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 PRIVILEGED

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PRIVILEGES

privileges are (7) positive or negative, according as they allow the performance of an act otherwise for- bidden, or exempt one from the performance of an act otherwise obligatory. Again they are (S) honorarj' or useful; (9) purely gratuitous or onerous, the latter entailing certain duties or obligations cor- relative to the privilege; among such are conven- tional privileges, like concordats. Finally, from the point of view of their duration, they are (10) per- petual or temporary.

Privileges recognized by the law require no proof and must be recognized by the court; all other priv- ileges 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 priv- ileges granted by him or his predecessors. This confirmation may be either in common form, recogniz- ing 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. x.xx, "De con- firmatione utili vel inutili"). The teaching of the canonists on the interpretation of rescripts may be summed up as follows: Privileges are to be construed accordingto the letter, the interpret at ion 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 ex- plicitly, the legislator giving the former class what he gave the latter, or implicitly, when it is already de- creed that the privileges granted to certain juridical entities are deemed accorded to certain others, un- less 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 e.xists between archconf rat emit ies and affiliated confra- ternities.

Privileges cease by the act of the legislator, the act of the grantees, or spontaneously. (1) The legis- lator 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. (2) The grantees may terminate the privilege: first, bj' an express renunciation accepted bj- the superior; pro- vided however that it is the case of a personal priv- ilege; for privileges of general interest, like those of the clergy, may not be renounced. Second, by non- user; not always, however, as theoretically tlie 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 with- drawal of the privilege is a penalty requiring at least a judicial declaratory sentence. (.3) A privilege ceases spontaneously when a circumstance which was a condition for its enjoyment cea.ses: thus a cleric in minor orders Io.ses 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 con-

ferred on one for Ufe; 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 raisori d'etre has completely ceased? Theoretically, it may be so; but, in prac- tice, the privilege remains in possession and the grantee may wait till the superior intervenes.

See the canonical writers on the title " De pri\Tlegiis et esces- aibus pri%'ilegiatorum", lib. V, tit. xxxiii; in Sexto, lib. V, tit. vii; in Clem., lib. V, tit. \di; Extrav. Joann. XXII, tit. xi; Estrav. Comm., lib. V, tit. vii; Ferr.vris, Prompta bibliotheca, s. v. Pririlegium; d'Annibale, Summula, I (Rome, 1908), nn. 227 sq.; Slater, Moral Theology (London, 1908).

A. BOUDINHON.

Privileged Altax. See Altar, sub-title Privt- LEGED Altar.

Privileges, Ecclesiastical, are exceptions to the law made in favour of the clergy or in favour of consecrated and sacred objects and places.

I. — The privileges in favour of the clergy are: personal inviolability, a special court, immunity from certain burdens and the right to a proper main- tenance (pTivilegium caiionis, fori, immunitatis, competenlice). In addition, the clergy have prece- dence of the laity in religious assembUes and pro- cessions, a special place in the church, viz., the presbytery (c. 1, X de vita et honestate cleric. III, 1), and titles of honour. These honours increase according to the higher order or office.

Primlegium Canonis. — In earlier canon law the injuring or wounding of a cleric was punished by severe canonical penances, and on occasion by ex- communication (cc. 21, 22, 23, 24, C. XVH, q. 4). A person wounding a bishop incurred ipso facto ex- communication (Synod of Rome, 862 or 863, c. xiv). When about the middle of the twelfth cen- turj' at the instigation of politico-religious agitators, like Arnold of Brescia, excesses were committed against the defenceless clergy and religious, who were forbidden to carry weapons, the Church was com- pelled to make stricter laws. Thus, the Second Council of Lateran (1139), c. xv, after the Synods of Clermont (1130), Reims (1131), and Pisa (1135), decreed that whosoever thenceforth laid malicious hand on a cleric or monk incurred ipso facto anathema, the raising of which, except in danger of death, was reserved to the pope and must be sought in person at Rome (c. 29, C. XVII, q. 4).

This privilege, which, from the opening words of the canon, is called the primlegium canonis "Si quis suadente diabolo" or simply primlegium canonis, continues even to-day (Pius IX, " Apostohcae Sedis moderationi", 12 October, 1869, II, 2), and is en- joyed also by nuns (c. 33, X de sent, excomm. V, 39), lay brothers (c. 33 cit.), novices (c. 21 in VI'o h. t. V, 11), and even by tertiaries, who live in common and wear the habit (Leo X, "Dum intra", 19 Decem- ber, 1516; "Nuper in sacro", 1 March, 1518). According to the wording of the canon, however, it is necessary, for the incurring of the excommunica- tion, that the injury inflicted on the cleric or monk be a malicious and real injury, under which is in- cluded unauthorized deprivation of freedom (c. 29, X h. t. V, 39). Consequently, excommunication is not incurred by a superior justly chastising one of his inferiors (cc. 1, 10, 24, 54, X h. t. V, 39); by one who acts in self-defence against a cleric (cc. 3, 10, X h. t. V, 39), by one who avenges insult or assault on wife, mother, sister, or daughter (c. 3 cit.); when the injury results from a joke (c. 1, X h. t. V, 39), or if the assailant be unaware (to be testified on oath, if necessary) of the clerical rank (c. 4, X h. t. V, 39). Instead of the pope, the bishop gives absolution in the case of a slight injurv (c. 3, 17, 31, X h. t. V, 39); or if a journey to Rome