of Gratian, and in the Decretals BEART OUOT Ve cee cootshsiera le siais ie ap: bee A PL 8 SA PS 1 POE 6. Various Definitions of Privilege.............. eh yy ths Ae: 7. A proportionate Cause relative to a Privilege............ 8. Writing not essential to a Privilege............. Re Ree 9. Promulgation considered in respect of Privilege.......... 10. Difference between Privilege and other Canonical Institutes Chapter II. Author, Subject, and Object of a Hoes Sends ste ole 1. Author of BRE TIVUCOC rie oe ew siee heels © : ob ¢ in sta ge a's : 2. Subject, and Object of a Privilege......... Ae ah Oe Se Chapter III. Division of Privileges........ SPR aete eM etee me sels bets A Chapter He Acquisition of Privileges......../.%.. Paistes ates we se eho 1. Direct Concession of Privileges....... Siithe eie'e Wile a ate «tale PeeAANIMUNICOLION OL TE TIVIICLOS < tie cies plea oie =» o's'ete cjeles.« Age RPOREPLIBCOM .*. 5's 's'e 0 PRES yr Sir Buhl ap ee Se gis tire tinh aoe orate PE PESCTADCIOINS ale oid e'e vin|sidieln eieto e Share aig iat Oe Pia Reta Caled dele e phe BE POSUINPUION (sos seg ccc Rist e giptatace a's tele & Sige te ain ware emi aevers Chapter V. Interpretation of Privileges..........d.cecceeoes Rey Pomeren tmse Of 2 Privileges. . 26. s.'ss sce c ees Peale wigan SHAG? Chapter VIL Cessation of Privileges............ Rue cterelp ates eet eh iamevocation of Privileges. . ao einai e lee bie Ciapierey oti. Proot.of 8 Privileges... 2 iss e's wins ccecee nsecnans Cert ace Le OUIGLOA 2) Grace ara sie b spec ain.e o's a'e sic'd up dike a eele nee tee eaius'e SOURCES. Acta Apostolicae Sedis, Romae, 1909——. Acta Sanctae Sedis, Romae, 1865—1908. Acta et Decreta Concilii Vaticani, Romae, 1872. Bullarium Romanum, Augustae Taurinorum, 1860. Codex Iuris Canonici, Romae, 1919. Codex Theodosianus, Berolini, 1905. Collectanea S. C. de Propaganda Fide, 2 vol., Romae, 1907. ; Corpus Juris Canonici, 2 vol., Lipsiae, 1922. Corpus Iuris Civilis, 3 vol., Berlin, 1895. Decreta S. C. Rituum, 6 vol., Romae, 1901. Decreta S. C. Tridentini, Taurini, 1913. Fontes luris Canonici, 3 vol., Romae, 1923—1925. Fonti del Diritto Romano, per cura di Pietro Cogliolo. 2 ed., Torino, 1911. iv BIBLIOGRAPHY. Aertnys, Joseph, C. SS. R., Theologia Moralis, 10 ed., quam recogmtam atque auctam ad Codicem Turis Canonici accomodavit C. A. Damen, C. SS. R., Busco- duci, 1919. Alphonsus, St., de Ligorio, Theologia Moralis, Augustae Taurinorum, 1879. Amort, Eusebius, Elementa Iuris Canonici Veteris et - Moderm, Ferrariae, 1763. Antoine, Gabriel, Theologia Moralis Universa, Venetiis, 1783. Arregui, Antonius, S. I., Summarium Theologiae Moralis, | 5 ed., Bilbao, 1920. Augustine, Charles, O. S. B., A Commentary on the New Code of Canon Law, 4 ed., St. Louis, 1921. Ayrinhae, H. A., 8. 8., General Legislation in the New Code of Canon Law, New York, 1923. Bacchinius, Benedictus, O. S. B., Dissertatio de Ecclest- asticae Hierarchiae Originibus, Mutinae, 1703. Ballerini, Antonius, S. I., Opus Theologicum Morale, quod edidit Dominicus Palmieri, S. I., Prati, 1889. Barbosa, Augustinus, Tractatus Varu, Lugduni, 1660. Bargilliat, M., Praelectiones Iuris Canonci, Parisiis, 1918. Bartholinus, Joannes Baptista, De Subreptione Rescrip- torum, Venetiis, 1601. Bellarminus, Robertus Cardinalis, S. I., Opera Omnia, vol. I, Neapoli, 1872. Benedictus XIV, (Prosper Lambertini), De Synodo Duo- cesana, Romae, 1806. Benedictus XIV, Consultationes Canoncae et Morales, Opera Omnia, vol. XII, XIII, Romae, 1884. Blat, Albertus, O. P., Commentarium in Textum Turis Canonict, Romae, 1921. v Bonacina, Martinus, Opera Omnia de Theologia Moral, Lugduni, 1634. nee, Pietro, Storia del Diritto Romano, Milano, 1909. Bouix, D., De Principiis Iuris Canonici, Parisiis, 1882. Bouix, D., De Iure Regularium, Parisiis, 1882. Bouguillon, Thomas, Theologia Moralis Fundamentals, Brugis, 1890. Brandys, Maximilian, O. F. M., Kirchliches Rechtsbuch, Paderborn, 1920. Brys, J., De Dispensatione wm Ture Canonico, Brugis, 1995, Bucceroni, Ianuarius, S. I, Casus Conscientiae, 6 ed., Romae, 1913. Calvinus, (Johannes Kahl) Magnum Lexicon Iuridicum, Coloniae Allobrogum, 1759. Cardenas, Ioannes, 8. I., Crisis Theologica, Venetiis, 1700. Cartagena, Bartholomaeus, Expositio Titulorum Turis Canonict, Lugduni, 1624. | Chelodi, Ioannes, Jus de Persons, Tridenti, 1922. Cicognani, Hamletus, Commentarium ad Librum I Codt- cis, Romae, 1925. Cocchi, Guidus, C. M., Commentarvum in Codicem Iuris Canomci, Taurinorum Augustae, 1921. Craisson, D., Manuale totius Iuris Canonict, 4 ed., Picta- vii, 1875. D’Annibale, Iosephus Cardinalis, Summula Theologiae Moralis, Romae, 1908. DeAngelis, Philippus, Praelectiones Iuris Canonict, Romae, 1877. DeCamillis, P., Institutiones Iurts Canonict, Parisiis, 1868. DeMeester, A., Compendium Iuris Canonici et Turis Canomco-Civilis, Brugis, 1921. Demeuron, J. Louis, L’Hglise, Paris, 1914. 3 Devoti, Ioannes, Institutionum Canonicarum libri IV, Romae, 1825. vi Fagnanus, Prosper, Commentarium in Libros Decreta- lium, Venetiis, 1729. Fanfani, Ludovicus, O. 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Maroto, Philippus, Institutiones Iuris Canonici, 3 ed., Romae, 1921. ‘Martin, Michael, S. J., The Roman Curia, London, 1913. Makee, Ch., Institutiones Iuris Ecclesiastict, Parisiis, 1897. Massimi, Maximus, Introductio in Gai et Justinian In- stitutiones, Romae, 1910. Massimi, Maximus, Interpretatio Gai et Justinian In- stitutionum, Cryptaeferratae, 1917. vil Menghini, Ioannes Baptista, Elementa Iuris Liturgict, Romae, 1906. Mothon, Joseph, O. P., Institutions Canoniques, Paris, 1922. Motry, Hubert L., Diocesan Faculties, Washington, 1922. Nannetti, Emedio, Brevi Nozioni di Diritto Publico Ec- clesiastico, Bologna, 1840. Noldin, H., S. 1, De Principtis Theologiae Moralis, 13 ed., Oeniponte, 1921. Noval, Tosephus, O. P., Commentarium Codicis Iuris Ca nonici lib. IV, Pars I, De Iudiciis, Augustae Tauri- norum, 1920. Palao, merdinanane S. L, Opus Morale, vol. I, Lugduni, 1682. Papi, Hector, 8. J., Religious in Church Law, New York, 1924. Pesch, Christianus, S. L., Praelectiones Dogmaticae, Friburgi Briscoviae, 1924. | Pirhing, Ernicus, S. L, Jus Canonicum, Dillingae, 1674. Prummer, Dominicus, O. P., Manuale Iuris Canonici, 2 ed., Friburgi Briscoviae, 1920. Prummer, Dominicus, O. P., Manuale Theologiae Moralis, Friburgi Briscoviae, 1923. Putzer, Ioseph, C. SS. R., Commentarium in Facultates Apostolicas, Neo Eboraci, 1893. Raus, I. B., C. SS. R., Institutiones Canonicae, Lugduni- Parisiis, 1923. Reiffenstuel, Anacletus, Jus Canonicum Universum, Ant- werpiae, 1743. Sanchez, Thomas, De Sancto Matrimonu Sacramento, Antwerpiae, 1626. Sanguineti, Sebastianus, Institutiones Iwris Ecclesiastict Privati, Romae, 1884. Santi, Franciscus, Praelectiones Iuris Canonici, Ratis- bonae, 1886. Schaefer, Timotheus, O. M. Cap., Das Ordensrecht, Munster, 1923. Schmalzgrueber, Franciscus, 8. I., Zus Ecclesiasticum, Romae, 1845. Sebastianelli, Gulielmus, Praelectiones Iuris Canonici, De Persoms, Romae, 1905. Sebastianelli, Gulielmus, Praelectiones Iuris Canonici, De Iudicus Ecclesiasticis, Romae, 1906. Sherer, Rudolf von, Handbuch des Kirchenrechts, Graz, 1886. Slater, Thomas, S. J., A Manual of Moral Theology, New York, 1908. Smith, William, A Dictionary of Greek and Roman Anti- quittes, London, 1875. Smith, 8. B., Elements of Ecclesiastical Law, New York, 1877. : Soglia, Ioannes Cardinalis, Institutiones Iuris Publica et Privati Ecclesiastici, 10 ed., Boscoduci, sine anno. Sohm, Rudolph, Institutes of Roman Law, Oxford, 1892. Solieri, Franciscus, Institutiones Iuris Ecclesiastict, Romae, 1921. Suarez, Franciscus, S. LL, Opera Omnia, vol. V, VI., Parisiis, 1856. Tamburini, Thomas, S. I., Opera Omnia, vol. IT, Venetiis, 1702. Trudel, P. SS., A Dictionary of Canon Law, St. Louis, 1920. Tuschus, Dominicus Cardinalis, Conclusiones Practicae Turis, Lugduni, 1634. Vecchiotti, Septimius, Institutiones Canonicae, Taurini, 1867. Vermeersch, A., S. I, Creusen, I., S. I, Epitome Iuris Canonici, Mechliniae-Romae, 1921. Wernz, Franciscus, 8S. I., Zws Decretalium, tom. I, Prat, 1913. Wernz, Franciscus, S. I., Ius Canonicum, tom. II, De Personts, opera Petri Vidal, 8S. I., Romae, 1923. Winslow, Francis J., Vicars and Prefects Apostolic, New York, 1924. ix Woywod, Stanislaus, O. F. M., A Practical Commentary on the Code of Canon Law, New York, 1925. Zallinger, Iacobus, Institutiones Iuris Ecclesvastici, Romae, 18382. Zallinger, Iacobus, Institutionum Iuris Naturalis et Ec- clesiastict Publica libri V, Romae, 1823. Zoesius, Henricus Iacobus, Commentariwm in Ius Cano- nicum Universum, Venetiis, 1757. FOREWORD. The Code of Canon Law groups the principles regulat- ing privileges in the canons comprising the fifth title of the first book. All privileges are to be governed according to these principles, no matter whether the privilege be granted by the law itself, or be conceded outside of the field of law. The purpose of this dissertation will be to examine the seventeen canons under the title De Privilegus. In accordance with the general theme of the entire first book of the Code, consideration will be restricted to principles which govern privileges. Hence, no single privilege will be subjected either to historical scrutiny, ior to a review of its canonical development. Beyond their obvious utility in exemplifying principles, the privileges of the Code will not be discussed. In general, the order of the Code will be followed. One exception to this order will be made in discussing the canon on ‘‘faculties.’’ Since these faculties are en- tirely praeter ws, it was deemed advisable to place the chapter on ‘‘faculties’’ after the chapters which consider all classes of privileges. Xi CHAPTER I FUNDAMENTAL IDEAS CONCERNING PRIVI- LEGES IN ECCLESIASTICAL LAW. In a treatise on privileges it is necessary to mention and explain all the various concepts which possess either a direct, or an indirect relation to the subject of privi- leges. The object of this first chapter will be to set down the fundamental ideas of ‘‘privilege’’, some of which will recur again and again thru the body of this dissertation. 1. Etymology and early use of the word ‘‘ privilege’. The English word ‘‘privilege’’ is a translation of the Latin noun privilegium. The letter is derived from the adjective privus, and the noun lex. Privus means ‘‘single,’’ or ‘‘individual’’: thus privus homo means an individual man.? When considering the use of the word ‘‘privilege,’’ a distinction must be made between ante-Augustan writ- ers, and post-Augustan writers. Near the beginning of the Christian era the usual concept of ‘‘privilege’’ changed completely. It still held the idea of something individual, but the object of a privilege was altered en- tirely. | In the time of Cicero, the word ‘‘privilege’’ had 1 Harper’s Latin Dictionary, (New York, 1888), v. privilegium; Antoine, Theologia Moralis Universa, (Venetiis, 1783), tom. II, p. 85, ad ecaleem 1 records a double etymology of the word privilegium, (1) privans lege-eximens a lege, (2) lex privata-spectale aliquid concedens; ef. Cartegena, Ezxpositio Tttulorum Luris Canonici, (Lugduni, 1624), lib. V, tit. XX XIII, p. 459. 2 Privos privasque antiqui dicebant pro singulis: ob quam causam et privata dicuntur quae uniuscuiusque sint, hinc et privilegium et privatus, Cogliolo, Manuale delle Fonts del Dirttto Romano, (Torino, 1911), 2 ed., De verborum significatione, n. VIII. [1] 2a Principles of Privilege According to the Code of Canon Law predominantly an odious meaning. It meant an ordi- nance made against a single person. Such an ordinance was not according to the customs of the Romans. Cicero writes: in privatos homines leges ferri noluerunt: id est enm privilegium. With the Romans a law was an ordi- mance of general interest. Such a departure, then, as an individual ordinance was abhorrent to Cicero. He adds pointedly: quo quid est iniustius? However such a proced- ure was not unknown. Cicero himself refers to a privi- lege in his fourth Paradox,* and his own fortunes were visited with a similar law. In defense iof his own prop- erty, Cicero eloquently remarks: Vetant leges sacratae, vetant XIT tabulae leges® privatis homunibus inrogari: rd est enim privilegium. Nemo unquam tulit; nihil est eru- delius, nihil permiciosius, nthil quod minus haec civita ferre possit.® 3 During the time of Augustus, the word ‘‘privilege’’ was used in the sense of a favor, or a prerogative. It was no longer used in an odious sense. Seneca writes of privileges which were granted to parents.*?. He speaks of favors and calls them beneficia. This word expressed good will: wn beneficiis wcundissima sit tribuentis volum- tas.® | Roman Law took up this new meaning of ‘‘privi- i) De Legibus, lib. IIT, ec. 19; lib. ITT, c. 4, M. Tulii Ciceronis, recognovit C.F.W. Mueller, Scripta quae manserunt omnia, P. IV, v. II, (Lipsiae, 1905). 4 Familiarissimus twus de te privilegium tulit. Paradoxa IV, o.c., p. IV, v. ITI, (Lipsiae, 1898). 5 Privicloes leges ne irroganto; Tab. IX, n. 8, Cogliolo, o.e. Pro domo sua, n. 17; M. Tulii Orationes, recognovit Gulielmus Peter- son, (Oxonii, sine anno). ; Quaedam privilegia parentibus datae sunt; De Beneficiis, lib. Tibfe2a), (Lipsiae, 1900) L. Annaei Senecae opera quae supersunt, v. I, fase. II, edidit Carolus Hosius. 8 De Beneficiis, o.c., lib. II, ¢. I. o ~] Principles of Privilege According to the 3 Code of Canon Law lege,’’ ° and altho concessions and favors were not always spoken of as privileges, yet one who enjoyed such a right was known as privilegiarius.” 2. lus singulare in Roman Law. In Roman Law there existed an institution known as wus singulare. This was a law which had for its pur- pose some special utility beyond the common utility of all law." Thus one category of creditors was preferred to another,’* donations between husband and wife were invalid, ete. The jurist Paulus wrote: lus singulare est quod contra tenorem rationis propter aliquam utili- tatem auctoritate constituentium mtroductum est.* But it would be erroneous to say that utility was the sole standard of ws singulare, and it is better to say with Ferrini® that in the case of tus singulare the aspect of utility was more in evidence than usual. A privilege bears some similarity to the Roman ws singulare.° Both were given in view of individual per- sons, or groups, but while a privilege frequently re- mained a simple concession, ius singulare often repre- sented an advance in legislation and thus became incor- porated in succeeding general codifications of law.’’ The embodiment of many wra singularia gave a development 9 Thus in the Theodosian Code: Etiam tstud adjungimus, ut domos etiam clementiae nostrae, quas vetusta et innumera ab huius oneris curatione privilegia vindicabant, par conditio et sollicitudo constringat, tta tamen, ut in ceteris quae vel inlustribus vel patrimonio nostro pracce- dentibus edictis beneficia fuerant adirtbuta, intemerata permaneant: XV, 3, 4. (Berolini, 1905), cf. also XIV, 2, 1. 10 Ulpian, D. 14, 5, 3; ef. Calvinus, Magnum Lexicon Iuridicum, (Coloniae Allobrogum, 1759), verb. privilegiarius. 11 Ferrini, Manuale di Pandette, (Milano, 1917), n. 9. 12 DPD, 42, 3, 1. 13 D, 24, 1, 1. VE ADS ene Ge 15 Ferrini, o.c., 1.c. 16 D’Annibale, Summula Theologiae Moralts, (Romae, 1908), v. I, n. 227, ad calcem 1, 17 Ferrini, o.c., n, 10, 4 Principles of Privilege According to the Code of Canon Law to law which really represented mighty strides in juris- prudence. 3. Law. Since so many canonists have used the word ‘‘law’’ in their definition of a privilege, a few thoughts must be set down relative to what a law really is. Saint Thomas defined a law as ordinatio ratioms ad bonum commune ab eo qui communitatis curam habet promulgata. Sua- ez’? gave a somewhat similar definition: commune prae- ceptum iustum ac stabile sufficienter promulgata. The elements of a law are (a) general obligation, (b) proper matter, (c) competent authority, and (d) promulgation.” The first element necessarily excludes every ordinance which does not refer to all the subjects in a community, or society. The second characteristic demands a just regulation, and apt material. The third element restricts the issuance of a law to those who ac- tually enjoy legislative power, The power may be in temporal matters or in spirtiual. The last note of a law requires that the subject be made cognizant of the law. This does not mean that everyone must individually be acquainted with the details of the law. In many cases this would be impossible; it suffices to have the law made > public. An ecclesiastical law must fulfill the same require- ments as any other law. It could then be defined thus: ordiatio rationis ad bonum commune ab eo qui commu- nitatis ecclesiasticae curam habet promulgata.* Teclesi- astical law, however, differs in one important respect — from civil law: its history does not begin with custom. The law of the Church existed in earliest times as can 18 1.2, qu. 90. a. 4. 19 Suarez, Opera Omnia, (Parisiis, 1856), v. V, lib. I, ¢, 12, n 20 Herinex, Summa Theologica Scholastica et Moralis, antec 1680), tr. Il, disp. I, q. I, n. 1-5. 21 Wernz, Ius Decretalium, (Prati, 1913), tom. I, n. 89. Principles of Privilege According to the 5 Code of Canon Law be seen from the ordinances laid down by the Apostles.” Subsequent to these laws customs arose. Ancient civil law does not enjoy this priority. Roman Law found much of its source in customs, as did also Greek and bar- barian law.” 4. The Concept of Privilege in Ecclesiastical Law. As has been observed, the etymology of the word ‘*privilege’’ demands that a privilege be a provision made in regard to a single person. A moral person, or body with proper approbation can also be considered juridi- cally as a single person. Beyond this the idea of indi- viduality cannot be extended.** A provision in regard to either of these two divisions can be understood as a privilege. Now let the favorable idea of a privilege be consid- ered. Ecclesiastical law was founded at a time when the original, unfavorable meaning of the word ‘‘privi- lege’’ had been discarded, and the new, benevolent idea was in vogue.” This meaning has ever since remained to the total exclusion of the ante-Augustan signification.”® Hence a privilege would be a favorable provision in re- spect of a physical, or moral person. Then, were a comparison instituted between a privi- lege and the elements of a law, it will be seen that the purpose of a privilege is directly opposed to the purpose 22 Wernz, 0.c., l.c. 23 Massini, Interpretatio Gai et Iustiniani Instttutionum, (Cryptaefer- ratae, 1907), p. 12. 24 Non-collegiate moral persons can also be the subject of privilege. 25 Cicognani, Commentaritum ad Librum I Codicis, (Romae, 1925), p. 273. 26 Privilege in civil law was also called ius singulare, beneficium, rescrip- tum, diploma Principale, constitutio personalis, favor, auxilium, gratia; cf. Calvinus, o.c., verb. privilegium; in ecclesiastical law, privilege was also called rescriptum, diploma, indultum, principale, favor, gratia, immunitas; cf. Reiffenstuel, Ius Canonicwm Universum, (Antwerpiae, 1743), lib. V, tit. XX XIII, n. 6: Glaire, Dictionnatre Universel des Sctences Ecclesiastiques, (Paris, 1868), adds loi favor- able, prerogative, avantage, droit particulier, verb. privilege. 6 Principles of Privilege Accordimg to the Code of Canon Law of a law. In no direct way can a privilege as such be said to be ad bonum commune. Yet this is essential in a law. Lacking this element a privilege of itself cannot be a law. Add to this the idea of free acceptance, and use of a privilege on the part of the grantee. Free accept- ance, however, is not absolutely essential to the concept of a strict privilege because a privilege can actually be granted without the consent of the grantee.*? The two concepts of law and privilege thus diverge more and more. In fact only one important point seems to be common to both law and privilege, and this of necessity. This point is the source whence come both © privilege and law. The legislator is the author of law, explicit in legislation, tacit in custom, as he is also of privilege. After this common element is disposed of, perhaps nothing more remains under which both concepts might be grouped. : Still the idea of stability, or duration might be urged as a common element. Altho this could be admitted, the admission would not identify privilege and law in a generic way. Yet it is this stability which gives some appearance of a law to a privilege.*® The privileges enumerated in the Code are not all strict privileges. None of these privileges can be re- jected, but must be accepted together with the dignity, or state to honor which these privileges are conceded. Thus a Cardinal, or Bishop cannot reject his privileges once his dignity has been conferred upon him. In fact Prelates implicitly accept their privileges when they accept their dignity. Similarly, clerics cannot reject their clerical privileges, nor can Regulars, considered as indi- viduals, or as a community reject their privilege of ex- emption. This necessity of accepting the privileges con- 27 Maroto, Institutiones Iuris Canonici, (Romae, 1921) 8 ed., v. I, n. 291. 28 Cocchi, Commentarium in Codicem Iuris Canonicit, (Taurinorum Au- gustae, 1921), v. I, 113-4, Principles of Privilege According to the 7 Code of Canon Law tained in the Code would not itself destroy the idea of a ‘strict privilege, because these privileges are granted in view of the exalted position, or higher state in life obtained or chosen by the grantee. These privileges, therefore, are not conceded solely because of the grantee. Liberty in using, or not using the privileges granted ‘by the Code will indicate whether or not such privileges are strict privileges. While a Cardinal, or Bishop can- not reject his privileges, yet he can neglect their use. Neither Prelate is obliged to bless rosaries whenever an occasion presents itself. Neither Prelate is obliged to celebrate mass on a portable altar. The use of these privileges depends upon the wishes of the grantee. Such privileges can be compared favorably with concessions found outside of the law. One practical difference can be noted. Legislators and judges are presumed to be acquainted with the grants made in law, but are pre- sumed to be unacquainted with the grants outside of the field of law. Therefore the latter grants would have to be proved in order to be sustained, while presumption favors the grantee who receives his privilege from the law itself. On the other hand, the privileges of clerics must be used whenever an occasion warrants. A cleric cannot forego privilegium canonis and submit to injury.*° In the same way ecclesiastical court cannot be neglected and civil court used in trials.** Similarly, an exempt religious cannot place himself under the jurisdiction of the Ordi- ‘nary of the diocese where he may be residing. This same 29 Cf. D’Annibale, o.c., v. I, n. 277 ad caleem (1); This author limits strict privileges to grants made outside of law. His definition of privilege is: beneficium principis extra corpus wris alicut concessum. After the Code, Maroto, v. I, n. 291, and Cocchi, v. I, n. 113-114 use the same distinction so that the Code would contain absolutely no privileges in the strict sense of the word. 30 C, 15, X, de sententia excommunicationis, V, 39. 31 Cf. can. 120, 1,2, for necessary permission to act in civil court: Wernz- Vidal, De Personis, (Romae, 1923), n. 77. 8 Principles of Privilege According to the Code of Canon Law prohibition attaches to the entire exempt religious insti- tute. Hence, since clerical privileges, and the privilege of exemption can neither be rejected nor neglected, the beneficiaries of these privileges have practically no con- trol over their privileges. Consequently such privileges are called privilegia late sumpta. However it must be borne in mind that privilegiwm late sumptum is not there- by an improper privilege, or that the word ‘‘privilege’”’ is employed merely in an accommodated sense. A real concession is made, and the word ‘‘privilege’’ is properly employed, as the Code itself indicates.** But since little control, if any, of these privileges is left to the grantee, they can only be ealled late sumpta. In regard to privileges granted outside of the Code, the same characteristic, 2. e., freedom in using a privi- lege, will determine whether or not a privilege is stricto, or lato sensu. Privileges in particular law will be judged according to this norm. Concessions outside of both common and particular law will usually be strict privi- | leges. A paragraph concerning the negative aspect of a privilege will complete this discussion. Positive law does not state that special rights conceded by means of privi- leges are not to be used by non-privileged persons. Altho such a statement would clearly set off the distinct char- acteristic of a privilege (favor specialis), yet it is scarcely necessary to state categorically that special rights are not to be used unless specifically granted. The law is the general standard of rights as well as of obli- gations. Any right outside of law must, in some way, be the result of special concession. Completing the distinction between privileges strictly so called and privileges widely so called, it is necessary to state that unless the context demand otherwise, a strict privilege is meant in this dissertation. 82 E.g., Can. 123, 618. Principles of Privilege According to the 9 Code of Canon Law d. Privilege in the Decree of Gratian, and in the Decretals of Gregory IX. Gratian taught: Privilegia sunt leges privatorum, quast privatae leges. Nam privilegium inde dictum est, quod in privato feratur.® Altho Gratian understands privileges as laws, yet he could scarcely have meant a law in the strict sense of the word. In the very next distinction** Gratian gives the qualifications of a law. EHrit autem lex honesta, vusta, possibilis, secundum natu- ram, secundum consuetudinem patriae, loco temporique convemens, necessaria, utilis, manifesta quoque, ne ali- qud per obscuritatem inconveniens contimeat, NULLO PRIVATO COMMODO, SED PRO COMMUNI UTILITATE CIVIUM conscripTa. In both citations Gratian’s authority is Isi- dore.*® Glossa ** interprets the word leges to mean strict laws, but this contention is based on the use of this word as contained in a Decretal of Pope Innocent III.*’ After describing the contentions of two abbeys rel- ative to the appointment of an Abbot, Innocent III says that a privilege is a private law.** It is scarcely likely that Pope Innocent meant to define a privilege as a real law, because the case he has in mind only concerns the monks of the two abbeys in question, and in no wise ful- fills all the requirements of a law, common good, promul- gation, etc. Arguing from the concession granted by Pope Paschal, confirmed by Pope Callixtus I, Innocent III de- cides that the privilege is legitimate and must be hon- 88 C, 3, D, III. 84 C. 2, D. IV. 85 For privilege: Htym. lib. V, c. 18, n. 1, MPL. v. 82, col. 202; for law: Etym. lib. II, ce. 10, n. 6, MPL v. 82, col. 131. 36 Glossa is helpful in giving the use of the word privatt. Privati sunt: (a) non constituti in aliqua dignitate, (b) excepti a ture commun sive sit collegiwm, sive sit aliqua spectalis persona. 37 C, 25, X, de verborum significatione, V, 40. 38 Quum privilegium sit lex privata; c. 25, X, de verborum significatione, ? 10 Principles of Privilege According to the Code of Canon Law ored. Certainly the monks of Saint Silvan’s abbey, who acted in opposition to the privilege given to the other monastery, were obliged to live up to the terms of the privilege. But this obligation arises fundamentally from natural law: no one is allowed to infringe the rights of another. It is true that this can be called an obligation resulting from a privilege, but it is not enough to make a strict law of a privilege. In the case at hand the monks of Saint Bertin, who enjoyed the privilege of having one of their number elected Abbot of Saint Silvan’s abbey, were not obliged to use their privilege. But in fact it is their continued and tenacious use of their privilege (thru the election of seven Abbots) which makes their case so strong with Innocent III. The monks went so far as to require a certain Guarinus, a monk of Saint Silvan’s, to make his profession in the abbey of Saint Bertin, and there remain for a time before the Abbot would consent to his election as the head of the abbey of Saint Silvan.*® 6. Various definitions of Privilege. An argument from strict juridical principles does not destroy the clause quum privilegium. sit lex privata.*® Suarez" for one held a privilege to be a strict law. Since Suarez is one of the principal adherents of this opinion, it would be well to outline his doctrine on the matter rather fully. Suarez*? says that every just law which does not impose a special and odious obligation is in a certain sense a privilege. One reason is because of its directive nature.*? Suarez then shows the double accepta- 39 In a recent work Brys, De Dispensatione tn Iure Canonico, (Brugis, 1925), claims that commentators on the Decretals did not draw a strict line of demarcation between privileges and dispensations. Some indeed identified the two concepts. p. 101, 168-9. 40 C, 25, X, de verborum significatione, V, 40. 41 Suarez, o.c., lib. VIII, c. 1, n. 2. 42 Suarez, o.c., lib. VIII, pr. 43 Illwminat, dirigit, et in officio continet, 1.c. Principles of Privilege According to the 11 Code of Canon Law tion of the word privilegiwm:** the word means either the favor conceded, or the document in which the favor is contained. Next Suarez says that not every privilege iis a law, because some favors are not perpetual.* Stabil- ity is Suarez’s standard. If a favor is not permanent, but is given for a certain time, it is not a law. Con- - structing his definition philosophically, Suarez uses the word lex as the genus, and the word privata taken from Innocent III,*® as the species. The favorable aspect is taken from the object of the privilege. Completed, the definition reads: lex privata aliquid speciale concedens.** Suarez will not admit that the word privata destroys the idea of a strict law, but, instead, makes the word a characteristic by which a privilege is distinguished from other laws.** But Suarez is forced somewhat to recede from his position when he discusses the necessity of promulga- tion.*® Then he maintains that many concessions do not receive promulgation. Suarez is obliged to concede that natural law at least supplies the fundamental reason for the non-interference with a privilege. Suarez takes re- fuge in the fact that the privileged person must exhibit a document to prove his concession, should it be chal- lenged. Thus this simple form of proof supplies the notice which a community must have to respect a privi- legre. Suarez is incorrect in his classification of a privi- lege. Stripped of some of the essential elements of a real law, namely, direct obligation, common observance, and promulgation, the only notes which remain common to privilege and law are source and stability. Both law 44 Suarez, o.o., lib. VIII, c. 1, n. 1. 45 Suarez, 0.c., lc. 46 ©, 25, X, de verborum stgnificatione, V, 40. raat Suarez, 6.0;; ib. VILI, ¢c..1):n.:3- 48 Suarez, o.c., lc. 49 Suarez, o.c., lib. VIII, c. 24, n. 7. 12 Principles of Privilege According to the Code of Canon Law and privilege come from the same legislator, and both ean have equal permanence. But this is not sufficient to put the two canonical institutes in the same category. Cardinal Hostiensis™® was another canonist who con- sidered a privilege to be a law. He draws his support from Gratian and Innocent III. Consequently, it would be superfluous to repeat the remarks on the interpreta- tion of the sources. The same reasons for maintaining that neither Gratian, nor Innocent III had used the phrase lex privata in the strict sense also militate against the propriety of Hostiensis’ definition of privilege. Herinex™ gives a definition for privilege which is not better the Suarez’s definition. He writes: Privileguum est constitutio principis specialem favorem concedens. A privilege gives the right either to perform some action, or to omit it. ue An analysis of the elements of Herinex’s definition of privilege will reveal how unacceptable it is. Consti- tutio is usually a document which founds a general law. | Acecpted in this sense, Herinex’s definition falls into Suarez’s error, and it must be rejected, for a privilege is not a law since the latter must be issued for general observance. Besides, constitutio allows only for a privi- lege which is found in writing. This would not be suffi- ciently extensive as a privilege can also be obtained by custom and prescription.’ The word principis is mis- leading, for it does not seem to cover all competent Supe- riors. A better expression would have been auctoritatis competentis. In using the latter expression every Supe- rior is held within his own province, and the legitimate power of Superiors inferior to the Roman Pontiff is recognized. 50 Hostiensis, Swmma Aurea, (Venetiis, 1570), lib. V, in tit. de privilegiis et excessibus privilegiatorum, n. 1. 51 Herincx, o.c., tr. 3, disp. 4, q. 3, n. 53. 52 Maroto, o.c., v. I, n. 238. 53 Can. 63, $1. Principles of Privilege According to the 13 Code of Canon Law Reiffenstuel’s definition of privilege is: Lex privata contra, vel praeter ius aliquid concedens.** Reiffenstuel admits there is no obligation in respect of the privileged person, but merely in regard to the community which must not interfere with the privilege. In explaining why there is no obligation in respect of the grantee, Reiffen- stuel says nemo beneficio sibi concesso uti cogitur. This statement is enough to weaken Reiffenstuel’s definition of privilege. If the principal beneficiary is under no obligation to use his privilege, the concession is anything but a strict law, for a law imposes a direct obligation on those for whom it is enacted. Concessio, or donatio would have been a better word in Reiffenstuel’s definition, and not the word lex, even if the last-named word is qualified by the adjective privata. Some modern authors, such as Wernz,”’ and Blat®® retain Suarez’s definition of privilege. Their explana- tion is practically the same, and it is founded similarly on the text of Innocent III.°7 A phrase approaching lex privata is used by Vermeersch.®® He defines a privilege thus: zus singulare qubusdam concessum. This defini- tion is not entirely acceptable. Granted that the noun ius is used properly to mean a right, or faculty, never- theless it stresses the object of a privilege rather than its formal element. An earlier and somewhat different definition of privilege was given by Grandclaude. Priv- alegium est ius singulare contra vel praeter tenorem wris communis, ob aliquam utilitatem a principe concessum. In his explanation of his definition, Grandclaude makes 54 Reiffenstuel, o.c., lib. V, tit. XXXITI, n. 3. 55 Wernz, o.c., v. I, n. 158. 56 Blat, Commentarium in Textum Codicis Iurts Canonict, (Romae, 1921) A Pad ee et A 57 C, 25, X, de verborum significatione, V, 40. 58 Vermeersch-Creusen, Epitome Iuris Canonict, (Mechliniae-Romae, 1921), Vers. 128. 59 Grandclaude, Ius Canonicum, (Parisiis, 1883), lib. V, tit. XX XITI, n. 1. 14 Principles of Privilege According to the Code of Canon Law wus almost synonymous with lex. For this reason his definition is unacceptable. Passing from an account of authors who more or less stressed the idea of law in their definitions of privi- lege, there remain to be examined several definitions which indeed use the word lex, but explain it so that only an analogical resemblance exists between privilege and law. The Jesuit canonist, Schmalzgrueber, preserved the form of Suarez’s definition of privilege, but explained it in afar different fashion. A privilege is a private law, but only analogically, and improperly so called. With this explanation the phrase private law can remain in a definition of privilege since one of the effects of a privi- lege is non-interference with the use of a privilege. Altho this effect primarily arises from the natural law, as Her- inex admits,® yet it is often embodied in the concession itself so that no excuse may be left to the transgressor. Human ingenuity can devise various methods of inter- . fering with, or hampering the pacific use of a privilege. The result would be that the benevolent will of the legis- lator would be thwarted. That such interference oc- curred in the past, the following Decretal of Honorius IIT will show. The monks of Cluny could not be excommunicated by the Ordinaries of the dioceses in which the Cluniae mon- asteries were situated. Some of the officials, however, indirectly violated the rights of the monks in obliging them to suffer the effects of excommunication. Thus in preserving the letter of the monks’ privilege, for they did not formally pass sentence of excommunication, the officials nevertheless infringed on the rights of the monks. Hearing of this dissimulation, the Pope ordered the offi- 60 Schmalzgrueber, Ius Eecclesiasticum, (Romae, 1845), lib. V, tit. XXXII, n. 2-3. 61 Herincx, o.c., tr. 3, disp. 4, q. 4, n. 53. Primciples of Privilege According to the 15 Code of Canon Law cials to cease their activities, and obey both the letter and the spirit of the monks’ privilege.” While the definition of Schmalzgrueber might reason- ably be accepted yet for purposes of clarity, it is not perfect. A definition should be clear and concise, leaving no room for misunderstanding. Consequently, whenever possible error may arise from the wording of a definition, it should be recast, and presented in another form. One of the latest canonists to write on privileges still retains the expression lex privata. But like Schmalz- erueber, Cicognani® explains his definition in such a way that the idea of a strict law is destroyed, leaving merely an analogical and improper meaning. Woywod™ also uses the expression ‘‘private law,”’ but deprecates the use of this expression because it can- not be upheld at least in the provisions granted to indi- vidual persons. Sanguineti gives a definition of privilege which seems to be acceptable. Privilegium est concessio per- manens alicuius iuris specialis a legitimo Superiore facta. In this definition the nature of privilege is cor- rectly described as a concession. Thus the beneficiary is not obliged to accept the right granted for a concession usually implies voluntary acceptance of the provision. This note of free acceptance is even acknowledged by those who claim that a privilege is a strict law.*° Custom and prescription are also sources of privi- lege. Hence it is necessary to understand Sanguineti’s concessio as including legal concession. “62 C. 20, X, de privilegiis et excessibus privilegiatorum, V, 33; cf. also Seite. ARV, Q. 2. 63 Cicognani, 0.c., p. 273. 64 Woywod, A practical Commentary on the Code of Canon Law, (New ors, 1925), v. I, n. 46. 65 Sanguineti, Institutiones Iuris LEcclesiasticit Privati, (Romae, 1884), n. 137. 66 Reiffenstuel, o.c., lib. V, tit. XX XIII, n. 3. 67 Can. 63, § 1. 16 Principles of Privilege According to the Code of Canon Law The idea of permanence as contained in a privilege is not essential to the nature of a privilege, and for this reason it could be omitted from the definition of privi- lege. The phrase alicuius iuris specialis is well used for a privilege grants a right which is otherwise unattain- able, either in itself or in its permanence. This idea of speciality is so necessary to a privilege that without it a privilege would be unintelligible. The common law gives certain rights. If a privilege did no more than this it would be practically useless. The necessary competence of Superiors is well ex- pressed in Sanguineti’s definition of privilege. This idea _will be developed in the next chapter. Cocchi® defines privilege in the same way as San- guineti. Before the Code, Makee® used practically the same definition. : In this dissertation Sanguineti’s definition of privi- lege will be adopted. However, the word permanens will be omitted since it does directly touch the essence of a privilege. With this omission the definition of privilege reads: Privilegium est concessio alicuius iris specialis a legitimo Superiore facta. 7. A proportionate cause relative to a privilege. (a) For the validity of a privilege. The will of the legislator is the sole force upon which obedience to the law rests. Hence the obligation to obey the law can change in whatever way the legislator alters his will. A proportionate cause is not necessary in order that a legis- lator may change his will, and consequently a proportion- ate cause is not necessary for the concession of a privi- lege. Schmalzgrueber™ classes a privilege as a kind of 68 Cocchi, o.c., v. I, n. 114. 69 Makee, Institutiones Iuris Ecclesiastici, (Parisiis, 1897). _ 70 Schmalzgrueber, o.c., lib. V, tit. XX XIII, n. 17. Principles of Privilege According to the 17 Code of Canon Law donation. But a donation can be made without cause, and hence a privilege. Reiffenstuel” says a legislator can remove a law ex toto, and in the same way ex parte, as he does ina privilege. Pirhing’? adds no more but uses the argument from the will of the legislator. In granting indulgences a proportionate cause is _always necessary for the validity of the indulgence.”? In a concession of this kind the Holy Father dispenses the merits of Christ. The Pope is not the master of these merits, and therefore must always have a reasonable cause to grant an indulgence. (b) For the liceity of a privilege. A word will suf- fice to explain the necessity of a proportionate cause for the liceity of a privilege. Justice must rule in a society, and consequently everything which would savor of ca- price must be avoided. Without a proportionate cause a privilege granted contrary to the law would injure justice. A privilege granted beyond the law without a reasonable cause would render the legislator guilty of undue favoritism. The legislator, or Superior must clearly intend the particular good of the grantee. But as this redounds to the common good he must also consider this aspect. Various reasons might be suggested, é. g., desire to fos- ter religion, utility, rewarding special service, ete.” 8. Writing not essential to a privilege. Is it necessary for validity that a privilege be con- ferred in writing? The question is restricted to those privileges which have their origin in the direct conces- sion of the legislator. Proper proof of a privilege does 71 Reiffenstuel, o.c., lib. V, tit. XX XIII, 72 Pirhing, Ius Canonicum, (Dillingae, (674), ED, V, tit. XX XIII, n. 12. 73 Aertnys-Damen, Theologia Moralis, (Buscoduci, 1919) Uk a Lisi. 1113. 74 Herincx, 0.¢., tr. 3, disp. 4, q. 4, n. 62, 40 Clog tls Ge ti Giese Oe RRL. 4, 18 Principles of Privilege According to the Code of Canon Law not enter into the question. Only the essential influence of writing is considered. Suarez” says that writing does not enter the sub- stance of a privilege. He advances two reasons: first, there is no positive law which requires a document; sec- ond, because of the nature of the case the will of the legislator suffices. Suarez’s second reason, is the proper juridical explanation for the non-necessity of a docu- ment. Reiffenstuel,“” Schmalzgrueber,” and Pirhing” make very light of the question of writing relative to the valid- ity of a privilege. All three agree that the will of the legislator is sufficient. Opposed to this argument are two texts of Corpus Turis which apparently suggest the necessity of writing relative to the validity of a privilege. | Innocent IV wrote: Postquam semel omnes provin: ciae suae dioceses visitaverint, licitum sit ei postea, prius tamen suffraganeorum suorum requisito consilio, et ipsius ideffinitione super hoc habita coram eis, (quae in scripto esse volumus, ut possint alus esse nota,)********* onpor- tunum.°° Alexander III wrote to the Bishop of Amiens: Porro, quamvis Templaru et Hospitalarit multa sint liber- tatis praerogativa donati, non dubitamus, quin aliam libertatem habeat in locis, in quibus, antequam pervents- set ad eos, fuerant habitatores quod totum ex inspectione privilegiorum suorum plenius advertere potes, et secun- dum quod inveneris, ita observes. Sic enim eos volunwus priwvilegiorum servare tenorem, quod eorum meta trans- gredi minime videantur.* 76 Suarez, o.c., lib. VIII, ¢. 2, n. 2. 77 Reiffenstuel, o.c., lib. V, tit. XXXIII, n. 28. 78 Schmalzgrueber, o.c., lib. V, tit. XX XIII, n. 14. 79 Pirhing, o.c., lib. V, tit. XXXIII, n. 4. 80 C. 1, de censibus, exactionibus, et procurationibus, ITI, 20 in VI. 81 C. 7, X, de privilegiis et excessibus privilegiatorum, Vi aaa. Principles of Privilege According to the 19 Code of Canon Law Suarez takes up these texts and shows that the ques- tion agitated was concerning the proof of the privilege. Very properly Suarez says that it is not permitted to infer that writing is necessary for the substance of a privilege. The two concepts are plainly different and from different things an inference has no place. At most Suarez admits a necessity non simpliciter sed ad melius esse. Prescription of a Superior, however, may make a document necessary in particular cases. 9. Must a Privilege be promulgated? Promulgation is the publication of a law by the com- petent authority.®* Its purpose is to induce knowledge of a law and engender an obligation in respect to its observance. Promulgation differs from divulgation: the latter is diffusion of knowledge concerning the law. In all law promulgation is necessary. This necessity is founded upon the very idea of a law which is supposed to be a rule, or norm of human acts. Hence this rule must be known, or at least published in order to obtain its pur- pose.* With this in mind, privileges in the wide sense, e. g., clerical privileges, require promulgation. These privi- leges are real laws. Consequently they follow the neces- sity of laws. Now such laws contain a concession either as its substance, or as an accessory. Jn the first case, the privilege must be promulgated, not because it is privi- lege, but because it is a law. In the second case, the accessory follows the principal item. Since the latter is promulgated, the accessory is promulgated with 1t.*° On the other hand, it is easy to see that canonical promulgation has no place in privileges strictly so called. 82 Suarez, o.c., lib. VIII, ¢. 2, n. 3. 83 Wernz, o.c., v. I, n. 100. 84 C. 3, D. IV; Aertnys-Damen, o.c., v. I, n, 144; Blat, o.c., v. I, n. 64. 85 Suarez, o.c., lib, VIII, c. 14, n. 6-7. 20 Principles of Privilege Accordiwg to the Code of Canon Law Yet ordinarily some modification is necessary, both in regard to the grantee himself, and in regard to others who must respect the use of the privilege. The notice which should come to the grantee can take any form whatsoever. But absolute validity does not demand this notice. The legislator ean, without any notice, or acceptance on the part of the grantee, concede him a privilege. The laws themselves were made by the legislator, or his predecessors and he has entire control over them. Yet strict privileges will usually contain the condition si privilegium sibt concessum acceptet.*® Proper government demands that favors be accepted and in order to be accepted they must first be known. Notification of a privilege to interested parties who must respect the legitimate use of the concession can take place at any time at all. No solemn promulgation is necessary. Practically speaking, this notification will become the proof of a privilege, and it will be considered in the chapter dealing with the proof of a privilege. 10. Difference between Privileges and other Canonical Institutes. A. The differences between a law and a privilege have been noticed thruout this chapter. But in order to have these differences in one place, they will be repeated here.*? A privilege and a law differ in the following manner: (a) a law is made for a community; a privilege is granted to individual persons, or to classes of persons: (b) a 86 Schmalzgrueber, o.c., lib. V, tit. XX XIII, n. 24; Can. 37 proposes the doctrine to be held concerning the validity of rescripts before ac- ceptance; Kescriptum impetrari potest pro alio etiam praeter eius assensum ; et licet ipse possit gratia per rescriptwm concessa non uté, rescriptum tamen valet ante etus acceptationem, nisi aliud ex apposi- tis clausulis appar eat. 87 Herincx, 0.c., tr. 3, disp. 4, q. 4, n. 53; Grandclaude, o.¢., lib. V, tit. XXXIII, n. 1; Humphrey, Conscience and Law, (London, 1896), p. 163; Maroto, o.c., v. I, n. 292; Cocchi, 0.c., v. I, n. 114 Principles of Privilege According to the 21 Code of Canon Law law of its nature is perpetual; a privilege is not always perpetual: (c) a law must be promulgated; a privilege need not be promulgated: (d) a law consults the common good; a privilege consults the particular good; (e) a law thas binding force; a privilege ordinarily has no binding force: (f) a law may deal also with penalties; a privilege considers only favors. B. A dispensation is a relaxation of the law in a particular case.*® A dispensation differs from a privi- lege in the following manner:*® (a) a dispensation is always against the law; a privilege may also be outside of the law; (b) a dispensation is frequently granted for a single act; a privilege always implies a number of acts even when 4 is given ad tempus; (c) a dispensation often removes an obstacle which would hinder an act accord- ing to law, as in the case of a dispensation from an irregu- larity; a privilege permits a person to act contrary to the law, or beyond it; (d) a dispensation concerns a fact; a privilege is a norm of action. C. A rescript is a written answer to a petition. A rescript differs from a privilege in several ways: (a) a rescript is the document itself; a privilege is the favor contained in the document; (b) a rescript contains the interpretation of a law, or a dispensation, or a favor; a privilege is limited to a favor; (c) in general, a reseript refers to the form of a concession; a privilege is the concession itself. "88 Can. 80. Dispensatio, seu legis in casu speciali relaxatio, concedt potest a conditore legis, ab eius successore vel Superiore, nec non ab illo cut tidem facultatem dispensandt concesserint. 89 Herinex, o.c., l.c., n. 54; Sanchez, De Sancto Matrimonio Sacramento, (Antwerpiae, 1626), lib. VIII, disp. I, n. 1; Zallinger, Institutiones Turis Ecclesiastici, (Romae, 1832), lib. V, tit. XXXITI, § 263; Genicot, Institutiones Theologiae Moralis, (Bruxellis, 1922), 9 et 10 ed., v. I, n. 144; Humphrey, o.c., p. 164; Sanguineti, o.c., p. 72; Bargilliat, Praelectiones Iwris Canonici, (Parisiis, 1918), v. I, n. 100. 90 Palao, Opus Morale, (Lugduni, 1682), tr. III, disp. IV, p. I, n. 5; Grandclaude, o.c., lib. V, tit. XX XIII, n. 1; Maroto, o.c., v. I, n. 292; Cocchi, o.c., v. I, n. 114, 22 Principles of Prwilege According to the Code of Canon Law D. Gratia, or beneficium principis differs from a privilege in several ways:* (a) every privilege is gratia in one form or another; but not every gratia is a privi- lege: (b) gratia is a concession in itself, e. g., benefice, or office; a privilege is a right to perform some action, or to omit performing some action: (c¢) gratia is a favor granted beyond the law; a privilege may also be con- trary to the law. 91 Palao, o.c., le., Devoti, Instituttones Canonicae, (Romae, 1825), v. I, e. III, § 36; Tamburini, Opera Omnia, (Venetiis, 1702), v. II, p. 317; St. Alphonsus, Theologia Moralis, (Augustae Taurinorum, 1879), lib. I, app. IT, c. I,-n. 1; Mareto, 0.c.,'l.c.3; Cocchi; 0.¢,; ‘Le; CHAPTER II AUTHOR, SUBJECT, AND OBJECT OF A PRIVILEGE. As the successor of Saint Peter, the Pope possesses the plenitude of power in all ecclesiastical matters... The Bishops succeed the College of Apostles. The personal prerogatives of the Apostles were not communicated to the Bishops. Thus the succession of the Bishops is per- fect only when they act in unison as, for instance, in ecumenical councils. Nevertheless the power of the keys (potestas clavium), as the power derived from the Apostles is called, resides in both Pope and Bishops; in the former as pastor with universal jurisdiction,? and in the latter as pastors with particular jurisdiction.‘ Zallinger expresses the idea well: Claves a Christo datae sunt uni, et datae sunt unitatr.® The Pope and Bishops are legislators with the power of binding in conscience.® Since they are the founders of their law, it follows that they can exempt from it.’ 1 For dogmatic proof cf. Conc. Vat., Const. (Pastor Aeternus), ¢c. 3; Bellar- minus, Opera Omnia, (Neapoli, 1872), v. I, lib. IV, c. XII-XVIII; Pesch, Praelectiones Dogmaticae, (Friburgi Brisgoviae, 1924), v. I, n. 464, 477-503. Cf. also Bacchinius, Dissertatio de Ecclesiasticae Hierarchiae Originibus, (Mutinae, 1703), pars I, c. III, n. 4, 25; Nannetti, Brevi Nozions di Diritto Publico Ecclestastico, (Bologna, 1840), v. I, pars II, § LVII, LIX. 2 For dogmatic proof cf. Conc. Tridentinum, sess. XXIII, de ordine, ce. 4, can. 8; Pesch, o.c., v. I, n. 433, 441; Cf. also Bargilliat, Praelectiones Iuris Canonici, (Parisiis, 1918), v. I, n. 587. John c. 21, 15-17. Bargilliat, o.c., v. I, n. 594. Zallinger, Institutiones Iuris Naturalis et Eccl. Publici, (Romae, 1823), lib. V, CCCLIX. 6 Cardenas, Crisis Theologica, (Venetiis, 1700), disp. XXII, ec. 2-5; Bouquillon, Theologia Moralis Fundamentalis, (Brugis, 1890), n. 97. 7 Vecchiotti, Institutiones Canonicae, (Taurini, 1867), lib. II, c. II, 14, 20. AP w [ 23 ] 24. Principles of Privilege According to the Code of Canon Law Hence, the power to grant privileges, at least those con- trary to the law, resides in the legislators.2 Kvidently the utility of a strictly ecclesiastical law is in some way subject to circumstances. These circumstances may vary, and thus a complete revocation, or abrogation, would be necessary. In the same way, an individual good may be served without serious injury to the common good. This would give rise to either a dispensation, or to a privilege eontrary to the law. If a legislator can abrogate a law, a fortiore, he can grant individual exemptions, or privi- leges. 1. Authors of Privilege. THe Porn. In ecclesiastical matters the principal legislator is the Pope. His power is not subject to human limitations.® His jurisdiction is universal.?® Hos- tiensis'! and Suarez’? paraphrase the words of Innocent III thus: Privilegium Ponttficis esse generale et divinum, ab wlo autem manasse omnia canonca mstituta.* Both - these writers interpret the word privilegiwm in this cita- tion to mean supreme authority, but Suarez adds that this refers to spiritual jurisdiction. Yet besides this power in strictly spiritual matters, the Pope can grant a mixed privilege in two ways: first, in regard to tem- poral things which indirectly become spiritual, and, sec- ond, in purely temporal things with a view to a spiritual 8 Ballerini-Palmieri, Opus Theologicum Morale, (Prati, 1889), v. I, n. 388, Y ® The Pope cannot grant a dispensation, or a privilege in matters of divine law. Thus the Pope cannot dispense from the impediment of . ‘‘ligamen.’’ Cf. Aertnys-Damen, Theologia Moralis, (Buscoduci, 1919), v. Il, mn. 772; Cappello, De Sacramentis, (Taurinorum Augustae, 1923), v. III, n. 224. 10 Can. 218; Brys, o.c., p. 77. 11 Hostiensis, 0.¢., lib. V, Le. 12 Suarez, o.c., lib. VIII, c. 8, n. 7. 13 Quum ex illo generali privilegio, quod beato Petro et per eum ecclestae Romanae Dominus noster indulsit, canonica postmodwm manaverint instituta, ******** de iure pertineant. ©. 1, X, de translatione Episcopt, I, 7. Principles of Privilege According to the 25 Code of Canon Law purpose. Thus tithes as well as legitimation can become the object of a privilege.** The Pope cannot grant a privilege when it would be contrary to his own dignity. However, he can concede favors where his dignity is not infringed: e. g., giving others the right to fill benefices which otherwise would | belong to him. The Pope can grant privileges beyond the law pro- vided he has dominion over the object of the privilege. Altho the power to grant privileges resides in the Pope, it is not necessary for him to exercise this power personally. This power can be delegated. In fact, the Congregations of the Roman Curia are the usual chan- nels thru which the Pope concedes his favors.’® BisHors. Besides the Pope, Bishops enjoy ordinary power to make laws.‘*7 Their jurisdiction, however, is confined to the territory which has been assigned to their care.’® Bishops, therefore, cannot grant privileges which are contrary to the common law of the Church.’® This power, however, may be enjoyed thru delegation. Nor can Bishops grant privileges contrary to the laws of a provincial, or plenary council. In these councils the indi- vidual Bishop is only one of the legislators,” and conse- quently he has not entire control of the law. In common law the Code recognizes the power of dispensation”? but postulates a just cause without which the dispensation would be invalid. In particular law the Code concedes the power of dispensation, but it does not concede the power of granting privileges.” 14 Suarez, o.c., L.c. 15 Suarez, o.c., lib. VIII, c. 8, n. 8. 16 Can. 7, 247-258. 17 Can. 329, §1; Suarez, o.c., lib. VIII, c. 8, n. 9. 18 Demeuron, L’Eglise, (Paris, 1914), p. 76, 123. 1D) Wernd,0.c., Vv. 1,0: 159, 13. Cocehi, o.¢., v. I, n.,116. _ 20 $.C.8. Off., Sept. 10, 1896, Coll. n. 1952, 21 Can. 81, 84, 22 Can, 291, $2, 26 Principles of Privilege According to the Code of Canon Law Contrary to his own laws, a Bishop enjoys the power of granting a privilege. In these laws the Bishop is the sole legislator," and has entire control over the laws.** Outside the field of his own law, a Bishop can grant a privilege provided the object of the privilege is not already forbidden in some way in common law, and pro- vided the Bishop has dominion over the object of the privilege. Therefore, Bishops cannot grant habitual faculties since they themselves do not enjoy these facul- ties.*° Vicars, AND Prerects Apostotic. Ordinary power is also enjoyed by Vicars and Prefects Apostolic.*® Their power to grant privileges is the same as that of the Bishops. Apostotic ADMINISTRATORS PERMANENTER CONSTITUTI. According to the Code,”’ the power of the permanently assigned Apostolic Administrators is the same as the power of the Bishops. Hence their competence in the - field of privilege is similar to the power of the Bishops. Appots AND PreLATES NULLIUS. Abbots, and Pre- lates nullius also possess ordinary jurisdiction.** Hence they, too, are competent to grant privileges contrary to their own laws. But they cannot concede privileges con- trary to the laws of the provincial, or plenary council in which they must take part.” Retiaious SuPERIORS AND CHapters. By disposition of law,®° religious Superiors and Chapters in exempt clerical institutes have the power of jurisdiction. Since 23 Can. 362. 24 Craisson, Manuale totius Iuris Canonici, (Pictavii, 1875), 4 ed., v. I, Thee G.s 25 Wernz, o.c., v. I, n. 159, ad caleem 25. 28 Can. 294, §1 27 Can. 315, $1. 28 Can. 323, $1. 29 Can. 285, 291, § 2. 30 Can. 501, $1. Principles of Privilege According to the 21 Code of Canon Law both the religious Superiors and the Chapters are legis- lators, they can concede privileges contrary to their laws unless forbidden by their constitutions. In addition to their ordinary power of granting privi- lees in the matters of their own laws, Ordinaries may concede privileges by reason of delegation, or by reason ‘of vicarious power. Thus Bishops, Abbots, or Prelates mullius, Vicars, and Prefects Apostolic, and major Supe- riors of exempt clerical religious enjoy the power of declaring an altar privileged.** ; Briefly, the power of Superiors to grant privileges can be gathered from these simple rules: (a) the Pope is competent in all laws, general or particular, no matter whether the laws are made by himself, or by an ecu- menical council, or by a predecessor, or by an inferior legislator; (b) a Bishop, or a Prelate with ordinary juris- diction is competent merely in the laws made by himself, or by his predecessor;*” (c) Privileges beyond the law can be granted by Superiors provided they have domin- ion over the object of the privilege. All Prelates inferior to the Pope cannot grant a privilege beyond the law should the object of the privilege be forbidden in some way in common law. 2. Subject, and Object of a Privilege. Supsect oF a Privitecr. The subject of a privilege contrary to the law, must be one who is first under obe- dience to the law itself.*? Since this kind of a privilege exempts from the obligation arising from the law, it is necessary that an obligation should first exist else there can be no exemption from it.** Privileges beyond the 31 Can. 916. 82 Bargilliat, o.c., v. I, n. 102; Ayrinhac, General Legislation in the New Code of Canon Law, (New York, 1923), n. 157. 33 Hostiensis, 0.c., de privilegiis et excessibus privilegiatorum, n. 7. 34 Cocchi, o.c., v. I, n. 116; Maroto, Institutiones Iuris Canonici, 3 ed., (Romae, 1921), v. I, n. 296. 28 Principles of Privilege According to the Code of Canon Law law, however, can be conceded to non-subjects of the law.*> But the matter of the privilege beyond the law, even if it is conceded to a non-subject of the law, must be included in matter over which the legislator has con- trol, and concerning which he can force respect for the privilege. Jurisdiction is not necessary in conceding privileges beyond the law.*® Oxssect oF A Privitecr. A privilege should be just, reasonable, and honest.*’ Anything, then, which fulfills these three requisites, can become the object of a privi- lege. Primarily this is true of privileges contrary to the law. Besides, the object of a privilege must contain a special favor.*® Lastly, the concession should usually be permanent in accordance with the principle decet con- cessum a principe beneficium esse mansurum.*® 35 Makee, o.c., v. I, n. 319. 36 Wernz, o.c., v. I, n. 159, 2. 87 Suarez, o.c., lib. VIII, c. 9, n. 1. 88 C. 25, X, de verborum significatione, V, 40, nec esset privata (lea) nist aliquid specialiter indulgeret. . 39 R.J. 16 in VI; Can. 70. Privilegiwm, nisi aliud constet, censendum est perpetuum. CHAPTER III DIVISION OF PRIVILEGES. Before entering upon the various divisions of privi- eges as found in commentaries published after the pro- mulgation of the Code,’ it will be interesting to see how, in a few bold strokes, one author grouped all privileges. The Jesuit Tamburini, who wrote more than two cen- turies ago, prefixed this division of privileges to his commentary on the Bulla Cruciatae. Privileges, says Tamburini, are personal, real, or mixed.? Mixed privileges accrue to individual persons iby reason of age or condition. Real privileges are con- nected with places or certain kinds of actions. Personal privileges, however, are conceded to individual persons, either because of their own merit, or because they hap- pen to be members of a privileged community. The last-named subdivision is called a corporal privilege. It ean be further subdivided in privileges which all the members, as individual persons, can enjoy, and privileges which are enjoyed only when the community acts as a unit. This scheme of division proposed by Tamburini, is useful enough to obtain a general view of the several classifications of privileges, but its utility scarcely goes beyond generalities. Both strict and non-strict privileges ean be fitted into the parts of the entire scheme. While 1 Maroto, Institutiones Iuris Canonict, (Romae, 1921) 3rd edition, v. I, n. 293; Vermeersch-Creusen, o.c., v. I, n. 129; Blat, Commentarium in textum Codicis Iuris Canonici, (Romae, 1921), v. I, n. 133; Augustine, 4 Commentary on the New Code of Canon Law, (St. Louis, 1921) 4th edition, v. I, p. 153; Ayrinhac, General Legislation in the New Code of Canon Law, (New York, 1923) n. 115. _2 Tamburini, Opera Omnia, (Venetiis, 1702), v. II, p. 317. [29 ] 30 Principles of Privilege According to the Code of Canon Law this same objection is valid, in a certain sense, against the divisions proposed by modern authors, yet it loses much of its force from the clear line of demarcation between those privileges which are particular concessions, and the privileges which are properly speaking laws con- taining a favor. Once this necessary distinction is made, and properly understood, no difficulty will arise concern- ing the nature, interpretation, and use of the privileges found in the various divisions. Divisions or Priviteces. 1. The first division of privileges is sought in the souree of the concession. According to this division, privileges strictly so-called are concessions embodying afavor. In an efficient sense, it is the provision itself which is called a privilege, but in a subjective sense, the privilege is the favor con- tained in the grant. These privileges are not laws, altho, by analogy, they are frequently described as favorable laws... On the other hand, privileges widely so-called are real laws. They too, in an efficient sense, are the laws themselves, while in a subjective sense, the privi- leges are the favors contained in the laws. Thus in the new Code are enumerated the privileges of clerics,® of religious,® and of novices.’ Besides these widely so-called privileges of the new Code, such privileges can also exist in particular law. An example of such a privilege would be a particular form of election, different from the method described in the Code.® Privileges coming under this subdivision must be carefully distinguished from strict privileges 3 E. g., Wernz, o.c., v. I, n. 158, IT; Maroto, o.c., v. I, n. 291; Blat, O.0s,) Week. Tks 129; Augustine, 0.0., Veale parkas Ayrinhae, 0.08 2, 154-155. 4 Maroto, o.c., v. I, n. 293. 5 Can. 119-122. 6 Can. 615. 7 Can. 567, § 1. 8 Can. 161-178, Principles of Privilege According to the 31 Code of Canon Law since the latter likewise are outside the field of common law. Another point must be emphasized here. It is nec- essary to keep in mind the notions of the foregoing divi- sion because the mere classification of a privilege will not always reveal whether or not it is a strict privilege ; the favor may, perhaps, merely emanate from a favor. able common, or particular law. 2. Privileges are divided into privileges contrary to the law, (contra ws) and privileges beyond the law {praeter wus). The first class argues an exemption from the common, or particular law. As observed above,? the concession of such a privilege postulates the power of jurisdiction. This jurisdictional power must be univer- sal, or regional, according to the scope of the law con- trary to which the privilege is granted. Therefore the Pope is competent in all ecclesiastical law; but a Bishop’s competence is limited to his own laws. A privilege be- yond the law is a mere favor which does not injure a law. All that is required to grant such a privilege is dominion, or at least, as in the case of indulgences, the power of dispensation.? Privilegia secundum ius are not proper privileges because no precise concession is made.” | 3. Privileges can be personal (personale), or real (reale). A personal privilege is conceded directly in favor of a person. A real privilege adheres to some dignity, place, or duty. Personal privileges are subdivided into individually (singulariter) personal, commonly (communiter) per- sonal, and corporal (corporale) privileges.’ An indt- 9 Cf. p. 28. 10 The Moly Father is the dispenser, not the master, of the treasury of the merits of Christ existing in the Church. Aertnys-Damen, Theologia Moralis, (Buscoduci, 1920), v. II, n. 1113. 11 Wernz, o.c., v. I, n. 158, ad calcem 12. 12 Maroto, o.c., v. I, n. 293. 32 Principles of Privilege According to the Code of Canon Law vidually personal privilege is one which is granted to a physical person, entirely because of his own merits. The privilege of a portable altar in favor of a priest would be such a privilege. A commonly personal privilege is one granted to physical person because he belongs to a certain state, or possesses a certain dignity. Such are the privileges of Cardinals,’* Bishops,’* patrons,” ete. A corporal privilege is one conceded to a moral person. All the members of this moral person usually enjoy the privilege but only by reason of their association with the moral person.’® Real privileges are likewise subdivided."* Real privi- leges are called local, (locale) if the privilege is granted to a place: muneral (munus, munerale), if granted to a dignity, or office: and properly real (res, reale), if granted to tangible things. ‘This last-named class will inelude the real privileges not distinctly local, or muneral. All real privileges continue even if the physical beneficiary is not at hand to enjoy them. | There are several ways to determine whether a priv:- lege is personal or real. First, the wording of the grant itself will very frequently decide the issue. The object of the privilege may also aid in dispelling a doubt. Similarly, the character of the person who receives the grant may help to solve a doubt. But, if, after using 13 Can. 239. 14 Can. 349. 15 Can. 1455. i6 It is important to know whether a privilege is individually or com- monly personal, or corporal. The first ceases with the death of the grantee (Can. 74). The second likewise, as far as the immediate beneficiary is concerned, ceases with the beneficiary, but the privi- leges themselves continue in the dignity, or office. A corporal privilege continues for another hundred years after the death of the immediate physical beneficiaries. This, of course, supposes that the corporal privileges were not granted for a specified time, and that the moral person continues to exist according to the provision of canon 102. 17 De M eester, Compendium Iuris Canonici et Iuris Canonico-Civilis, (Brugis, 1921), n. 305; Raus, Institutiones Canonicae, (Lugduni- Parisiis, 1923), n. 40, IL. Principles of Privilege According to the 33 Code of Canon Law these criterions, a doubt still remains, the principle of Sexto Bonifacii VIII’® can be applied. Odia restringt, et favores conventt ampliart. This will mean that a favorable privilege can be considered real, and an, odiovs privilege personal.” 4. Privileges can be favorable (favorabile), or odious (odiosum). A favorable privilege contains a fa- vor without causing diminution of the rights of a third party. Thus the privilege of an indulgenced altar is a favorable privilege since no loss, or curtailment of rights results from the use of the privilege. An odious privi- lege, however, contains a favor, but at the same time it diminishes the rights of a third person. HKxemption from tithes would be such a privilege. It is evident that an odious privilege is simultaneously both favorable and odious; the former in respect of the grantee, the latter in respect of interested parties. The reason of the division of privileges into favorable, and odious privileges is sought in the absence, or presence of prejudice to rights of third parties. 5. Privileges can be affirmative (affirmatiwum), or negate (negativum).*? An affirmative privilege pro- vides the faculty to perform some action otherwise un-— lawful. Thus the faculty to absolve from reserved sins, to celebrate certain votive, or proper masses, to bestow special blessings, etc., are all affirmative privileges. A negatwe privilege, on the other hand, concedes an ex- emption from an act demanded by law. Such a grant would be the privilege not to fast on the days required by law. 6. Privileges can be gracious (gratiosum), remu- 18 Cocchi, Commentarium in Codicem Iurts Canonici, (Taurinorum Au- gustae, 1921), v. I, p. 184, scholion; Maroto, o.c., l.c. 19 R. J. 15 in VI. 20 Zoesius, Commentariwm in Ius Canonicum Universum, (Venetiis, 1757), lib. V, tit. XX XIII, n. 6. 21 Raus, o.c., Le. 34. Principles of Privilege According to the Code of Canon Law nerative (remunerativum), or onerous (onerosum). A gracious privilege finds its source in the pure liberality of a Superior. No precise attention is paid to the merits of the grantee. This does not mean that the Superior must not consider the worth of the person he desires to enrich with a privilege, but rather that the worth of the privileged person is not considered as a determining mo- tive in granting the privilege. A remunerative privilege is granted in view of some particular merit, or in grati- tude for the performance of some special service. In these cases the worth of the grantee has a direct influence on the benevolence of his Superior. Signal service in the interest of the Church may be thus rewarded. An onerous privilege has its foundation in justice. It is given in return for a burden assumed. This kind of a privilege will frequently be found in concordats. Maroto” records a special division of privilegium purum, and privileguum conventionale. Conceding that there is some difference between this division and the division of privileges into gracious, remunerative and onerous privileges, nevertheless Maroto’s division can bbe reduced to the division explained in the preceding paragraph. Privilegvwm purum is one which is granted without any contract, or any kind of mutual obligation. Hence it is practically a gracious privilege, altho it may, possibly, tend toward the notion of a remunerative privi- lege. Privilegium conventionale is founded upon reci- procal obligation. It will differ from an onerous privi- lege in this that it implies a public and explicit agree- ment. 7. Privileges can be absolute (absolutum), condi- tional (conditionale), or modal (modale). An absolute privilege is granted without any conditions. Thus, if the Holy Father should grant a priest the privilege of saying mass in a private oratory, without stipulating any condi- 22 Maroto, o.c., Le. Principles of Privilege According to the 35 Code of Canon Law tions, the grantee would enjoy an absolute privilege, and he could use his privilege even if it were convenient to celebrate mass in a church. A conditional privilege has effect only when the conditions under which the privilege was conceded are fulfilled. Therefore such a privilege cannot be used irrespective of the stipulations of the grant because the Superior’s consent is not obtained if the conditions are not fulfilled. The existence of a con- dition in a privilege, aside from its presence in the re- script, can often be learned from the object of the privi- lege. Thus a’ blind priest who enjoys the privilege of celebrating mass, cannot use this privilege if the assist- ance of another priest, or deacon cannot be obtained. A modal privilege concerns the manner in which the faculty conceded by the privilege may be exercised. Such a privilege is likewise restricted to the stipulations found in the rescript. In effect a modal privilege is practically the same as a conditional privilege. 8. Privileges can be divided according to the man- ner in which they were conceded. Thus privileges are called motu proprio, or ad mstantiam. The former is granted without any reference to a petition even if some favor had been requested of a Superior. A privilege conceded ad instantiam is given in compliance with a petition. Should no petition of any kind be made, it is clear that the privilege is granted motu proprio. But if some petition were directed to the proper Superior, the reseript will have to be examined in order to learn whether the grant is in compliance with the petition, or conceded independently of it. 9. The manner of acquisition furnishes another point of division of privileges. The various methods of obtaining a privilege will be treated at length in a later chapter. At present it is sufficient to mention that 23 Cf. ch. IV, 36 Principles of Privilege According to the Code of Canon Law according to this point of division, privileges are acquired by direct concession, communication, custom, and pres- cription. 10. Privileges can be written (scriptum), or non- written (non-scriptum). The former is obtained by means of a rescript: the latter may be acquired in three ways: (a) orally, as, for instance, in an audience with the Holy Father; (b) by custom, when the community acting as a unit fulfills the requirements of canons 20- 27;°* (c) by prescription, when an individual person obtains a right according to the provisions of law.” 11. Privileges can be temporary (temporale), or perpetual (perpetuum). A temporary privilege is con- fined to the limits of the time determined in the grant. This limit of time may be expressed in terms of months, or years, or even according to the number of cases. An individually personal privilege is always a temporary privilege, because at most it is limited to the life of the grantee. In other privileges, the phrase ad beneplacitum meum, or its equivalent, will indicate the temporary character of the privilege. A perpetual privilege is one which is conceded without limit of time. Corporal, and real privileges are of such a character, provided they adhere to a moral person, dignity, or thing of itself per- petual. According to canon 70 a privilege is perpetual unless the contrary is evident. Hence the limitation of time must be proved.*¢ 12. Finally, privileges can be private (privatum), or common (commune). A private privilege goes no far- ther than to consult the benefit accruing to an individual person. It matters little whether, in point of fact, several persons enjoy the same privilege as long as the privilege is concerned with the individual convenience, and not with the welfare of the persons considered as a unit. 24 Of. ch. IV. 25 Raus, o.c., le., ef. p. 66. 26 Maroto, o.c., Le, Principles of Privilege According to the 37 Code of Canon Law Therefore, an entire community may enjoy a private privilege. All that is necessary is that the accruing benefit be found directly in the members of the commu- nity. A common privilege, on the other hand, is granted for the common good. Such a privilege would be con- ceded to a community, a class of persons, or an assembly. ‘Che privilege is considered as directly affecting the asso- ciation rather than its members. Individual members of such an association receive the benefit of a common privilege, but in no way does the privilege become their individual right. Hence, individual members cannot re- nounce their association’s common privileges.77 Facul- ties of dispensation, and privileges of precedence vested in a community, or assembly are examples of a common privilege. SEA bs dey ee Fe CHAPTER IV ACQUISITION OF PRIVILEGES. The Code enumerates four ways in which a privi- lege can be acquired. These methods are direct con- cession, communication, custom and prescription. The latter two have much in common, but for the sake of clarity they will considered separately. Can. 63. § 1. Privilegia acquiri possunt non solum per directam concessionem competentis auctoritatis et per communicationem, sed etiam per legitimam consuetudi- nem aut praescriptionem. 1. Direct Concession of Privileges. Direct concession is the principal method of obtain- ing a privilege.t This concession is twofold. The legis- lator, or competent authority may accede to the peti- tion of one of his subjects, or he may confer the privilege entirely of his own volition, and for reasons known to himself. The former concession is known as ad instan- diam and the latter is called motu proprio. As observed above, the legislator is no wise obliged to commit his favors to writing.? Every concession has its source in the benevolent will of a Superior irrespective of the public disposition made of the concession. This is true even from the nature of the case but Corpus Iuris is not silent on the point. Paul II expressly states that concessions are made both orally and by document.’ 1 Ayrinhac, o.c., n. 157; Santi, il hi Iuris Canonici, (Ratis- bonae, 1886), lib. Vv; tit. XX XITI, 2 Cf. p. 18. 3 C. 3 de penitentiis et remissionibus, V, 9 in Extra, Com. [ 38 ] Principles of Privilege According to the 39 Code of Canon Law From this it does not follow that a privilege granted orally has the same probative force as one set down in a document.* Confirmation of a privilege is allied to concession. Altho confirmation differs from concession in this that it supposes a privilege to exist, while the latter produces the privilege, yet in some cases confirmation of a privi- lege is not more than a mere recognition of a former privilege. Should this obtain, confirmation leaves the privilege with all the defects it may possibly have. It would not validate them.® Such confirmation of a privi- lege is called in forma communi.® Another form of confirmation removes possible de- fects. This form is called in forma specialr." An exam- ination of the former privilege is presupposed in this form of confirmation. Practically it amounts to a new concession.® The extent of the confirmation accorded a privilege must be learned from the document. If the phrase ex certa scientia is present, the confirmation is in special form, because this phrase gives the same effect as if the legislator were to grant the concession entirely of his own will.® In order to have the same juridical effect, it is not absolutely necessary to use these words verbatim.?° In case of a doubt concerning the value of confirmation of a privilege, the common form must be understood.” The presumption is that the legislator has not changed 4 Cf, p. 136. 5 Amort, Elementa Iuris Canonici, (Ferrariae, 1763), lib. V, tit. XX XIII, § 22. 6 ©. 7, X, de confirmatione utili vel inutsl, IT, 30; ¢. 5, X, de con- cessione praebendae et ecclesiae non vacantis, III, 8; Suarez, o.c., lib. VIII, c. 18, n. 3-4, 8; Sanguineti, o.c., n. 140. 7 ©. 8, X, de confirmatione utili vel inutilt, II, 30; Suarez, o.c., lib. VIII, c. 18, n. 5; Sanguineti, o.c., Le. 8 Suarez,o.0,,. ub. VIII, c. 18, n. 12. 9 Barbosa, Tractatus Varwt, (Lugduni, 1660), De Clausulis Usufrequen- tiortbus, claus. LIX. 10 Suarez, o.c., lib. VIII, c. 18, n. 6. 11 Sanguineti, o.c., l.c, 40 Principles of Privilege According to the Code of Canon Law his will. Consequently, possible revocation of a privi- lege in the past, all its defects, and restrictions remain in force unless the document embodying the confirmation of the privilege clearly shows that it has been granted ex certa scientia. Innovation, or renewal (innovatio) of a privilege is almost the same as confirmation of a privilege. Either the document or the precise favor can be renewed.’? One can be renewed without the other.** Renewal of the document will not be of great importance except in rela- tion to proving a privilege. But renewal of the favor contained in the document enjoys some importance. This importance arises from the root-meaning of the word unnovatro and its actual juridical usage. HKtymologically, ‘‘to renew’? means to give back, to restore, to return. Hence to renew a privilege would also mean a restora- tion of revoked privileges. But, save for the phrase ex certa scientia, this is not the fact. Renewal of a privilege merely confirms the privileges which have not been revoked."* Renewal of a privilege can be in common or in special form. In the first instance, privileges remain in the same state as they were before renewal, while in the second ease defects are removed. Since privileges are very often conceded in the form of a rescript, it will be well to bear in mind a few funda- mental notions concerning a rescript itself.» . The Roman emporers were often asked for an inter- pretation of a law. Their answer was known as rescrip- tum. Hence the word means a written answer to a peti- tion. But since the answer came from one who had authority, the formal meaning of rescript is: a written 12 Reiffenstuel, o0.c., lib. V, tit. XXXIII, n. 76. | 13 Suarez, o.c., lib. VIII, ¢. 20, n. 4. 14 Suarez, o.c., lib. VIII, ¢. 20, n. 1; Reiffenstuel, o.c., lib. V, tit. XXXII, n. 74. 15 Maroto, o.c., V. I, n. 271. Principles of Privilege According to the 41 Code of Canon Law answer gwen by a prince, or by one in authority..® The word rescriptum was taken up by the Roman Pontiffs. Wernz’ points out that even before the time of Pope Siricius the word was in use. The word continued in favor, and from the time of Alexander III (1159-1180) we find many responses or rescripta. Bernard of Pavia wrote the first commentary on rescripts, and two centu- ries later the whole theory of rescripts and their use were perfected by the Rules of Apostolic Chancery. Finally with some change, especially concerning the sub- ject of a rescript, the same title is found in the Code of Canon Law. During the law of the Decretals, anyone could ask for a rescript unless he were (a) a false or recalled procurator, (b) a heretic or schismatic, (ec) an excom- municate.’® Only the major excommunication was con- sidered and this, too, in causes not connected with the same excommunication. An excommunicated person could file a petition in his own defense. On September 9, 1898, the Sacred Penitentiary said that reseripts of oc- cult excommunicates were valid in the internal forum, provided they consisted of minor favors such as blessing rosaries, ete.*? Pius X in his constitution Sapient: Con- silio made no exceptions unless a person were excom- municated by name, or suspended a divinis by the Holy See.*? The Code is even more generous. None at all are excepted: but the condition of excommunication, sus- pension, or personal interdict must be mentioned in the petition for a rescript.” Besides acceding to the petition of one of his sub- jects, the legislator can grant a privilege motu proprio. 16 Maroto, o.c., l.c. 17 Wernz, o.c., v. I, n. 149. 18 Can. 36-62. 19 C, 1, de rescriptis, I, 3 in VI. 20 In Wernz, o.c., v. I, n. 151, ft. 30. 2T AAS. v. I, p. 64. 22 Can. 36; 2265, §2; 2275, n. 2; 2283, 42 Principles of Privilege According to the Code of Canon Law A concession of this kind is one in which the Superior is actuated by motives of his own, independently of any petition. Such independent action does not signify that in no way at all was the matter brought to the Su- perior’s attention, but it does mean that the favor was granted without reference to the petition, or for reasons other than the ones mentioned in the petition. In a word, in cases where some petition was made, the final cause is the legislator’s will, and not the petition. A privilege granted motu proprio validates a sub- reption (subreptio) or a suppression of truth, but it does not validate the proposal of a false cause, provided this cause were the only one mentioned.** The reason is that the suppression of truth may render the privilege indis- ereet while the proposal of a false cause vitiates the benevolent will of the Superior.” While it is true that the phrase motu proprio will validate a subreption, it must be borne in mind that this subreption must not be intrinsic, that is, it must not pertain to the inability of the subject who requests the favor. If the subreption were intrinsic, the privilege would not be valid,” unless a derogatory clause were added. Similarly resecripts, even if granted motu proprio, cannot be sustained if the grant is contrary to legitimate custom, or a particular statute, or the rights of a third person. Derogatory clauses, however, can remove this disability.”7 23 Palao, o.c., tr. 3, disp. 4, p. 2, §6, n. 1. 24 Can, 45. 25 Palao, o.c., l.c., n. 3. 26 Palao, o.c., l.c., n. 7; Barbosa, o.c., claus. LXXIX. 27 Can. 46. Principles of Privilege According to the 43 Code of Canon Law 2. Communication of Privileges. A. Development and History of Communication of Privileges. Strictly speaking, the method of obtaining privileges by communication, pertained to religious Orders. But the word ‘‘communicatio’’ was used also in other con- cessions of privileges. Thus Urban VIII in his consti- tution, Quonam divinae, June 1, 1627, communicated the privileges of the Roman schools to the new German Col- lege in Prague.?® On the same day the Pope communi- eated the same privileges to the new German College in Vienna.”? This form of communication of privileges was known as ad wstar. The possibility of such a privilege is clear from the consideration of the real cause of a privilege. The will of the legislator is the basis upon which all privileges rest. As far as validity is concerned, it matters little whether the terms of the privilege be defined in so many words, or conceded according to the favors of another erant. Innocent IV, while not using the term ad instar clearly refers to this kind of a privilege when he dis- cusses the privileges of the students in Rome.*° A privilege ad instar was a norm according to which a later privilege was patterned. The second was an imi- tation of the first privilege, and it included all the favors which had been originally granted.*? As long as the first concession remained the same, no difficulty in under- standing the second privilege presented itself. But what if the initial concession were augmented? Did the second 28 Bull. Rom. tom. 13, p. 551. 29 Bull. Rom. tom. 13, p. 556. 30 C, 2, de prwilegiis et excessibus privilegiatorum, V, 7 in VI; Volumus et statuimus, ut studentes im scholis ipsis penes sedem eandem talibus privilegiis omnino, libertatibus et immunitatibus gaudeant, quibus gaudent studentes in scholis, ubt generale regitur studium, . ac recipiant integre proventus suos ecclesiasticos sicut ill. 81 Suarez, o.c., lib. VITI, c. 15, n. 2. 44. Principles of Privilege According to the Code of Canon Law privilege likewise receive this increase? To give an an- swer to these questions, it must be remembered that the second privilege is an imitation of the first, not merely as a model but with all its qualifications.** The aspect of model would appear in such a concession: We grant you a privilege as Paul enjoys. The aspect of qualifica- tion would be: We grant you Paul’s privilege. From this it can be seen that only the external imitation is present in the first instance, while an intrinsic note is found in the second. Now this imitation exists primarily at the time when the second concession is made. From then on the two privileges are distinct, and bear relation to each other only in similitude. Both are self-existent and independent. Therefore what would accrue to the first would not benefit the second, and vice versa.*? But if the first privilege were invalid, no privilege at all would be conceded to the second grantee because the foundation for the concession would be lacking. Mani- festly, should something be granted after the fashion of another privilege, but the latter be actually without val- idity, the former would be similarly invalid.** Communication of privileges among the Orders was reserved for the reign of Leo X. Before that time and even before the beginning of sixteenth century instances of communication are at hand, but it was not the same rule that Leo X inaugurated. Sixtus IV in his constitu- tion, Sedis Apostolica, May 27, 1474, communicated the privileges of the Mendicants to the Congregation of Saint Francis of Paul.** Alexander VI, in his constitution, Ad ea, May 1, 1501 likewise communicated privileges to the Minims.** A few years later, June 17, 1508, Julius II, in his constitution, Htst, communicated the privileges 83 Suarez, o.c., lib. VIII, c. 15, n. 3-5. 34 Suarez, o.c., lib. VIII, c. 15, n. 6. 35 Bull. Rom. tom. 5, p. 213. 86 Bull, Rom. tom. 5, p. 381. 32 Palao, o.c., tr. 3, disp. 4, p. 2, §8, n. 4 3 n Principles of Privilege According to the 45 Code of Canon Law of the Mendicants to the Augustinians.** While these grants were called communication of privileges, they did not allow for a general exchange of privileges. The principle of general exchange of privileges among the mendicant Orders was promulgated by Pope Leo X in his constitution, Dudwm, December 10, 1519. The Pope writes: Nos ad singulos Ordines******** motu proprio et ex mera nostra scientia et liberalitate, de apostolicae auctoritatis plentudine communicavimus. Illaque omma et singula mter dictorum Ordinum per- sonas, pariformiter communia fursse et esse volumus, prout in singulis litteris praedictis plenius continetur.*® ‘The Orders named in this constitution are: Praedica- tores, Minores, Kremitae 8S. Augustini, Carmelitae, Servi Beatae Mariae Virginis, and Minores fratres. With this principle in force it was only a question of time before all Orders, whether mendicant or not, would exchange their privileges. Cognizant of the self-sacri- ficing and heroic work of all Orders, Pius V granted all of them equal consideration in the matter of concessions. Consequently, in his constitution of August 16, 1567, Ea supernae, Pius V laid down the more ample rule that all Orders henceforth would communicate their privi- leges.*® In a later constitution, Romani Pontificis, June 30, 1570, Pius V made a reservation concerning the com- munication of privileges. This reservation was that privileges refering to temporalities would not be com- municated.*° This, of course, was eminently just, since the extreme poverty of the Mendicants did not obtain in the non-Mendicant Orders. The latter could more easily afford contributions and assessments. Therefore, unless the non-Mendicant Orders were individually exempted 37 Bull. Rom. tom. 5, p. 421. 38 Bull. Rom. tom. 5, p. 732. 39 Bull. Rom. tom. 7, p. 586. 40 Bull. Rom. tom. 7, p. 837. 46 Principles of Privilege According to the Code of Canon Law from these payments, they enjoyed no privilege in this matter. The word ‘“‘communication’? now had a new and a definite meaning. It meant that when one Order received a privilege, all the other Orders were by that very fact similarly privileged. Still the former use of the word was retained. Urban VIII employed it when he con- ceded the indults of the Congregation of Saint John of God to the Mendicant Orders.** Clement VII did not amplify the concessions of his predecessors. In his constitutions he specifies the limits of the communication conceded. Thus he communicated the privileges of Conventuals and Camaldulese monks to the Cappuchins,*® and the privileges of the monks of Saint Augustine to the Jeswti Fratres of Saint Jerome.* In communication of privileges, favors relating to Prelates were communicated to Prelates, convents to con- vents, feaists to feasts, ete. Julius IT in his letter of June 1, 1509, to the Bishop of Cordova made this stipulation. Latter-day communication of privileges retained this or- der. But personal privileges of individual religious were in no wise communicated to their associates in religion.*® Similarly privileges conceded to a church or to an altar in honor of a certain saint were not subject to communi- eation.*® Thus the Portiuneula indulgence, while com- municated to the churches of the Franciscan Order, did not obtain in the churches of the other Orders. In conceding communication of privileges, the Su- preme Pontiffs presupposed that the new privileges would not interfere with the regular observance of the rule existing in each Order. The reason for this is evi- dent: the Pope intends to foster religion and not to 41 Bull. Rom. tom. 13, p. 169. 42 Bull. Rom. tom. 6, p. 113. 43 Bull. Rom. tom. 6, p. 158. 44 In Reiffenstuel, o.c., lib. V, tit. XXXIII, n. 59. 45 Reiffenstuel, o.c., lib. V. tit. XXXITT, n. "60. 46 Reiffenstuel, o.¢., lib. V, tit. XX XIII, n. 62. Principles of Privilege According to the 47 Code of Canon Law weaken it in any way. Thus since it would have been against the rule of some Orders that members of the Or- der should act as witnesses in court, this item of the rule prevented them from participating in the privilege of giving testimony conceded to the military Orders.* Before discussing the present terminology relative to communication of privileges, it is well to see what expressions were used by earlier canonists, and how these expressions can be blended to present day legislation. Palao*® mentions three ways of communication of privileges. The first is by aggregation, or by extension of the same privilege. No new concession is made, but more subjects are brought within the scope of one and the same privilege. The second manner obtains in in- cluding secondary persons in a privilege made to the principal grantee. In both of these instances the acces- sory follows the principal privilege. Therefore the ac- cessory privilege increases, or decreases according to the fortunes of the principal privilege. The third method amounts really to a new concession of privilege, and is independent of the fortunes of the first privilege. Palao adds that the Jesuits could not use their own privileges, or the ones communicated to them unless the communi- cation came thru the General of the Society. This was due to the Jesuit constitutions which make the entire government depend on the General. Other religious bodies were not similarly restricted. Schmalzgrueber*® says there are two ways to receive privileges by communication, but his ideas are really the same as those of Palao. The first method is by extension, or aggregation. This method implies that the extended grants follow the fortunes of the original privilege. The other method ad instar is twofold: first dependently on the initial privilege and similarly affected; second inde- 47 Schmalzgrueber, o.c., lib. V, tit. XXXITI, n. 88. 48 Palao, o.c., tr. 3, disp. 4, p. 2, §9, n. 1-5. 49 Schmalzgrueber, o.c., lib. V, tit. XXXIIT, n. 77-79. 48 Principles of Privilege According to the Code of Canon Law pendently of the first privilege so that it retains all its force without reference to the fortunes of the first privi- lege. The modern way of division by communication is in forma aeque principali, and formai accessoria. Privi- leges of the first class are independent, those of the sec- ond are not. In this way Maroto, following the Code, joins the aggregations and extensions of Palao and Schmalzgrueber in one group, and leaves the ad wmstar privileges in a separate class.”° B. Present Legislation concerning the Communication of Privileges. Can. 64. Per communicationem privilegiorum, etiam in forma aeque principali, ea tantum privilegia impertita censentur, quae directe, perpetuo et sine relatione ad cer- tum locum aut rem aut personam concessa fuerant primo privilegiario, habita etiam ratione capacitatis subiecti, cui fit communicatio. | Canon 64 lays down the present law concerning com- munication of privileges even in forma aeque principali. Four items must be kept in mind: manner of concession, stability of the privilege, extent, and capacity. Directe. A privilege is conceded directly when the beneficiary, whether a moral or physical person, is the immediate object of the Superior’s good will. For in- stance, if an institute asks the Holy Father for the privi- lege of saying a proper mass in honor of some mystery or saint, the concession of this favor would be direct. In order to have the entire institute benefit by this concession, the extent of the grant must be well defined. This is no new provision, for even in the time of Urban VIIT a constitution of the Pope was necessary to extend the feast of Blessed Margaret of Cortona, now 50 Maroto, o.c., v. I, n. 298. Principles of Privilege According to the 49 Code of Canon Law canonized, to the entire Order of Saint Francis. Until December 13, 1623, this feast was confined to the city of Cortona. The constitution Caelestis aquae extended the feast.”? Now, suppose a Congregation petitioned the Holy Father to communicate the privileges of the Franciscans to it. Should the Pope accede to the request, the privi- leged Congregation could then celebrate the feast of Saint Margaret. If then a second institute were granted com- munication of the privileges enjoyed by the Congrega- tion just mentioned, the feast of Saint Margaret would not be communicated because the Congregation did not receive it directly. Another case: a society is joined to an archconfra- ternity according to the provisions of canons 720-723. According to canon 722 only those privileges would be communicated which had been the object of direct con- cession by the Holy See. Should some privileges have been conceded to the archeconfraternity by means of com- munication, the same privilege would not accrue to the aggregated society.” , In the same manner that communicated privileges eannot themselves be subject to further communication, so, too, privileges which arise from custom, or prescrip- tion are not subject to communication. Hence, if a so- ciety by constant use thru the prescribed number of years” obtains a privilege, the favor indeed is valid be- fore the law, but, it is not liable to communication. Sim- ilarly should an individual person legitimately prescribe a privilege, it is valid but it does not become the source of communication. Perpetuo. This word excludes all favors granted for a limited time. Consequently all quinquennial, or decennial privileges are excluded from communication. 51 Bull. Rom. tom. 13, p. 80. 52 Vermeersch-Creusen, o.c., v. I, n. 713. 53 Can. 27, §1. 50 Principles of Privilege According to the Code of Canon Law But in order that the concession might be permanent, it is not necessary that this precise word be found in the rescript. Barbosa mentions several of similar force: in infinitum, semper, in saecula saeculorum, ete.” Sine relatione. Relatively likewise excludes com- munication. The reason is evident and flows from the object of the privilege. If a privilege were granted to honor the tomb of a particular saint, or a miraculous picture, no foundation would exist for the communicated privilege. Thus, the proper masses conceded to religious were not communicated.” Capacitas. The three requisites named above con- sidered privileges from the aspect of the grant itself. The fourth requisite, however, considers the capacity of the grantee to receive a definite privilege. Incapacity can arise from several sources. Thus, for example, religious women are incapable of receiving privileges relative to the exercise of Sacred Orders. Again the rule of a society may forbid some activity, e. g., acquisition of property. No matter how the incapa- city of the grantee exists, he cannot enjoy privileges which might be communicated to him. Privileges communicated in forma aeque principali retain their full force irrespective of the possible in- crease, decrease, or loss of the original privileges. Reli- gious Orders ehioned this form of communication until the time of the New Code.** 54 Barbosa, 0.c., Dictiones Usufrequentiores, CCLIV, CLXIII. 55 §. C. R., 20 Mar., 1706, Coll. n. 269. 56 Noldin, Theologia Moralis, (Oeniponte, 1921), 13 ed., v. I, n. 194. Principles of Privilege According to the o1 Code of Canon Law Can. 65. Cum privilegia acquiruntur per communi- cationem in forma accessoria, augentur, imminuuntur, vel amittuntur ipso facto, si forte augeantur, imminuan- tur, vel cessent in principali privilegiario; secus si acquir- untur per communicationem in forma aeque principali. ' Assuming the four requisites outlined above for the communication of privileges, a further restriction is placed on communication in forma accessoria. Acces- sorium has reference only to the privilege. It does not consider the dignity of the person who benefits by this method of communication. It may occur that the second grantee may be even more worthy of a privilege that the first, yet nevertheless, should the first grantee lose his privilege, the second grantee would likewise lose his privilege. | The present legislation clarifies the former legisla- tion.’ Whatever happens to the original grant, whether it increases, or decreases, or ceases, the accessory privi- lege is similarly affected.°*8 Privileges and indulgences accruing to aggregated societies come under this head.*® The Sacred Congregation of Indulgences decided the question of indulgences on January 31, 1893. The ques- tion was asked whether indulgences revoked by the Pope could nevertheless be enjoyed by those to whom these indulgences had been communicated, unless there were express mention of revocation. The answer was: neg- ative immo falsa. Nuns with their novices receive communicated privi- 57 Cf. Palao, o.c., tr. 8, disp. 4, p. 2, 9, n. 1-5; Schmalzgrueber, o.c., HOV tiie eA LLL, ny 77-79. 58 Augustine, A Commentary on the New Code of Canon Law, (St. Louis, 1921) 4 ed., v. I, p. 158. 59 Blat, Commentarium in Textum Codicis Iurts Canonici, (Romae, 1921), He ove Lene las. 60 ASS. v. XXV, p. 508. 61 C, 613, § 2; ¢, 567, § 1. 52 Principles of Privilege According to the Code of Canon Law leges in forma accessoria.’ Their servants also are in- cluded.” Religious of simple vows do not receive communica- tion of privileges, but enjoy only those privileges which are received by formal concession.” C. The present Value of Privileges obtained before the Code by the communication of Privileges. In regard to communication of privileges it must be kept in mind precisely what kind of communication is forbidden by the terms of the entire canon 613.% Altho it may be said that a general principle embodying total exclusion of communication of privileges among the reli- gious is enunciated in the first paragraph of canon 613, then, obviously, an exception is made in the second para- graph of the same canon. : In the case of nuns, communication of privileges un forma accessoria still exists. Practically speaking, the revocation of communication of privileges among the religious is confined to communication in forma aeque principal, The authors who have commented on canon 613, § 1, do not agree on the interpretation of the new law. In order to set forth clearly the matter for discussion, let us see what is admitted. All agree that as a practical rule, the first paragraph of canon 613 refers to commu- . nication of privileges wm forma aeque principali. Then all agree that this form of communication is forbidden in the future. At this point unanimity ceases. Authors 62 Cocchi, Commentarium in Codicem Iuris Canonici, (Taurinorum Augus- tae, 1921), v. I, n. 117; Noldin, o.c., v. I, n. 194 63 Augustine, o.c., v. III, p. 511. Can. 613, $1. Quaelibet religio iis tantum privilegiis gaudet, quae vel hoc in Codice continentur, vel a Sede Apostolica directe eidem con- cessa fuerint, exclusa in posterwm qualibet communicatione. 2. Privi- legia quibus gaudet Ordo regularis, competunt quoque monialibus evusdem Ordinis, quatenus eorum sint capaces. } Principles of Privilege According to the 53 Code of Canon Law disagree on the present value of privileges obtained in the past by communication. The question is important and the opposing sides, at least in their practical con- clusions are well defined. Prummer,® for instance, argues that these privileges are still valid. His reasons are: (a) one hundred years, or immemorial possession induces the presumption that a privilege was granted; (b) all privileges not expressly revoked remain in force according to canon 4; (c) the word fuerimt in canon 613, $1, refers to the future: this word is to be understood with in posterum. Vermeersch™ bases his argument on the requisite of canon 4. This canon demands express revocation. Vermeersch holds that privileges obtained in the past by communication are still valid because canon 613, $1 can be interpreted in this way. At least express revoca- tion is not evident. Besides this basic argument, Ver- meersch maintains that a strict literal interpretation of the first paragraph of canon 613 would be foreign to the mind of the legislator as the Orders have enjoyed centuries of use of some of these privileges. A prac- tical reason also influences Vermeersch. He says serious doubts would arise in regard to all privileges of religious since it would be difficult to distinguish how the privi- leges had been obtained. Lastly Vermeersch says that the lenient interpretation is received in Rome. Brandys® argues in the same way as Vermeersch, allowing privileges communicated in the past to con- tinue. Fanfani® rests his case on canon 4. According to 65 Prummer, Manuale Iuris Canonici, (Friburgi Briscoviae, 1920), 2 ed., pracnotamen ad q. 239. 66 Can. 4. Jura aliis quaesita, ttemque privilegia atque indulta quae, ab Apostolica Sede ad haec usque tempora personis sive physicis sive moralibus concessa, in usu adhuc sunt nec revocata, integra manent, nist hutus Codicis canonibus expresse revocentur. 67 Vermeersch-Creusen, o.c., v. I, n. 615. 68 Brandys, Kirchliches Rechtsbuch, (Paderborn, 1920), 2 ed., n. 89. 69 Fanfani, De Iure Religiosorum, (Taurini-Romae, 1925), 2 ed., p. 362. 4, Principles of Privilege According to the Code of Canon Law Fanfani, the question cannot be solved from the wording of canon 613, § 1. Consequently canon 4 is to be applied. Finally, in dubiis melior est conditio possidentis. Papi,’ Woywod,” and Schaefer” bring no new argu- ment. They satisfy themselves by comparing canons 4 and 613, § 1. Augustine” states that the law in question is not retroactive, and hence the Orders may retain what they possess except where the Code rules otherwise. Larraona, in the periodical Commentarium pro Relt- giosis™ inclines to the same lenient interpretation of the new law on the communication of privileges among the religious. On the other hand Blat” takes sharp issue with the contentions of the above authors. The word tantum decides the issue. This expression has a taxative mean- ing. It includes only the items mentioned. HKverything else is excluded. Blat cites Barbosa for the juridical force of the word tantum. Now, according to canon 613, § 1, each religion (quaelibet religio) enjoys only those privileges contained in the Code, or directly conceded by the Holy See. All communication, then, according to this paragraph, is excluded for religious. The clause exclusa in posterum qualibet communcatione is to be taken with the word tantum. Hence even communication im forma accessoria is eliminated in principle. This form, however, is immediately conceded to nuns relative to privilege existing in the same Order. Fuhrich is just as emphatic for the clause wis tantum privilegis gaudet."®© Of the same opinion are Chelodi,” 70 Papi, Religious in Church Law, (New York, 1924), p. 263. 71 Woywod, A Practical Commentary on the Code of Canon Law, (New York, 1925), v. I, n. 48, 529. 72 Schaefer, Das Ordensrecht, (Munster, 1923), p. 271. 73 Augustine, o.c., v. III, p. 333-4. 74 Commentartum pro Religiosis, v. III, p. 205-214. 75 Blat, o.c., v. II, n. 689. 76 Fuhrich, De Religiosis, (Oeniponte, 1919), n. 145, i Chelodi, Ius de Personis, (Tridenti, 1922), n, 280, Principles of Privilege According to the 55 Code of Canon Law Leitner,” Cicognani,” Hgger,®° and Il Momtore Eccle- stastico.® Which is the correct interpretation of canon 613, § 1? An analysis of the wording of the canon seems to favor the same conclusion which Blat proposes. Before the Code communication was recognized as a legitimate source of privilege. In the present legislation for reli- gious it is not numbered among the only two sources recognized. Hence at least from its positive exclusion, communication of privileges for religious must be re- garded as revoked. The present tense of the verb gaudet means that any privilege not valid at the time of the Code is abolished. The arguments contrary to this opinion can prac- tically be reduced to five: (1) the alleged omission to revoke expressly; (2) Possession of one hundred years induces the presumption that a privilege was granted; (3) Revocation of communicated privileges would be foreign to the mind of the legislator; (4) The law of canon 618, § 1 is not retroactive; (5) The verb concessa fuerint is future time. These arguments do not seem to be convincing. But in order that due consideration may be accorded them, each one will be examined separately. (1) Canon 4 demands express revocation in order that a privilege contrary to the present law may cease. It does not, however, determine what formula, if any, must be used. Express revocation means explicit revo- cation. This can be had either by the use of the custom- ary formula revocato privilegio,” or by the positive ex- clusion of an item when, to obtain force, it would have 78 Leitner, Handbuch des katholischen Kirchenrechts, (Regensburg, 1922), 2 ed. v. IIT, $3, n. 8, 1, 2. 79 Cicognani, o.c., p. 279. 80 Egger, Das neue Ordensrecht, (Freiburg, 1919), p. 23. 81 Tl Monitore Ecclestastico, anno 1918, p. 194, 366-7. 82 E.g., 519; 522; 1576, $1. 56 Principles of Privilege According to the Code of Canon Law to be mentioned.®* Obviously, the usual formula given above is not employed in canon 613, § 1. But explicit revocation is obtained by the positive exclusion of com- munication as a source of privilege.“ The use of the present tense (gaudet) specifies the time when the privi- leges of religious are valid.®* When three methods of obtaining privileges are possible and only two are allowed, it follows that the third is forbidden. For this reason it seems that canon 4 gives small comfort towards retaining such privileges. Privileges obtained in the past thru communication seem to be revoked by the clause vel a Sede Apdstolica directe eidem concessa fuerimt. Communicated privileges were never directly obtained from the Holy See. (2) Canon 63, § 2 gives the rule for presumed privi- leges. A presumption is a probable conjecture of some- thing uncertain. It is called an improper proof.8® When the truth is known, the presumption yields to it. No matter how long the presumption may last, it is always subject to this “reversal. Its nature does not change. Granting, for a moment, that communicated privileges can be considered as presumed privileges, their status would not be the same as privileges obtained by con- cession. Therefore, if a decision be made, such as is found in canon 613, § 1, it is evident that the presumption is destroyed, and with it the privilege presumed to have been granted. But the assumption that communicated privileges can be presumed as conceded privileges is not true. The privileges obtained thru communication were not used with the intention of introducing a custom, but on the contrary, were used as privileges directly con- eeded to others.* 83 K.g., Necessary quasi-domicile is excluded by canon 93. 84 Chelodi, o.c., n. 280. 85 Leituer, 0.¢., le. 86 Noval, De Iudiciis, (Augustae Taurinorum, 1920), n. 959. 87 Fuhrich, 0.¢., N. 145 }. Principles of Privilege According to the 57 Code of Canon Law (3) When an argument deals with what may be for- eign to the mind of the legislator, frequently no sure or decisive matter is at hand. Reasons of convenience will always be present, and for both sides of a question. What may appear proper to one will seem improper to another. At any rate, nothing more could be obtained from such an argument than a reason similar to epikeza, which interpretation always supposes the law to exist, and to consult the majority of cases. However, epekeia is inadmissible here because of the definite legislation. Granted, as Vermeersch says, that the new legislation would deprive the Orders of privileges used for centu- ries :°8 this would not affect a positive law evidently made to limit the number of privileges. A precedent is found in the Bull of Pius IV, In principis, which revoked all . privileges contrary to the decrees of the Council of Trent.®? This Council ushered in a new epoch. To fur- ther the common observance of its decrees, privileges contrary to the decrees were revoked. The present Code begins a new canonical epoch, and the same reason holds today as for centuries ago. The common law is to be observed unless legitimate exceptions are made. (4) Retroactivity of laws is not presumed.*? The common good demands that rights acquired in the past be left undisturbed unless some special reason decree otherwise.*? Augustine’s argument from the non-retro- active force of the law in canon 613, § 1 would be valid if there would be a possibility of considering retroactiv- ity in connection with this canon. But Augustine mis- applies the notion of retroactivity. There is no question of retroactivity, or non-retroactivity in canon 613, §$ 1. The validity of acts performed in the past by reason of communicated privileges is not touched at all by the legis- 88 Vermeersch-Creusen, o.c., v. I, n. 615. 89 Conc. Trident. Bulla 8.D.N.D.Pii Papae quarti, February 24, 1565, 90 Can. 10. 91 Vermeersch-Creusen, 0.c., v. I, n. 44, 58 Principles of Privilege According to the Code of Canon Law lation of the New Code. The present right is removed by canon 613, § 1. This follows from the exclusion of communication as a source of privilege for religious. (5) The argument from the tense and mood of the verb concessa fuerint offers some difficulty. If this is the perfect subjunctive form, implying potentiality® a doubt can arise concerning the revocation of privileges communicated before the Code. But it seems that this idea of potentiality can hardly exist with the collocation of words in the last clause of the paragraph eaxclusa in posterum qualibet communcatione. This clause taken with the present tense of the principal verb gaudet elim- inates all manner of communication. In the very next paragraph the Code makes an exception to the rule. In order to have the last clause of the first paragraph con- strued with the possibly potential meaning of concessa fuerint, it would aoe to read exclusa qualibet m poste- rum communicatione. The authorized Site version of the canons con- cerning religious leaves little doubt that potentiality is not the implication of concessa fuermt.®* While this Kinglish translation has not the force of law, it does afford a confirmatory argument for the strict interpre- tation of the canon in question. Canon 613, § 1 reads: East Institute enjoys those privileges only which are contained in the Code, or may have been directly con- ceded to it by the Apostolic See; every communication of privileges 1s henceforth excluded. In conclusion, altho the wording of canon 613, $1 seems to exclude a lenient interpretation, yet something must be said for the extrinsic authority of the authors who hold this opinion. The list of authors arrayed on the side of the lenient opinion is not insignificant, and 92 Commentarium pro Religiosts, v. III, p. 212. 93 Chelodi, o0.c., n. 280, p. 438, ft. 1. 94 Canonical Legislation concerning Religious; authorized nous Trans- lation, (Rome, 1919). ee on Principles of Privilege According to the 59 Code of Canon Law it would be too much to maintain that no extrinsic author- ity at all attaches to their opinion. Hence an author- itative interpretation of this canon by the Pontifical Commission will be welcomed. Meanwhile, in practice, the reliable Momtore Ecclesiastico says: We know that the application of canon 613 is suspended until the Sacred Congregation for Religious finishes its work of revising the privileges of the various religious Institutes.*° The reliability of the Monitore Ecclesiastico cannot be gain- said. Yet it is not beyond a legitimate desire to wish that the source of this information had been made public. 3. Custom as a Source of Privilege. The Code recognizes custom as a source of privi- lege. Considered in its formal aspect, custom may be defined with Bouix as Ius per similiwm alicuius communi- tatis actuum frequentiam acqusitum;®® or with Wernz as ius quod ex facto sive frequentia illa operandi resul- tat." The tacit consent of the legislator is sufficient to obtain a right thru custom. Hence every custom which has the express disapproval of the legislator cannot con- tinue to exist to engender rights.°* The Code specifies e. g., rubrics, profession of faith as some of the canons under which customs are expressly disapproved.” Cus- toms which exist contrary to these prescriptions have no force whatever. Custom itself is twofold: (a) the frequency of similar acts; (b) the right which results from this repetition.” The former is the material cause of the latter. The 95 Il Monttore Ecclesiastico, anno 1918, p. 366, ft. 96 Bouix, De Principiis Iuris Canonici, (Parisiis, 1882), p. 351. 87 Wernz, o.c., v. I, n. 187. : nit 98 Barbosa, o.c., Tractatus locorwum communwwm argumentorum wits, n, XXV. 99 BE. g., ec. 343, § 2; 346; 396; 403; 409, §2; 418, §1; 455, §1; 460, $2; 774, §1; 818; 978, §3; 1006, $5; 1041, 1056, 1181; 1356, $1; 1408; 1492; 1525; 1576, $1. 100 Bouix, o.c., p. 350-1, 60 Principles of Privilege According to the Code of Canon Law activity on the part of the community must be free, else no custom, no matter how long it exists, ean be valid. In the formation of Roman Law customs or mores were of prime importance. Divorce, for example, was restricted by custom and gradually some of these cus- toms became incorporated in the written law.’ Justinian’ gives the foundation for the definition of custom. He says: sine scripto ws ventt quod usus approbavit, nam diuturni mores consensu utentium com- probati, leges imitantur. In this statement the material and formal elements of custom are brought together. From this citation it seems to be evident that Justinian admitted the force of custom but some doubt is thrown on the value of the citation by a constitution of Constan- tine. This reads: consuetudines ususque longaevi non vuis auctoritatis est: verum non usque adeo sua valiturt momento ut rationem vincat aut legem” Ferrini after showing the relative importance of custom, reconciles these two texts by saying that Constantine’s constitution referred to customs existing before laws which rearranged the matter in question.’ Ferrini believes that another section of Justinian law represents a points of the same Constantinian law.’ If so, the matter becomes clear, for the constitution was given even in regard to those who claimed immunity from certain public duties. Gratian defined custom thus: zus quoddam moribus imstitutum quod pro lege suscipitur cum deficit lea.t’ Prummer™ thinks this definition is solid because a law can be deficient in clarity, in extension, or in utility. 101 Bonfante, Storia di Diritto Romano, p. 215, 291. 102 TJ, 1, 2, 9. 103 In Maroto, o.c., n, 251. 104 Ferrini, Pandetti, n. 17, 105 C. 1, 11, 65, (64). 106 C, 5, D. I. 107 Prummer, Manuale Theologiae Moralis, (Friburgi Briscoviae, 1923), W; ol, ATL elds Principles of Privilege According to the 61 Code of Canon Law DeAngelis’® is not so kind to Gratian’s definition because it seems to apply only to customs beyond the law, with a possibility of extending the definition to customs con- trary to the law. But it certainly does not allow for eustoms according to the law. In one place Gratian denies the validity of a parti- cular custom contrary to the law,’”? and in another place admits that a custom can abrogate laws and canons.?!° Alexander III acknowledged the force of custom,™! and Gregory IX canonized the doctrine that a custom can abrogate a law.’ The question of custom is not an easy one. In the universal Church much more certitude concerning the value of a custom can be obtained than in a particular diocese or church. At times it will be difficult to deter- mine whether or not a custom has any value. In sucha predicament Cardenas'*® lays down two rules which should give some assurance either in favor of the cus- tom, or against it. Cardenas says: (1) if all the people in a diocese are morally certain that a custom originated from a legitimate cause, the custom has legal value. Tradition of the custom could have been handed to suc- ceeding generations until the original time of introduc- tion would be forgotten. The consensus of practically all the people is full proof. (2) If this universal belief is not present, the custom is doubtful since full proof in testimony of a fact cannot be had. However, if the dis- senting portion of the community is negligible, or un- 108 De Angelis, Praelectiones Iwris Canonict, (Romae, 1877), lib. I, tit. IV, ade 109 C, 4, D.XI, dictum: Cum vero nec sacris canonibus, nec humanis legibus consuetudo obviare monstratur, inconcussa servanda est. 110 C, 3, D.IV, dictum: Sicut enim moribus utentiwm in contrartum non- nullae leges hodie abrogatae sunt, ita moribus utentwm ipsae leges confirmantur. 111 ©, 8, X, de sententia et re iudicata, II, 27. 112 C, 11, oe de consuetudine, I, 4; Vecchiotti, oe, Lib al. cL, Saks 113 Cardenas, Crisis Theologica, (Venetiis, 1700), disp. XXIII, ce. V, art. 13-14, 62 Principles of Privilege According to the Code of Canon Law worthy of belief, it can be brushed aside and the custom considered legitimate. Particular legislation concerning a privilege intro- duced by custom, will at times be a delicate matter. For example, should a custom contrary to the general law of the Church exist in a diocese it may be difficult, if not impossible to eradicate it. In such a situation a Bishop would far exceed his rights if he made a synodal law recognizing this custom. Mansi uses strong language in describing such a departure from the constituted order of procedure: nimia esset arrogantia, si Hpiscopus legem conderet contra legem Supervoris.* Still it cannot be denied that customs' contrary to the general law did exist and were difficult to remove. Ben- edict XIV‘ praises the prudence of Saint Charles Bor- romeo when the latter found himself in such a difficult position. In Milan a custom existed in regard to aliena- tion of ecclesiastical property. This custom was con- trary to the Apostolic constitutions. Saint Charles re- fused to legislate in this matter, but instead consulted Rome about the best course to pursue. An answer was given to Saint Charles that the custom could not remain in force and that the general law of the Church was to be followed. On the other hand Benedict XIV‘'*® warns against a hasty synodal law with a view towards eradicating a custom. Such action might lead to endless opposition to the detriment of souls. The prudent way would be to explain the case fully to the Holy See and abide by its wise disposition. Custom can be divided thus'!’: (a) in respect of ex- tent, customs are universal, general, or special according 114 Mansi, Epitome Iuris Canonici, (Mechliniae, 1824), verb. econsuetudo. 115 Benedict XIV, De Synodo Diocesana, (Romae, 1806), lib. IX, ce. VIII, n. 9; lib. XII, Cr Villar alo. 116 Benedict XIV, o.c., lib. XI, Co Ve i 117 Maroto, o.c., v. I, n. 250; Bouix, 0.C., Pp. 352. Principles of Privilege According to the 63 Code of Canon Law as the custom exists in the universal Church, a province or diocese, or in a society; (b) in respect of the law itself, customs are according, contrary, or beyond the law; (c) in respect of the manner of usage, customs are judicial, or extra judicial according as the customs have their proper place in trials or outside of them; (d) in respect of time, customs are ordinary, centennial, or im- memorial according as the custom is of forty years dura- tion, one hundred years, or the time of origin forgotten. Only customs contrary to the law, and beyond it are of any importance in regard to privileges. Canon 25 says that the competent Superior is the only one who can give legal force to a custom. Thus Canon Law differs from Roman Law because subjects in ecclesiastical law have no part in making laws.’*8 The Historical School, e. g., Shulte, Sohm, ete., attempted to apply the principles of Roman Law to Canon Law, but as Wernz™® points out they contradicted the teaching of the Church.’ All juris- diction resides in the Pope, and thru him in the Bishops: the faithful have no legislative power. Tacit consent of the competent Superior suffices for the validity of a custom, but even legal consent such as is given in canons 27 and 28 is enough to make the custom legitimate. This was already admitted in the Decretals of Gregory [X.**” The matter, or substance of the custom must be rea- sonable.!= Therefore no custom, and thru it a privilege, can be introduced contrary to natural, or divine law,’ or which is expressly declared to be unreasonable. In 118 Maroto, o.c., v. I, n. 252. 119 Wernz, o.c., v. I, n. 188. 120 ©. 3, X, de consuetudine, I, 4. 121 Bellarminus, o.c., lib. IV, c. XV; Bouquillon, o.c., n. 96. 122 ©, 11, X, de consuetudine, I, 4. 123 Maroto, o.c., v. I, n. 252. 124 ©. 27, §1; C. 10, 11, X, de consuetudine, I, 4; c. 30, X, de praebendis et dignitatibus, III, 5; Bouix, o.c., p. 364. 64 Principles of Privilege According to the Code of Canon Law the Code every custom which is expressly reprobated is unreasonable.” Superiors are the judges of the reasonableness of a custom. In case of doubt, possession will argue in favor of the custom.’*° The time required by the Code for the concession of privilege thru custom is determined according to the re- spective law in the matter. Customs contrary to ordinary laws become legal after forty continuous and complete years. Customs, however, contrary to a law which con- tains a clause prohibiting customs do not become legit- imate until one hundred years are completed. Imme- morial customs likewise cause prejudice to the last- named laws.1?? 4. Prescription as a Source of Privilege. Prescription is defined: Modus legitumus acquirendt ws vel liberationem aliquam procedens per possesstonem modo et tempore a legibus continuatam.’** Primarily, prescription is one of the legal exceptions by which good faith coupled with legitimate and continued possession supersede the rights of a preceding owner. Prescription has its foundation in human law, and not in natural law. The latter would recognize an abandoned right as always belonging to the owner, while the former legally dispos- sesses the owner and transfers the right to another. Prescription is justified by the elimination of the con- fusion whieh would result from years of unknown owner- ship. Prescription is divided into formal and causal. YFor- mal prescription is the right acquired after the require- ments of the law have been fulfilled. Causal preserip- 125 Can. 27, § 2. 126 De Angelis, DO Abe y likes Velie Ue 127 Can. 27, §1 128 Santi, Beane Iuris Canonict, (Ratisbonae, 1886), lib. II, tit. 37.5). Principles of Privilege According to the 65 Code of Canon Law tion consists in the actions which tend toward obtaining formal prescription.’ The qualities necessary for valid prescription must be considered carefully. In the first place it is essential to know that not every thing is subject to prescription. Canon 1509 names items that are not liable to pres- cription. For example, the privilege of exemption from all visitation can never be prescribed. Similarly, the exemption accorded religious Orders cannot be pres- eribed by a Congregation because the only source of this privilege is Apostolic concession. Good faith is neces- sary according to the Rule of Law possessor malae fide ullo tempore non praescribit.*! A just title is necessary. By this it is understood that transferable dominion exists. Possession is absolutely essential to prescription, for without it prescription is unintelligible.’ Prescription is properly understood in acquiring rights which, according to the common law, would belong to another. Thus such jurisdiction which has its sole source in ecclesiastical law can be prescribed by a elerie.°? Similarly, the jurisdiction of an Archbishop, or Bishop can be prescribed by a Patriarch. Such a case was decided by Innocent IIT in hig letter to the Arch- bishop of Turo.“* Again Innocent III decided in favor of a prescription in the case of delinquent clerics. The 129 Santi, o.c., le. n. 4. 130 Can. 1509. Praescriptioni obnoxia non sunt: 1. Quae sunt iuris divins sive naturalis sive positivt; 2. Quae obtineri possunt ex solo privilegio apostolico; 3. Iura spiritualia, quorum laici non sunt capaces, st agatur de praescriptione in commodum laicorum; 4. Fines certi et indubti provinciarum ecclesiasticarum diocesiwm, paroeciarum, vicari- atuum apostolicorum, praefecturarum apostolicarum, abbatiarum vel praelaturarum nullius; 5. Eleemosynae et onera Missarum; 6. Benefi- cium ecclesiasticum sine titulo; 7. Ius visitationis et obedtentiae, ita ut subditi a nullo Praelato visitart possint et nullt Praelato tam subsint; 8. Solutio cathedratict. 131 RJ. 2 in VI. 132 RJ. 3 in VI. 133 Jurisdiction received from divine law is not subject to prescription: ean. 1509, n. 1. 134 ©, 9, X, de officio wudicis ordinarit, I, 31. 66 Principles of Privilege According to the Code of Canon Law Pope writes that Bishops are to judge their subjects unless a custom or privilege rule otherwise.’ The time required to prescribe a privilege against the rights of the Holy See is one hundred years.*** This doctrine was already taught by Gratian: Venerandae Romanae leges, divinitus per ora principum promulga- tae, reum evus prescriptionem non nist per centum annos admitiunt.3* Tnnocent III took up the same principle,”* and Boniface VIII made a similar ruling.” Thirty years are sufficient to prescribe against the rights of a moral person inferior to the Holy See.**° Prescription of the rights of a Bishop, and indeed of any physical person, is not included in canon 1011. Another canon (1508) says that the respective law of the nation is to be followed. Should no law be found to cover the case, refuge will have to be taken in the law made for similar cases.141 Perhaps thirty years would suffice for prescription against the rights of a Bishop. Vermeersch holds this opinion.’*? But this interpreta: tion does not agree with another canon.’ While it is true that custom and prescription are not the same, still the latter is a kind of private custom. An individual person cannot induce a custom, but he can prescribe.** Now in canon 27, § 1, it is stated that a period of forty years is necessary to act legally against an ecclesiastical law. Jurisdiction of Bishops come under this head. Therefore it seems that forty, and not thirty years are 135 ©, 13, X, de foro competenti, II, 2. 136 Can. 1511, § 1. 1387 ©. 17, C, XVI, q. 3. 138 C, 13, 14 X, de praescriptiontbus, II, 26; c. 4, X, de confirmatione utilé vel wnutili, II, 30. 139 C. 2, de praescriptionibus, II, 13 in VI. 140 Can. 1511, § 2. 141 Can. 20. 142 Vermeersch-Creusen, o.c., v. I, n. 130. 143 Can. 27, $1. 144 Cicognani, 0.¢., p. 282. Principles of Privilege According to the 67 Code of Canon Law necessary for prescription.’** Besides a Bishop is not considered a moral person in regard to his personal juris- diction, but only in relation to the rights of his diocese which he embodies in his only own person. Hence it seems to be incorrect to apply prescription against moral persons to prescription against individual rights of a Prelate. 0. Presumption of Privileges. Can. 63, § 2. Possessio centenaria vel immemorabilis inducit praesumptionem concessi privilegii. Presumption is defined in canon 1825, $1. Praesump- tio est rei incertae probabilts coniectura. The same canon divides presumptions into praesumptiones iuris, and praesumptiones hominis. The former are determined by law: the latter are formed by a judge. Praesumptio juris is further divided into praesumptio wuris simplici- ter, and praesumptio iuris et de wre. The value of the several classes varies. Legal pre- - sumptions carry great weight, and must be accepted by all within the proper sphere of their content, and accord- ing to the probative force assigned to them by law. Thus praesumptio iuris simpliciter furnishes a basis for form- ing a judgment but it admits both direct and indirect contrary proof: pracsumptio iuris et de wure cannot be attacked directly but is assailable only in so far as its foundation may be destroyed.*® Both of these presump- tions have objective force in law. A judge is not free to admit or reject them. Thus the testimony of two or moro witnesses, with all the qualifications demanded in canon 1791, § 2 must be accepted as sufficient proof." Praesumptio hominis will have an indefinite value according to the reasons proposed by each judge. This 145 Cocchi, o.c., v. I, n. 117. 146 Can. 1826. 147 Noyal, o.c., n. 512. 68 Principles of Privilege According to the Code of Canon Law value is entirely personal and may mean nothing at all to another judge. Thus a judge secundae mstantiue may reject all the presumptions of the court from which the appellation came. , The legal foundation for the value of presumption, at least in regard to privileges, is based on the tolerance of the legislator. Benedict XIV takes occasion to ex- amine this point in discussing the administration of the Sacrament of Confirmation by Greek priests. The emi- nent canonist writes that the administration of the Sacra- ment of Confirmation by Greek priests is not expressly condemned and therefore it is to be considered valid ob tacitam saltem privilegium a Sede Apostolica illis con- cessum: cuius quidem privilegu praesumptionem inducit upsamet conniventia, et tolerantia Romanorum Pontifi- cum, qui praedictum Graecorum morem scientes non con- tradixerunt, nec unquam iulum damnarunt 3 The probative force of a presumption relative to a privilege was admitted by Pope Nicholas I in his letter to the Archbishop of Bourges. The Pope writes that no Prelate has a right to arrogate another’s jurisdiction, but that custom can change some of the canons giving rise to privileges.'* Innocent III likewise admitted the force of pre- sumption in another dispute concerning alleged usurpa- tion of jurisdiction by means of custom and prescrip- tion.° Alexander III similarly allowed presumption in the matter of tithes.*? A presumption that a privilege has been conceded relieves the grantee of the burden of proof. Mere denia! of the privilege cannot be sustained, but the presumption itself can be dissolved if it should be proved that in point of fact the disputed privilege had not been conceded. 148 Benedict, XIV, o.c., lib. VII, c. TX, n. 3. MOL BON TX gg os | 150 C. 13, X, de foro competenti, II, 2; ce. 18, X, de praescriptionibus, II, 26. 151 C, 4, X, de praescriptionibus, II, 26. Principles of Privilege According to the 69 Code of Canon Law The possession essential to presumption must be real. Consequently, something held in trust cannot give rise to presumption. The object in possession may be something material concerning which a privilege can be granted, or something spiritual such as a right, or a benefice. CHAPTER V INTERPRETATION OF A PRIVILEGE. An interpretation of a privilege is the explanation of the terms of a privilege. It supposes a doubt concern- ing the terms of the favor granted. Strictly speaking, declaration is not the same as interpretation for the for- mer merely states what is contained in the grant and does not suppose it to be anything but clear. Yet the non-restrictive and non-extensive interpretation demand- ed in a privilege’ can be called declarative interpreta- tion. Interpretation can be divided in several ways. In respect of its application, it is extensive, or comprehen- swe. An extensive interpretation enjoys great import- ance in matters of law. In order to have extensive in- terpretation, it is necessary not only to go beyond the actual verbal meaning of the law, but also to depart from the mind of the legislator.2. However, such inter- pretation must not be contrary to the mind of the legis- lator. Reasons similar to the ones supporting a law allow for its extension to cases not included in the law itself. Innocent III thus explains his right to transfer Bishops-elect.? In interpreting privileges extensive interpretation is of no value. A privilege concedes a special faculty. It is an extraordinary provision and consequently can- not be used as an example. Pope Alexander III wrote: Temerarvum est et indignum, aliquem sibi sua auctori- — tate praesumere, quod Romana ecclesia alicui, certa ra- 1 Can. 67. 2 Reiffenstuel, o.c., lib. V, tit. XXXII, n. 93; Ferraris, 0.0. v. privi- legium, art, 2, n. 20. 8 ©. 2, X, de translatione Episcopi, I, 7. [79] Principles of Privilege According to the 71. Code of Canon Law tione inspecta, singularibus voluit beneficiis indulgere.4 Boniface VIII sponsored identical legislation.® However this does not hold for extension to possible consequences of a privilege. For example, if a chapel is built within the confines of a parish and enjoys the privilege of having mass celebrated there, voluntary of- ferings can be accepted in that chapel. This might be considered more in the nature of comprehension than extension. Comprehensive interpretation is admissible in privi- leges. Such an interpretation conforms to the mind of the legislator rather than to his words.? Certe noverit ille, qui intentionem et voluntatem alterius variis verbis explicat, quia non debet aliquis verba considerare, sed voluntatem et intentionem, quia non debet intentio verbis deservire, sed verba intention.2 Gratian in his com- mentary to this canon reduces the text to an axiom: Intentio non debet deservire verbis, sed verba intentioni.® Thus, by means of comprehensive interpretation, a privi- lege conceded to a hospital includes those who work there, or, a privilege to say mass during an interdict includes the server, ete. In respect of the source of the interpretation, it is authentic, usual, or doctrinal. The first is obtained by express declaration of the Superior who conceded the privilege. The second is had thru custom. The third secures its force from the opinions of authors.’° The immediate and practical value of a doctrinal interpreta- tion depends upon the reasons adduced by each author. 4 C. 9, X, de privilegiis et excessibus privilegiatorum, V, 33; cf. c. 8, 16, 5 R. J. 28 in VI: Quae a iwre communi exorbitant, nequaquam ad con- sequentiam sunt trahenda; R. J. 74: Quod alicui gratiose conceds- tur, trahi non debet ab aliis in exemplum. 6 Tuschus, o.c., v. VI, lit. P, concl. 734, n. 1. 7 Ferraris, o.c., art. ¢., n. 21. SB Oyit, C. AXTT, q. 5. 9 Dictum Gratianum. 10 Ferraris, o.c., art. c., n. 22. 72 Principles of Privilege According to the Code of Canon Law An interpretation may also be strict, or broad. In no case can the words of the document be restricted to less than the meaning of the words allow, nor extend be- yond the natural and juridical sense of the words. Both strict and broad interpretation have as their sole sources custom and the opinion of authors. Canon 67. Privilegium ex ipsius tenore aestiman- dum est, nec licet illud extendere aut restringere. Canon 68. In dubio privilegia interpretanda sunt ad normam can. 50; sed ea semper adhibenda interpreta- tio, ut privilegio aucti aliquam ex indulgentia conceden- tis videantur gratiam consecuti. Canon 70. Privilegium, nisi alind constet, censen- dum est perpetuum. Before entering upon the discussion of the rules which must guide the interpretation of a privilege, it is well to lay down a principle which is anterior to all norms in this matter. This principle concerns the com- petence of interpreters. In the first place the legislator, who is alone capable of giving an authentic interpreta- tion of a privilege, is the most competent to interpret. His will is the cause of the privilege and he is the best judge of his own benevolent intentions.1! Innocent ITI, in writing to the doctors of Bologna summarizes in one short sentence the absolute competence of the legislator. He writes: Unde ws produt, interpretatio quoque pro- cedat.* In regard to Apostolic privileges, Pope Innocent III is even more explicit: cum super privilegtis sedis Apostolicae causa vertatur, nolumus de ipsis per alios audicart.* The successor of the actual legislator is 11 Herincx, 0.c., disp. 4, q. 7, n. 87; Tuschus, o.c., v. VI, lit. P, conel. 737, n. 1-3; Fagnanus, 0.c., De verborum significatione, c. olim, nD. sa De Meester, 0.¢., TN. 307. 12 C, 31, X, de sententia excommunicationts, V, 39, 13 C, 12, x de wdictis, II, 1. Principles of Privilege According to the 73 Code of Canon Law equally competent to give an authentic interpretation of a privilege. Is qui in tus succedit alterius, eo wre, quo alle utc debebit.14 After the legislator himself, or his successor, those who are learned in the law are the best interpreters. But their interpretation is merely doctrinal, and depends, as has already been observed, ‘on the reasons proposed. Hixtrinsic authority is likewise of some weight and, gen- erally speaking, the judgment of Superiors can be fol- lowed in interpreting a privilege. Thus regulars can follow the interpretation of their Prelates with a safe conscience.”® Obviously, when a privilege is entirely free from ambiguity it needs no interpretation. The purpose of interpretation is to discover what the legislator intends to concede, and hence, interpretation could have no place in a privilege which is itself sufficiently clear. A re- examination of the document containing a privilege may be necessary in order to find the exact intentions of the legislator. Thus the Decretals contain the remarks of Alexander III in reference to the many privileges of the Templars: totum ex wmspectione privilegiorum suo- rum, plenus advertere potes, et secundum quod inveneris, ita observes.® The same Pontiff writes to one of his legates: Inspicienda sunt ergo ipsarum ecclesiarum prwvi- legia, et ipsorum tenor est diligentius attendendus.™ As a corollary from these texts it follows that both extension and restriction are forbidden. Extension, as noted above, is entirely without application in privileges. ‘This is so true that a person with an even better reason for enjoying a privilege would nevertheless not possess it without specific concession.** The reason is that all 14 RJ. 46 in VI. 15 Herinex, 0.c., l.c. 16 C. 7, X, de privilegiis et excessibus privilegiatorum, V. 33. 17 C. 8, X, de privilegiis et excessibus privilegiatorum, V. 33. 18 Herinex, o.c., disp. 4, q. 7, n. 91; Palao, o.c., tr. 3, disp. 4, p. 13, n. 1; Amort, o.c., lib. V, tit. XXXIIT, n. 16; Sanguineti, o.¢c., n, 139, 74 Principles of Privilege According to the | Code of Canon Law the power and efficacy of a privilege come from the will of the competent Superior.!® Alexander III thus decided the matter in respect of exemption from tithes: licet de benignitate sedis apostolicae sit vobis indultum, ut de laboribus vestris, quos propriis manibus vel sumptibus colitis, nemini decimas solvere teneamim; propter hoc tamen non est licitum vobis cuilibet decumas de terris vestris subtrahere, quas alits traditis excolendas.*® Inno- cent III gave a similar decision in regard to exemption from possible penalties. The canons attached to the chapel of the Duke of Burgundy enjoyed the privilege that no Archbishop or Bishop could fulminate a decree of excommunication, interdict, or suspension against any one of their number. This privilege was a local and personal one. The canons enjoyed exemption from pen- alties not in their own right entirely, but by reason of their service in the ducal chapter. Nevertheless, some of the canons who rendered service in parish churches refused to submit to penal sentences inflicted because of crimes commited while in such parish service. Upon the Bishop’s appeal to Rome, the Pope replied: Quocirca fraternitati presentium auctoritate mandamus, quatenus, m quantum exempti sunt evusdem ratione capellae, apos- tolicis privilegus deferas reverenter; sed, in quantum ratione parochiahum ecclesiarum. vel alias iurisdictionem tuam respicere dignoscuntur, officia tui debitum in eosdem libere prosequaris.*1_ The Council of Trent cited this letter and confirmed it.** Similar extensive inter- pretations were rejected by Innocent IIT in his letter to the Bishops of Auson and Klide,” and again in the gen- eral council held during his reign.** Boniface VIII found it necessary to lay down the exact extent of exemption 19 Ballerini, o.c., v. I, n. 391, I. 20 C, 11, X, de decimis, primttiis et oblationibus, ITI, 30. 21 C, 16, de privilegiis et excessibus privilegiatorum, V, 33 in VI. 22 Sess. "XXIV de reformatione, ¢. 11. 23 C. 18, 19, X, de privilegiis et excessibus privilegiatorum, Vi835 24 C, 24, x, de privilegits et excessibus privilegiatorum, V, 33, ~ Principles of Privilege According to the Code of Canon Law so that it would not be so flexible as to nullify all juris- diction of the Bishop.” Benedict XIV, in his constitution Apostolica Indulta, August 5, 1744, calls attention to the abuses arising from the Pree interpretation of the Bulla Cruciatae.*® He says that these abuses are foreign to the mind and the will of the Pontiffs who made the concessions. Accordingly, he finds it necessary to make precise regulations cover- ing the provisions of this already ample privilege. The Sacred Congregation of Rites was obliged to give sim- ilar decrees. For instance, a feast celebrated in Spain could not be extended to Portugal. *7 Again the privi- lege of celebrating certain feasts conceded to the Arch- diocese of Cincinnati could not be extended to other dioceses altho they used the same Ordo.°8 Pope Pius X adhered to the same principle in his motu proprio of February 21, 1905. This motu proprio, Inter multiplices, defined the privileges of the Protono- taru, and precisely set the limits of place, time, and function in which these privileges could be used.” Restriction of a privilege is also forbidden. This prohibition does not, ordinarily, refer to the grantee. Since the entire use of at least strict privileges*® is left to the grantee, he can use all the privilege, or only a part as he sees fit. Everyone else, however, is obliged to allow-full use of the privilege, and cannot curtail the legitimate use of the privilege in any way. Indirect re- striction is also forbidden, for the reason that while pre- serving the letter of the privilege, it actually limits the free use of the grant. Honorius III expressly forbade this indirect restriction of a privilege.** 25 C. 9, de privilegits et excessibus privilegiatorum, V. 33 in VI. 26 Fontes, v. I, n. 344. 27 Dec. Auth. S.B.C., n. 179 ad 3. 28 Coll. n. 1592. 29 Dec. Auth. 8.R.C., n. 4154, n. 80. 30 As distinct from ‘privileges accorded a state, or a community. 31 C, 26, X, de privilegits et excessibus privilegiatorum, V, 33. ~! Os Principles of Privilege According to the Code of Canon Law Rules governing the interpretation of privileges. FunpaMENTAL Rute. The fundamental rule for the interpretation of privileges can scarcely be better ex- pressed than in the way it is found in the Code: Ha semper adhibenda interpretatio, ut privilegio aucts ali- quam ex mdulgentia concedentis videantur gratiam con- secuti.*? If the essence of a privilege consists in the concession of a favor not possible of attainment under the law, then, every interpretation must preserve this element inviolate.** A privilege would be useless if it were hedged in with so many formalities that it would result in something attainable in law. For instance, if a priest obtains the privilege to celebrate mass on a portable altar, his privilege must mean per modum habi- tus. It cannot mean for a few occasions, e. g., as long as possible infirmity may last, because he would not need a privilege for this. The common law allows a Bege to permit such celebration of mass per modum -actus.*4 66 THE FORCE OF ““WORDS’’ IN GENERAL, AND CONSEQUENTLY, IN A PRIVILEGE. Words are signs.** They give testimony of thought, and show the disposition of will. From their nature, words must serve the intention and vice versa. Barbosa compares words to the body and the mind to the soul. ‘The former depends upon the latter for its activity.** Ordinarily words will show exactly what is present in the mind. This is the reason why words must be inter- preted according to their proper meaning. In a privi- lege they have the same function. 7 32 Can. 68. 83 St. Alphonsus, o.c., lib. I, app. IT, c. I, n. 6; Suarez, o.c., lib. 8, ¢. 28, ets Vermeersch- Creusen, 0.0.5°0 170: 132; DeMeester, 0.C., n. 307. 34 Can. 822, § 4. 35 Grandelaude, Breviariwm Phil. Schol., (Parisiis, 1878), t. I, p. I, n. 27. 36 Barbosa, Tractatus varii, Axiomata, CCXXIL, n, 3. SS a Principles of Privilege According to the ih Code of Canon Law It happens at times that words are not precise and do not definitely convey the thought which they should express. Again, words which were once clear and unmis- takable may lose these characteristics and take on an indefinite meaning. In order to assist in arriving at a practical conclusion in the interpretation of a given docu- ment the following rules are proposed. The general rules offered will govern all cases; the particular rules must be applied according to species of favor conceded. GreneraL Rutes. I. Briefly the first general prin- ciple of interpretation of a privilege may be expressed thus: Privilegium tantum valet, quantum sonat. The word- ing of a privilege is to be taken in its natural, or in its juridical sense.*” This is the ordinary rule. However, if ia word taken its proper meaning causes injustice to an- other, the legislator is not presumed to have used the word in that sense. Similarly, if the wording of a docu- ment shows clearly that a word was used improperly, this improper meaning evidently is not the idea which the legislator wishes to convey. Again, if the exact meaning of a word would render the privilege useless, manifestly the legislator does not intend it to have such a meaning.*® The juridical meaning of a word is to be preferred to the natural meaning, if the two should not coincide.” (The practice of the respective curia from which the docu- ment emanated is to be followed. Hence a Papal privi- lege is to be interpreted according to the use of the word in the Papal curia, and an Episcopal privilege according ito the use of the word in the Episcopal curia. Il. If the rescript contains obscure or uncertain words, the doubt can be solved (a) by appealing to the 87 Suarez, o.c., lib. 8, c. 28, n. 16; De Camillus, Instituttones Iuris Canonici, (Parisiis, 1868) lib. II, c. I, art. I, n. VI. 88 Schmalzgrueber, o.c., lib. V, tit. XXXIII, n. 120; Fagnanus, o.c., _de privilegiis et excessibus privilegiatorum, c. Quod nonnulla, n. 28; Ballerini, o.c., v. I, n. 391, I. 39 Schmalzgrueber, o.c., lib. V, tit. XX XIIT, n. 121. 78 Principles of Privilege According to the — Code of Canon Law petition, (b) by ascertaining how the privilege was inter- preted in the beginning, (c) by considering the matter of the privilege, (d) by considering the quality of the privi- lege.*° (a) In granting his rescript, the legislator, or Su- perior is influenced by the petition offered. Hence ordi- narily the Superior can reasonably be understood to errant the privilege in the same fashion in which it was requested.*! Should a privilege be asked for to say mass on board ship, and the petition state that the request covers the period of two or three months necessary for an extended voyage, the legislator, if he accedes to the request, doubtless wishes to grant the privilege for so long atime. Similarly, if the request is made for a single trip to Kurope, it would mean a round-trip. In a motu proprio privilege, a petition is not the cause of the rescript altho it may be its occasion. Doubt- ful expressions occurring in such a rescript would have to be judged according to the following principles. (b) In the course of time doubts may arise con- cerning words which at first seemed to be clear. In such a case it will be necessary to see how the privilege was in- terpreted in the beginning.** The immediate beneficiaries were in an excellent position to study the mind of the legislator and weigh all the circumstances incident to the issuance of the privilege. For example, if a privi- lege of having mass celebrated in a private oratory exists for some years, and now a doubt should arise about the admittance of certain people, sufficient security can be obtained by learning what the original grantee did. (c) The substance of a privilege can very often dispel a doubt concerning the terms of a privilege. 40 Grandclaude, o.c., lib. V, sec. 3, n. 1. 41 Herinex, 0.c., disp. gM Oy a 88; Palao, o.c., tr. 3, disp. 4, p. 9, n. 1; Suarez, o.c., lib. 8, c. 28, n. 9. 42 Suarez, 0.c., i.e. 43 Suarez, 0.C., 1.6, Principles of Privilege According to the 79 Code of Canon Law Along some lines the legislator is accustomed to be gen- erous, and along others not so favorable. (d) The law to which a privilege might refer can also aid in interpreting a privilege. Privileges contrary to the law must be interpreted strictly :** privileges be- yond the law can receive a broad interpretation. Most of these suggestions are intrinsic to the re- script itself. Another, but an extrinsic guide might be added. Privileges granted to other persons than the immediate grantee can also serve as a source of inter- pretation.” Ina given set of circumstances, the legis- lator is accustomed to grant privileges in the same way. Consequently, if one privilege seems obscure, it could be interpreted by reference to other privileges granting the same favor. Yet this means of interpretation may be precarious rule to follow at times since any warrant- able circumstance may influence the legislator to con- cede his favors more or less generously. Prudence will demand a minute examination of both privileges in order to use similarity as a guide of interpretation. Lastly, a privilege must not be interpreted in such a way that it becomes burdensome to the grantee. An interpretation of this kind would be more of an onus than a favor.*® In regard to all the suggestions given above, the chief element of a privilege must be kept in mind. A privilege grants a concession. All interpreta- tions must preserve this element. ParticuLAR RULES. Besides the general rules out- lined above, a particular rule can be laid down for favor- able privileges, and another rule for odious privileges. I. Favorable or gracious privileges are privileges which cause no injury to common law, or prejudice to a third party. Numbered among such privileges would be 44 Cf. canons 19, 50, 85. 45 Suarez, o.c., l.c. 46 Craisson, o.c., v. I, n. 167. 80 Principles of Privilege According to the Code of Canon Law indulgences, but not necessarily every kind of privilege bevond the law. The substance of a favorable privilege may be any kind of favor, material or spiritual. Since the favor alone is concerned, without reference to anything else, it receives a broad interpretation. One of the Rules of Boniface VIII" supplies the foundation for such broad interpretation: favores convenit ampliari. The word convent is apt. A legislator should show himself benefi- cent whenever possible. Concessions that cannot do any harm go far toward conciliating minds which are not always tractable. Remunerative privileges, for in- stance, exhibit a sense of appreciation which may in- spire further effort. Therefore, the widest possible inter- pretation is to be given to such favors, provided, of course, the interpretation remains within the proper meaning of the words. Motu proprio privileges, even if they are against the common law, are to be interpreted widely. The rea- son is that the legislator, knowing the full content of common law, grants a concession which he could restrict if he desired. Since he does not restrict the terms of the privilege, he is presumed to incline toward a broad interpretation of the favor he has granted.*® Il. Odious privileges regularly receive a strict in- terpretation.*®