THE

PRIVILEGE OF PETER.

٤

PART I.

TESTED BY THE LAW OF PRIVILEGE.

THE assertion of the claim of the Roman Church
on the ground of the "Privilege of Peter," and the
constant recurrence to this legal form of speech, as
though it most accurately expressed that special
law upon which the jurisdiction of the papacy both
temporal and spiritual is based, removes the entire
controversy on the supremacy from the province of
Divinity into the more strictly governed region of
law, and enables us to apply to it those principles
and rules by which every merely civil or temporal
claim of privilege would be tested and examined.
It is true that the advocates of this claim assume
for it such a priority to and supremacy over every

other, as to exempt it from all those principles which regulate human law or which govern every school of divinity. Such an assumption we cannot, however, admit for a moment, holding with Pope Benedict XIV.: "Nemo esse queat Judex in causâ propriâ.”* The doctrine that "it is for infallibility alone to define the limits of infallibility," recently put forth by Archbishop Manning, is only the re-assertion in a grosser form of the "id licere Pontifici quod vult," of an earlier superstition; of which the great Cardinal Contarini wrote to Paul III.: "Haec positio adeo est falsa, adeo repugnans sensui communi, adeo est contraria doctrinae christianae, adeo depravat universi Christiani populi gubernationem ut nihi perniciosius inveniri potuerit" (Le Plat, Mon., Concilii Trid., tom. ii. pp. 596-613).

Assuming, therefore, that the appeal is to an ordinary legal tribunal, and that we are challenged by this claim of privilege (which in its very name involves the idea of law, and in its very nature presupposes a foundation of law) to examine the whole question on its merits, we will lay down first the principles and rules of the law of privilege as the

* De Synodi Diœces. 1. vii. c. xiv.

canon law has marked them out, and then proceed to apply them to this unique and exceptional claim.

I. We begin with the Definition of privilege, which is thus given-"Privilegia sunt leges privatorum quasi privatae leges"* or as it is further explained "Privilegium est lex privata. .... nec esset privata nisi aliquid specialiter indulgeret."† Both in the civil and the canon law the word had passed from that penal sense which it has in the pages of Cicero, where it means an exceptional law as against the individual, into what we may term a beneficial sense—a meaning conveying some additional gift or franchise on the one hand, or dispensation or exemption on the other. We may define privilege, therefore, as a special law founded upon a general one, either conveying some right or indulgence to a particular person above and beyond the right of the community, or exempting him from some obligation laid by the general law upon all alike. In the canon law it almost always assumes the latter form of exemption or dispensation, which necessarily in* Decret. p. i. dist. ii. c. iii.

+ Decret. Gregor, 1. v. tit. xi. c. 25.

Cicero de Legibus, 1. iii.

volves a prior obligation. For omnis exceptio formaliter praesupponit regulam.

II. From the Definition of Privilege we pass to the Foundation of privilege, which, whether it be (in the words of the canon law) real or personal, must rest upon the general law of the community. The private law rests upon the public, the special upon the general law. Hence arises the maxim of the canon law that no multiplication of privileges can create a general law. It follows also from this that a privilege ought never to be so interpreted as to violate the principles of a general law, nor yet to be drawn into consequences which would enervate or derogate from it. In the words of the canon law "Quae a jure communi exorbitant nequaquam ad consequentiam sunt trahenda."

III. The third principle relating to privilege is that its conveyance or donation must be made in the clearest and most perspicuous terms. "Privilegium est lex privata, et lex non debet esse obscura et captiosa sed certa et manifesta."* The learned Zypaeus dds-"A prince or pope is never held to make an exemption unless it is expressed in clear terms."+

* Gregor. Decret.

+ De Privilegiis, consult. i.