§ 1. Jurists ask whether a law can be imposed upon one person alone. I judge this to be a dispute about a name. For most laws are public; the eternal law binds all; and the Digest, π., On Laws, law Iura, asserts the same: “Rights are established not for individual persons but generally.” A norm too belongs not to one thing alone but to all similar things. When a law seems to be imposed upon a private person, they call it a precept, not a law. But, as I have said, the dispute concerns a name. For whether law is dictated to one or to many, it possesses the same force of binding. If we regard the present mode of speaking, we scarcely call it a law; if that of the ancients, we shall properly call even those measures which pertain to one person laws. Examples are the Clodian Law concerning the interdiction of water and fire to Cicero and concerning not receiving him beneath a roof; the Gabinian Law concerning entrusting the command of the war to Pompey; the Gellian and Cornelian laws concerning the same Pompey; and innumerable others which were enacted even for condemning or absolving defendants.
§ 2. All laws are referred to the common utility. For law is a common precept established for the common utility, so much so that, although it is imposed upon a private person, it is nevertheless referred to the public utility. Aristotle, book 3 of the Ethics, chapter 6; Plato, On Laws; Plutarch, problem 40. For although the good or evil of a private person is frequently embraced by law, it is nevertheless necessary that the state’s own utility accrue from it. Concerning those measures which are proposed to the community there must be no doubt, for the public good must not be referred to the private good, but the latter to the former. Therefore, the legislator must regard not the advantages of the prince but those of the whole state. For the magistrate exists for the sake of the subjects, not they for the sake of the magistrate. Kings are ministers and must undergo dangers for the state. Even privileges themselves, which seem to derogate from the common good and favor private persons and are therefore invidious, nevertheless flow back to the common good by another route, because it is publicly advantageous for those who have deserved well to be adorned with privileges. But when privileges are given without a legitimate cause, they harm the state according to the circumstances. Some are judged to constitute a certain honor, such as the right to wear a laurel crown or dine at public expense, and other things of this kind which ambition has devised. Others benefit one person in such a way that they burden the rest, such as immunity from tribute and exemption from military service and other burdens. When some are exempted from these, the others are burdened so much the more.
§ 3. When a law is enacted publicly which indeed does not harm the community but harms a private person, and is proposed with this intention—not that provision be made for the state but that damage be inflicted upon rivals—if that law is useful to the state, it cannot be accused of injustice even though it results in the injury of private persons. Nevertheless, the legislator sins and exposes himself to great danger when he prescribes good things for an evil end. But here the seeds of great dissensions are sown, when one part of the state cries that something is not unjust and the prince judges otherwise.
For example, a privilege is given to certain churches that they possess the right of asylum, a right which has in great part been removed in France, Germany, and other places. But concerning privilege let us examine law Pateant 4, On Those Who Flee to a Church, book 9 of the Theodosian Code, title 45. The law commands that everything within the church as far as its doors be regarded as an asylum. Edward II, king of England, imposed exile after forty days and twelve hours upon an accused person who had fled to a church.
Augustine excommunicated Count Boniface because he had dragged a suppliant out of a church. Gelasius did the same for the same offense. This privilege, therefore, was customary, that persons might flee to altars and statues of Caesar. But license turned what mercy established into an abuse. The right of asylum was first given to those places so that slaves might have a refuge from the savagery of masters. For an asylum is a sacred boundary by which security is given to slaves. Euripides, in the Suppliants:
ἔχει γὰρ καταφυγὴν θὴρ μὲν πέτραν, δοῦλος δὲ βωμοὺς θεῶν· πόλις δὲ πρὸς πόλιν ἔπτηξε χειμασθεῖσα.
For a wild beast has a rock as refuge, slaves the altars of the gods, and a city, when tossed by a storm, flees to another city.
There was an abuse which Tacitus describes in book 3 of the Annals: “But Tiberius, while strengthening for himself the power of the principate, offered the senate an image of antiquity by sending the petitions of the provinces to the examination of the Fathers. For throughout the Greek cities there had increased the license and impunity of establishing asylums. The temples were being filled with the worst of the slaves. By the same protection debtors against their creditors and persons suspected of capital crimes were received. Nor was any command sufficiently strong to restrain the seditions of a people protecting the crimes of human beings as though they were rites of the gods. It was therefore resolved that the cities should send their charters and ambassadors. Some voluntarily relinquished what they had falsely usurped; many trusted in ancient superstitions or services rendered to the Roman people. It was a magnificent spectacle on that day when the senate examined the benefactions of the ancestors, the treaties of allies, the decrees even of kings who had held power before Roman might, and the religious observances of the deities themselves, free as formerly to confirm or change them.
“First of all the Ephesians approached, recounting that Diana and Apollo were not born at Delos, as the multitude believed; that among them there was the Conchrian River and a place called Ortygia, where Latona, pregnant with her offspring and leaning upon an olive tree which remained even then, gave birth to those deities; and that the grove had been consecrated at the admonition of the gods. Apollo himself, after killing the Cyclopes, had there avoided the wrath of Jupiter. Later, Father Liber, victorious in war, had pardoned the suppliant Amazons who had occupied the altar. Thereafter, by the concession of Hercules when he possessed Lydia, the ceremony of the temple had been enlarged; its right had not been diminished under the dominion of the Persians, and afterward the Macedonians and then we Romans had preserved it.
“Next, the Magnesians relied upon enactments of Lucius Scipio and Lucius Sulla. The former, after Antiochus had been driven out, and the latter, after Mithridates, honored the fidelity and virtue of the Magnesians by establishing that the refuge of Diana Leucophryne should be inviolable. Afterward the Aphrodisians and Stratonicensians brought forward their ancient services to the party of Caesar the dictator and a recent decree of the deified Augustus. They had been praised because they endured an incursion of the Parthians without in any respect changing their constancy toward the Roman people. The city of the Aphrodisians defended the religious observance of Venus, that of the Stratonicensians the observance of Jupiter and Trivia. The Hierocaesareans traced their case more deeply, setting forth that among them was the Persian Diana, with a sanctuary dedicated by King Cyrus. They also recalled the names of Perpenna, Isauricus, and many other commanders who had attributed the same sanctity not only to the temple but to an area of two miles.
“Next came the Cypriots concerning three sanctuaries, of which the most ancient had been founded for the Paphian Venus by its author Aerias; afterward his son Amathus had founded one for Amathusian Venus; and Teucer, fleeing the anger of his father Telamon, one for Salaminian Jupiter. The embassies of other cities were also heard. Wearied by their abundance, and because the parties were contending through partiality, the Fathers permitted the consuls, after examining the right and whether any inequity was involved, to refer the whole matter back to the senate.
“In addition to those cities which I have mentioned, the consuls reported that the asylum of Aesculapius at Pergamum was established. They reported that the others relied upon origins obscure because of their antiquity: the Smyrnaeans upon an oracle of Apollo, by whose command they had dedicated a temple to Venus Stratonicis; the Tenians upon a poem of the same god by which they had been commanded to consecrate an image and temple to Neptune. The Sardians relied upon a nearer grant, that of the victorious Alexander, and the Milesians likewise upon King Darius; but the cults of their deities were, respectively, the veneration of Diana and Apollo. The Cretans also petitioned for the image of the deified Augustus. Decrees of the senate were made which, although highly honorable, nevertheless prescribed a limit. They were commanded to make bronze inscriptions in the temples as a consecrated memorial, lest under the appearance of religion they descend into ambition.”
But nothing was accomplished by these measures, so much so that Tiberius was compelled to abolish every right of asylum. Thus Tranquillus, Tiberius, chapter 37: “He abolished the right and custom of all asylums, wherever they existed.” But the more numerous and more criminal the persons who abused that right were, the more obstinately the people defended them. At Athens, citizens who killed aspirants to tyranny after they had fled to the altar of Minerva were themselves killed by their fellow citizens, because they esteemed privileged superstition more highly than liberty. Thucydides, book 1. The Sicilians spared Ducetius, a traitor to his fatherland, who had fled into a temple. A privilege must therefore be granted slowly, because, although it brings the greatest evils, it is abrogated with the greatest difficulty.
§ 4. Another difficulty also arises because privileges are so fortified that they surround themselves by the very difficulty of abrogating them. They do not cease at the death of the person who grants them. Often those who possess them cannot even renounce them, because they contain the right of another, or magistrates are bound by oath not to yield privileges. Some also have another precept annexed so that they cannot be relinquished voluntarily. Thus, if someone possesses the power of hearing Mass during a time of interdict, he cannot renounce it, because he is bound by another law to hear Mass; and because the privilege has removed the impediment, he is now bound by the law. Next, privileges which are not invidious cannot be removed by prescription; but when others are burdened by them, those persons can prescribe against them, and they set a period of ten years. Third, privileges which are not burdensome to others and in no way prejudice them are lost through nonuse only in the external forum, not in conscience, unless in certain cases the law has disposed otherwise. Fourth, a privilege is not lost, with respect to the whole faculty, through a contrary use, although this may appear to be a tacit renunciation. Finally, it is lost through abuse, as was stated concerning asylum. But in all these matters it is most difficult either to correct the privileged or, after the privilege has been removed, to bring them back under the common law.
§ 5. The abuse of a privilege is manifold.
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It occurs when in actual fact more is done than was conceded. Thus, when a prince has been given the right to levy soldiers for the defense of his territory, he assembles them against neighbors with whom he can contend by right.
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It occurs when he turns the use of the privilege into an occasion for crimes; this was stated concerning the right of asylum. We see this even today: very many murders are committed in those cities where asylums have been established for murderers. The citizens defend those asylums so greatly that it seems they can scarcely be removed without sedition.
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The most customary abuse of privileges is that which conflicts with the end of the privileges. Such today is the privilege in churches by which a two-year course of study is completed at a university. For this it is almost sufficient to have been enrolled at the university and to have passed no night outside the university town; there is very little inquiry into study and morals. A similar privilege provides that those who have arrived by the Epistle, while the office is sung in choir, receive the distributions. This was granted in favor of those who, being occupied, are compelled either to arrive later or to depart earlier. But now the abuse of that privilege is that before the Epistle and after
it they linger in the portico and the church—not without scandal to the Christian people—and suddenly enter at the Epistle, as though they had been hired not to pray but to transact every other business and to seek the reward of irreligious conversation.
Privileges are lost through these abuses. St. Augustine speaks truly in Sermon 247 On Time: “By the judgment of the laws, he who abuses a privilege conceded to him is cast down from the dignity obtained by right.” Yet privileges are removed with difficulty and not without a disturbance of the people. One must therefore proceed cautiously, lest they be given. It is not difficult, under the shadow of a privilege, to do many more things than the force of the privilege permits. Finally, I judge thus: one who concedes many privileges and immunities cuts the strength and sinews of the principate, furnishes matter for seditions, and arms citizens and subjects against justice and the state. But since the abuse of privileges is great, it is necessary that one who, by gratifying many, has burdened many should now gravely offend those same persons or their successors.