Page:Catholic Encyclopedia, volume 12.djvu/502

 PRISONS

436

PRIVILEGE

in prisons should be based on different principles from those applied to men. (8) In the case of con- ditional liberation the time of probation should be sufficiently prolonged.

Krauss. Im Kerker vor u. nach Christum {Freiburg. 1S95) ; Krieq, Wissenschaft der SeeUnleitung, I (Freiburg, 1907), 347 sqq. , LiMBEBG, Die Gefdngnisseelsorge u. charitative Fursorge fur Gefangene und Entlassene in Preussen (1903); Rohden, Pro- bleme der Gefangenenseelsorge u. Entlassenfursorge (1908); von HoLTZENDORFF AND VON Zagemann. Handbuch der Gef&ng- niswesens (18S8): Krohne, Lehrbuch der Gef&ngnisskunde (1889): Lenz, Die anglo-amerikanische Reformbewegung im Strafrecht (190S); AsCBROTT. SIrafen- u. Gefdngniswesen in Eng- land wdhrend des letzten Jahrzehnts (1896); Kbohxe and Uber, Die Strafanstalten und GefSngnisse in Preussen (1909): Appel, Der VolUiig der Freiheitsstrafen in Baden (1905); Rosenfeld, 300 Jahre Fursorge der preussischen Staatsregierung fur die entlassenen Gefangenen (1905); Heimberger, Zur Reform des Sirafvollzuges (1905) ; Bachem and Meister. Gefdftgniswesen in Staatsleiikon, II (1909), 418 sqq.: Ccche, TraiK de science et de Ugislalion pinitentiaires (1905) : Prins, Science penale et droit positif (1899); Revue pinilentiaire, passim: International Prison Congress, Prisons and Reformatories at Home and Abroad (London, 1872); Cook, The Prisons of the World (London, 1S91); WiN-ES, Slate of Prisons in the Cicilized World (Cam- bridge, 1880); Idem, Punishment and Reformation (New York, 1910); Parsons, Responsibility for Crime (New York, 1909); CooNET, Prison Reform in The Month, XCVI (London, 1900), 597.

Charles Collabd.

Prisons, Ecclesiastical. — It is plain from manj' decrees in the "Corpus Juris Canonici" that the Church has claimed and exercised the right, belonging to a perfect and visible society, of protecting its mem- bers by condemning the guilty to imprisonment. The object of prisons originally, both among tlie Hebrews and the Romans, was merely the safe-keeping of a criminal, real or pretended, until his trial. The eccle- siastical idea of imprisonment, however, is that con- finement be made use of both as a punishment and as affording an opportunity for reformation and reflec- tion. This method of punishment was anciently ap- plied even to clerics. Thus, Boniface VIII (cap. "Quam\-is", iii, "De pcen.", in 6) decrees: "Although it is known that prisons were specially instituted for the custody of criminals, not for their punishment, yet we shall not find fault with you if you commit to prison for the performance of penance, either per- petually or temporarily as shall seem best, those clerics subject to you who have confessed crimes or been con- victed of them, after you have carefully considered the excesses, persons and circumstances involved in the case". The Church adopted the extreme punishment of perpetual imprisonment because, by the canons, the execution of offenders, whether clerical or lay, could not be ordered by ecclesiastical judges. It was quite common in ancient times to imprison in monasteries, for the purpose of doing penance, those clerics who had been con\-icted of grave crimes (c. v\\, dist. 50). The "Corpus Juris", however, saj's (e. "Super His", viii, "De poen.") that incarceration does not of itself in- flict the stigma of infamy on a cleric, as is evident from a papal pronouncement on the complaint of a cleric who had been committed to prison because he vacillated in giv'ing testimony. The reply recorded is that imprisonment, does not ipso facto carry with it any note of infamy.

As to monastic prisons for members of religious orders, we find them recorded in decrees dealing with the incorrigibility of those who have lost the spirit of their vocation. Thus, by command of Urban VIII, the Congregation of the Council (21 Sept., 1624) de- creed: "For the future, no regular, legitimately pro- fessed, may be expelled from his order unless he be truly incorrigible. A person is not to be judged truly incorrigible unless not only all those things are found verified which are required by the common law (not- withstanding the constitutions of any religious order even confirmed :uid approved by the Holy See), but also, until the delinquent has been tried by fasting and patience for one year in confinement. Therefore, let every order have private prisons, at least one in

every province". The crimes in question must be such as by natural or civil law would merit the pun- ishment of death or imprisonment for life (Reiffen- stuel, "Jus Can. univ.", no. 228). Innocent XII re- duced the year required by the above-mentioned decree to six months (Decree "Instantibus", §2). A decree of the Sacred Congregation of the Council (13 Nov., 1632) declares that a religious is not to be judged incorrigible because he flees from imprisonment, un- less, after being punished three times, he should make a fourth escape. As the civil laws do not, at present, permit of incarceration by private authoritj-, the Con- gregation on the Discipline of Regulars has decreed (22 Jan., 1886) that trials for incorrigibility, preceding dismissal, should be carried out by summary, not formal, process, and that for each case recourse should be had to Rome. A vestige of the monastic imprison- ment (which, of course, nowadays depends only on moral force) is found in the decree of Leo XIII (4 Nov., 1892), in which he declares that religious who have been ordained and wish to leave their order can- not, under pain of perpetual suspension, depart from the cloister (cxire ei clatisura) until they have been adopted by a bishop.

Piatus Montensis, Pralectiones juris regularis, I (Paris. 1888); Reiffenstuel, Jus canonicum universum, V (Paris, 1868); Pl- HRING, Jus canonicum universum, V (^'enice, 1759).

William H. W. Fanning.

Pritchard, Humphrey, Venekable. See Nich- ols, George, Vener-^ble.

Privilege (Lat., privilegium, like priva lex) 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 dispensa- tion. It is granted to his subjects bj' a superior ha^•ing 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 privi- lege, finally, deviates from the common law, including particular laws, whether it merelj' adds to it or derogates from it.

Privileges are of many kinds. Contrasted with the law, they are: (1) assimilated to the law, forming part of it {clausa in cor pore juris), such are the privi- leges of clerics, or they are granted by special rescript. (2) They are superadded to the law {prater jxts), when they relate to an object not touched by the law, or contrar)' 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 con- cession, they are (3) granted directly or obtained by communication with those who enjoy them directly. Moreover, the concession may be (4) either verbal or by an official ■nTiting. 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. Cone. 27 and .52). If we con- sider the motive for granting them, privileges are di\'ided: (5) 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 (6) 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 dio- cese (local privilege). With regard to their object,