IV. We next require the Exhibition of Privilege as essential to its admission. "No privileged person," writes Van Espen, "is to be believed unless he exhibits his privilege." "If" (writes St. Gregory the Great) "you affirm that any privilege is granted to your church, you ought to show it. No one asserting himself or any other to be exempt from the common law, is or ought to be believed unless he shows his privilege and establishes his credibility." + V. We pass on to the Interpretation of Privilege, which must correspond with the form of its conveyance in strictness and perspicuity, and be ever restrained within the narrowest limits. Exemptions," writes Van Espen," are ever to be rigorously restricted within their literal meaning, that so far as the tenor of the words can bear it they may not swerve from the common law."§ On this ground the canon law forbids "the extension of privilege to another person by identity or parity of reason."|| * Repagulum Canon, p. ii. reg. iii. + C. Contra morem dist. 100. † Vincent. de Bandelis de Praerogat, Jesu Christi, p. 139. § Jus Eccl. Univ. p. i. tit. xii. c. v. Decret. 1. v. tit. xxxiii. c. ix. Zypaeus adds, "Even if the most ancient diploma is produced in behalf of an exemption it must be rigidly inspected," Neque ex verbis ambiguis inferendam exemptionem. "'* VI. The Limitations of Privilege arising out of the scope or spirit of the general law must be supplemented by other limitations arising out of special laws and relations. Thus a personal privilege is restrained, 1. By the rights and privileges of the community; 2. By the privileges of a corporation or order within the community; 3. By the object or trust for which such an order is instituted or incorporated; 4. By the grounds and conditions upon which the privilege is granted either to the body itself or to the individual. For the gift of privilege can never be held to convey any power in derogation of the rights and privileges of an order, a church or an individual. "As we maintain our own rights" (are the words of Pope Gregory the Great), "so we save the rights of every other church. Neither do I give to any one more than he can rightfully claim, nor do I derogate from the rights of any one whatever."+ We pass next to the * Responsa de Jure Canon, p. 266 (de Privilegiis). VII. Divisions of privilege; which are either personal or real. The rule in the one case is that "it follows the person, and becomes extinguished with the person.* In the other case it is capable of succession, and passes from the original holder to those who succeed him in his office or trust. VIII. As extensions of privilege are strictly forbidden, so excesses of privilege are held even to incur the forfeiture of the privilege."† IX. This forfeiture made by Revocation of Privilege is also incurred by the failure of the conditions upon which it was granted, or for other sufficient cause. Finally we recognize, X. The Renewal of Privilege which is held not to increase the original gift but merely to revive and preserve it. "Innovatio privilegiorum novum jus non tribuit sed antiquum conservat."§ These are the main principles and rules of the * Sixti de regulis juris. + Decret. Gregor, de Priv. et Excessibus, c. iii. Decret. p. i. Dist. 74, c. vii. and p. ii. causa xi. c. 63. Decret. Greg. de Priv. c. iii. § Decret. Gregor, 1. v. tit. xxxvi. cc. 13, 29. q. iii. law of privilege as they are laid down in the pages of the canon law, and we will now proceed to apply them to the case before us. The privilege itself is alleged to be conveyed in three passages of Scripture, viz., Matt. xvi. 16, 17, "I say unto thee that thou art Peter, and upon this rock will I build my church, and the gates of hell shall not prevail against it; and I will give unto thee the keys of the kingdom of heaven, and whatsoever thou shalt bind on earth shall be bound in heaven, and whatsoever thou shalt loose on earth shall be loosed in heaven." The second passage is Luke xxii. 32, "I have prayed for thee that thy faith fail not; and when thou art converted strengthen thy brethren." The third is the threefold charge conveying the pastoral office, "Feed my sheep-feed my lambs." Of the order of these words there is no doubt; and, as in a case of privilege, everything depends on the first donation (any subsequent gift being, in the eye of the law, rather an innovatio privilegiorum, than a new gift), we may take the first as the real conveyance of the privilege, the two others falling under the head of renewal of privilege, their true meaning being determined by the interpretation of the first and most important charge. I. Applying to the passage (Matt. xvi. 16, 17) the definition of privilege we have already given, we are first led to eliminate from it all that does not belong to the lex privata, to the special and personal gift. Now the binding and loosing power, as it was given to all the other apostles, in the absence of Peter (which extended from chap. xvii. 27, to chap. xviii. 21), must be at once detached from the actual privilegium. So must also the words, "I give unto thee the keys of the kingdom of heaven," for as the Council of Trent rules (and as the context plainly shows) the keys are the instruments of the binding and loosing power, "claves non ad solvendum duntaxat sed ad ligandum concessas."* And Benedict XIV. affirms that the "potestas clavium” was given, not only to Peter, but to the apostles generally, in the words, "Whosesoever sins ye remit, &c." Nothing therefore really remains of the special and personal privilege beyond the words, "Thou art Peter, and upon this rock will I * De Pœnit, cap. vii. + De Synodo Diœces. 1. vii. c. xvi. § iv. |