Privilege
privilege
A more or less permanent concession made by the legislator against or beyond the law. The emperors and the popes, especially since the 8th century, granted privileges. They may be acquired either orally or in writing, either by direct concession or by communication. This latter means partaking of a privilege either by extension or by aggregation. An extensive communication was applied to all regulars. Aggregation takes place between a confraternity and an archconfraternity. The distinction between personal and real privileges is noteworthy. Personal privileges are granted to the person as such, e.g., a title, garb; a real privilege is attached to a thing, as an altar, rosary. If a personal privilege is granted it need not be used, but it is not lost by non-use. A real privilege is lost by the absolute destruction of the thing. Otherwise, privileges are perpetual, unless expressly revoked.
Fuente: New Catholic Dictionary
Privilege
(Lat., privilegium, like priva lex)
Privilege is a permanent concession made by a legislator outside of the common law. It is granted by special favour, and gives the privileged an advantage over the non-privileged individuals; it differs from particular laws which also concern certain classes of persons or things; thus the clergy and the religious have their laws and their privileges. The favour, being lasting is thus distinguished from a permission or single dispensation. It is granted to his subjects by a superior having authority over the law; it thus receives an official value approximating it to a law, in the sense that he who enjoys it may lawfully exercise it, and third parties are obliged to respect its use. A privilege, finally, deviates from the common law, including particular laws, whether it merely adds to it or derogates from it.
Privileges are of many kinds. Contrasted with the law, they are: assimilated to the law, forming part of it (clausa in copore juris), such are the privileges of clerics, or they are granted by special rescript. They are superadded to the law (pr ter jus), when they relate to an object not touched by the law, or contrary to the law (contra jus), when they form an exception, allowing one to do or to omit what the law forbids or commands. As to the manner of concession, they are granted directly or obtained by communication with those who enjoy them directly. Moreover, the concession may be either verbal or by an official writing. Verbal concessions are valid in the forum of conscience, or better, in the case of acts that need not be justified in the external forum; to be valid in the external forum, they must have been granted officially by rescripts or at least attested by a competent official (Urban VIII, “Alias felicis”, 20 Dec., 1631; Reg. Conc. 27 and 52). If we consider the motive for granting them, privileges are divided: into remunerative, when they are based on the merits or services of the grantees, or purely gratuitous. From the point of view of the subject, privileges are personal, real, or mixed; personal are granted directly to individuals; real to what the law terms a “thing”, for instance, a dignity as such, e.g. the privilege of the pallium for an episcopal see; mixed, to a group of persons, like a chapter or a diocese (local privilege). With regard to their object, privileges are positive or negative, according as they allow the performance of an act otherwise forbidden, or exempt one from the performance of an act otherwise obligatory. Again they are honorary or useful; purely gratuitous or onerous, the latter entailing certain duties or obligations correlative to the privilege; among such are conventional privileges, like concordats. Finally, from the point of view of their duration, they are perpetual or temporary.
Privileges recognized by the law require no proof and must be recognized by the court; all other privileges must be proved, not presumed. They are proved by the production of the original concession or by a duly certified copy. To avoid difficulties the superior is often asked to renew or confirm the privileges granted by him or his predecessors. This confirmation may be either in common form, recognizing the privilege again, but giving it no new force, or in specific form, which is a new grant, revalidating the former as far as needs may be. The two forms are distinguished by the context and the official wording employed (cf. Decret., lib. II, tit. xxx, “De confirmatione utili vel inutili”). The teaching of the canonists on the interpretation of rescripts may be summed up as follows: Privileges are to be construed according to the letter, the interpretation being neither extensive nor restrictive but purely declaratory, that is the words are to be taken only in their full and usual signification. A privilege as being a concession of the ruler is understood generously, especially when it runs counter to no law; in as far as it derogates from the law, particularly if it interferes with the rights of a third party, it is interpreted strictly. Privileges are obtained by direct concession, which is the usual way, or by prescriptive custom, an exceptional and indirect manner, or by communication. The last is an extension of the privilege to others than the first grantees. It may occur in two ways: either explicitly, the legislator giving the former class what he gave the latter, or implicitly, when it is already decreed that the privileges granted to certain juridical entities are deemed accorded to certain others, unless the privilege be incommunicable or an exception be made by the superior. The best-known example of the communication of privileges is that existing among the Mendicant Orders, as appears by many pontifical Constitutions from the time of Sixtus IV. Similarly communication of privileges exists between archconfraternities and affiliated confraternities.
Privileges cease by the act of the legislator, the act of the grantees, or spontaneously. The legislator may revoke his concession either formally, or implicitly by a contrary law containing the clause “notwithstanding all privileges to the contrary” or even, “notwithstanding all privileges the tenor of which ought to be reproduced textually”. It is clear that a revocation may be only partial. The grantees may terminate the privilege: first, by an express renunciation accepted by the superior; provided however that it is the case of a personal privilege; for privileges of general interest, like those of the clergy, may not be renounced. Second, by non-user; not always, however, as theoretically the use of privileges is optional, but when this non-user gives third parties a prescriptive right; thus by non-user the privilege of election or of option in a chapter may be lost. Third, by abuse, in which case the withdrawal of the privilege is a penalty requiring at least a judicial declaratory sentence. A privilege ceases spontaneously when a circumstance which was a condition for its enjoyment ceases: thus a cleric in minor orders loses the clerical privileges if he again embraces a secular calling; second, by lapse of time: for instance, where an indult is granted for a certain number of years, or when an honorary title is conferred on one for life; third, by the cessation of the subject: thus a personal privilege disappears with the person: the real privilege with the thing, e.g. the privileges of the churches of France ceased with the total suppression of the former state. Does a privilege cease when its raison d’être has completely ceased? Theoretically, it may be so; but, in practice, the privilege remains in possession and the grantee may wait till the superior intervenes.
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See the canonical writers on the title “De privilegiis et excessibus privilegiatorum”, lib. V, tit. xxxiii; in Sexto, lib. V, tit. vii; in Clem., lib. V, tit. vii; Extrav. Joann. XXII, tit. xi; Extrav. Comm., lib. V, tit. vii; FERRARIS, Prompta bibliotheca, s.v. Privilegium; D’ANNIBALE, Summula, I (Rome, 1908), nn. 227 Sq.; SLATER, Moral Theology (London, 1908).
A. BOUDINHON Transcribed by Douglas J. Potter Dedicated to the Sacred Heart of Jesus Christ
The Catholic Encyclopedia, Volume XIICopyright © 1911 by Robert Appleton CompanyOnline Edition Copyright © 2003 by K. KnightNihil Obstat, June 1, 1911. Remy Lafort, S.T.D., CensorImprimatur. +John Cardinal Farley, Archbishop of New York
Fuente: Catholic Encyclopedia
Privilege
(Lat. privilegium, from privata lex, a private law), in general, is a special ordinance or regulation in virtue of which an individual or a class enjoys certain immunities or rights from or beyond the common provisions of the general law of the community. In ancient and medieval legislation, the law of privilege formed an important branch; and, in truth, the condition of the so-called privileged classes was in all respects different, socially, civilly, and even religiously, from that of the non-privileged.
In canon law, there were two privileges enjoyed by the clergy, which deserve especial notice, from the frequency of the historical reference to them the privilege of the canon (privileyium canonis) and the privilege of the forum (privilegiumnfori). By the former, the person of the clergyman, of whatever degree, was protected from violence by the penalty of excommunication against the offender; by the latter in England called benefit of clergy (q.v.) the clergyman was exempted from the ordinary civil tribunals, and could only be tried in the ecclesiastical court. Chambers, s.v. This privilege from the civil power is now generally abrogated, or at least modified. It comprehended the independent jurisdiction of the clergy (privilegium fori), according to which not only all litigious concerns among the clergy themselves, but all personal, and most of the real complaints of laymen against clerks, were brought before, and decided by, ecclesiastical courts; likewise. not only their official transgressions, as functionaries of the Church, but also their civil crimes, were tried and punished by clerical tribunals. To the same class of privileges belongs the benefit of competence, in consequence of which, in matters of debts and substation, the clerical person must be left the means of living according to his station. Finally, the clergy obtained at an early period a number of immunities. which were gradually increased. They were, in consideration of the spiritual pursuits to which they have to devote themselves, exempted from the administration of governmental or communal functions, from tutorships and guardianships, from military and other services to which all other citizens of the State are bound (ismunitras personalis). With these was connected the immunity from extraordinary taxes (imnunitas realis); from presentations for the building of roads, bridges, channels; from lodging soldiers; from surveyances in times of war (immunitas mixta). Many of these immunities were granted to the clergy by the emperors Theodosius (Cod. Theodos. 2, 3, 11, 14-17, 24, 36, De episc. eccl. et cler. 16:2) and Justinian (1, 1, 2, 6, 52, Cod. De episc. et cler. 1, 3) in the times of the Roman empire; afterwards by the Frankish kings (Cupp. Reg. From cc. lib. 7:c. 185, 290, 467); consolidated by the ecclesiastical legislation (c. 69, c. 12 qu. 2; c. 40, c. 16:qu. I; c. 4, 7, 10 De immun. eccl. 3, 49; Sextus, c. 1, 3, cod. 3, 23; Sextus, c. 4, De censibus, 3, 20: Clem. c. 3, cod. 3, 13, etc.), and urgently recommendled by the Council of Trent to the worldly rulers (Conc. Trid. sess. 25:c. 20, De ref.). In our times most of the civil legislations impose the same regular taxes on all citizens, without exception, and regardless of former immunities. But in many European states the clergy are unconditionally exempted from communal functions, guardianships, and personal prestations, and are also exempted from military service. Wetzer u. Welte, Kirchen-Lexikon.
Fuente: Cyclopedia of Biblical, Theological and Ecclesiastical Literature
Privilege
See Judgment, Judgment According to Opportunity and Works; Responsibility
Judgment, Judgment According to Opportunity and Works; Responsibility