§ 1. A privilege is, as it were, a private law, or a law conceded to a private person. It is defined as a power conceded by law to someone or to several persons to act or not to act, or to receive or not to receive, beyond common law. It is a great matter, and one from which very great harm can be brought upon the state unless careful provision is made.
§ 2. There are various kinds of privileges.
- One privilege is divine, another human. Very many divine privileges were conceded to the ancient priesthood. The rest are human, such as those military privileges of the evocati, that, like the others, they should be exempt except for repelling the enemy.
- Affirmative and negative. By the latter one is freed from some burden; by the former one obtains the faculty of acting.
- Personal and real. The latter adheres to things themselves, the former to persons.
- Gratuitous, which is given from benevolence alone, and remunerative, which is given in consideration of merits.
- That which is against right and that which is beyond right.
- Conventional and without an agreement, or pure.
- Perpetual and temporary; favorable and odious. Every privilege is favorable, but here we call favorable that which results in no harm to another third person, and odious that which harms others.
- Of one person or of a community which is nevertheless part of another state.
- In the internal and external forum.
- By concession and by custom.
- Ecclesiastical and civil.
§ 3. A state which has the power of establishing law can also concede privileges contrary to the law; one which lacks this faculty cannot concede privileges. Therefore, privileges are given only to one’s own subject or to one who is subject in some manner. Thus many concede privileges within their territories to neighboring cities and distant merchants, because in some part they are superiors.
§ 4. That privileges be given to the well deserving pertains to the good of the state. For virtue is aroused by honor and reward, and very many are sharpened for the defense of the fatherland. The Roman state, as the mother of soldiers, was especially liberal. The primary privilege was not to be drawn into the ordinary forum but to be judged by their own commanders.
Gregory of Toulouse enumerates very many of their privileges in book 19 of the Syntagma, chapter 16. Privileges were also conceded to the persons of soldiers, of which take some: namely, that ignorance of the law, or an error in an exception which was to be proposed in its proper place but was omitted by a soldier before sentence, should have restitution to the original condition. In other solemnities also introduced by law, the military office
relieves them, since it is more expedient for soldiers to know arms than laws. Another privilege of military service is found in Juvenal:
Let us treat, he says, of the advantages—first those common to all, among which this will be by no means the least: that no man in a toga dare strike you, or show the praetor his knocked-out teeth and the black lump upon his face with swollen bruises, and so forth.
The sons of chief centurions follow their father’s condition, and sons born from officials are summoned to the military service of their parents. Immunities from burdens and offices were conceded to veterans in all places: from civil duties, public works, contributions, and tolls which are furnished at fairs; so that they should neither be permitted to serve if they wished nor compelled to serve against their will; should be struck by no incongruous injuries; and should be separated from others in punishments, so that they should not be given to the beasts or beaten with clubs. The same honor is accorded to veterans and their children as to decurions. They are excused from the construction of ships and are not appointed collectors of taxes. If, however, veterans have permitted themselves to be enrolled in the order of decurions, they are compelled to perform the offices by their tacit consent. But if they have not been selected into the order, but voluntarily undertake some office of the city, they ought not from this to be compelled to undertake others. Veterans do, however, undergo tolls and the customary burdens of patrimony, such as the paving of a road and the compulsory service of ships.
Veterans lose their privileges if they have devoted themselves to brigandage. Nobility is especially favored when illustrious men are produced from it and when they serve as soldiers, so that in a trial concerning injuries they are not compelled to be present, but can conduct the lawsuit through a procurator. They can also by agreement give their inheritance inter vivos, although among civilians an agreement concerning it is disapproved. And certainly, when the affairs and condition of military service are reduced to the truth, scarcely any other persons seem to me worthy of privileges or greater compassion, whether soldiers are good or evil, on account of their use. Indeed, the worse and more savage are better for this office. Philemon says:
Στρατιῶτα, κοὐκ ἄνθρωπε, καὶ σιτούμενε
ὥσπερ ἱερεῖον, ἵν’ ὅταν ᾖ καιρὸς τυθῇς.
That is:
O soldier, not a human being, who are fed like sacrificial victims, so that when the time comes you may be sacrificed.
And they must be incited by privileges to meet death, which all flee by nature. And thus, by the privileged life and death of criminals, the safety and goods of good human beings are preserved with slight detriment. There are equally good and strenuous soldiers, who are occupied for the safety of the state and are rightly honored with privileges as well deserving; others are allured by the same privileges to deserve well.
The cause was that military service was difficult, dangerous, and laborious: to dig a trench, carry a rampart, and pass one’s life with slender provisions and under the harshest laws.
§ 5. Nevertheless, as formerly, so now also there have been abuses of privileges, and enormous disadvantages have arisen. For first, this is discerned in every kind of privilege: real privileges, while they are handed down through families and successions, gradually tend toward this, that they acknowledge no prince and obey in nothing. Personal privileges are less lasting, but they become cheap through their multitude, and persons upon whom too many are heaped generally fall headlong and are oppressed by their mass. Remunerative privileges are less odious but generally make men ungrateful and proud. Conventional privileges belong properly to sale, and recipients do not place among benefactions even those which they acquired for a small price.
Those which they call odious—that is, those which derogate from the right of others—must especially be guarded against. Thus, when immunity from tolls and public offices is given to many, it is necessary that the rest be burdened more heavily. Therefore Valentinian and Theodosius ordained that soldiers of the unarmed service should not be immune from public functions. But those privileges concerning forum and jurisdiction have now been removed, for they are summoned for civil matters and drawn for criminal matters to diverse judgments. For what will a soldier not dare when about to plead a bad cause before a centurion and companion in plunder? Hence so many extortions, exactions, and insults against provincials.
Next, privileges derogate from common law, either expressly, when the words themselves declare it, or in fact. Although common laws protect themselves and frequently possess an appended clause by which they remove all privileges conceded to the contrary, nevertheless privileges often elude the law together with the clause itself. But there ought to be a great cause for laws to be diminished by a privilege. For what is not observed by many, and by the more honorable, according to right, is easily contemned by all. For example, certain nobles possess a privilege that they should not be drawn into chains because of debts. Many use it, contract great debt, and moreover insult their creditors; others imitate them and cause the good faith of contracts to lie wholly prostrate.
§ 6. Since odious privileges, and those which tend to burden others, are to be restricted so that they endure for the least possible time and obtain the fewest possible effects, nevertheless, through the importunity of the privileged, they are frequently extended contrary to the norm of right to correlative persons and to others. And what is dangerous to kings when affairs or dangers are adverse, many nobles and cities defend themselves by privilege so that they need not be present with aid or labor for common affairs. Those upon whom taxes, ships, grain, soldiers, and money could rightly and deservedly have been imposed now leave room not even for entreaties.
By no other thing more than privileges do slaves gain strength against masters and clients against patrons. Nor do I fear to say that the origin of all the seditions which for two hundred years have shaken the principalities and cities of Germany flowed from privileges, many and great. Formerly, in the age of the emperors, although many cities possessed the right of Roman citizenship, nevertheless the privileges of the Quirites were distinguishing marks of the inhabitants. At last Constantinople was made equal to it. Code, law 1, title 20: “Let the city of Constantinople rejoice not only in Italian right but also in its prerogative,” concerning which see also canon 28 of the Synod of Chalcedon.
§ 7. Although privileges cease for many causes, nevertheless they are revoked with the greatest difficulty, and with greater difficulty the more they incline toward the detriment of the state. For the more of the public good they draw to themselves, the more obstinately they are retained as though most useful. That matter must be explained more fully for the public advantage.
§ 8. A privilege which through a change of affairs is rendered unjust from just must be altogether removed. The emperors did this even in private possessions. Constantine ordained that a possessor should not be obligated to fiscal offices, law 11, title 25, Code: “It is our pleasure that our private possessions be immune from all sordid offices, and that neither their lessees nor their coloni be summoned to extraordinary offices or any superindictions.”
Valens removed this privilege in the same place: “For the sake of relieving the provincials, we wish our private estate to sustain canonical necessities under the condition under which we wish all
persons to sustain them. But occasion has exceeded the command, since grain which must be carried from diverse places is not drawn to the customary places, but is carried so far that conveying it is burdensome and harmful. Therefore, let Your Spectable Sincerity cause those remaining in the same places to fulfill the functions of their own by which they formerly furnished grain.”
Honorius and Theodosius declared that those works were not sordid: “Far be it from us to number among sordid offices the construction of a public road and the works of bridges and paved roads, dedicated under the titles of greater princes. Therefore, no class of human beings, and no one by the merits of any dignity and veneration, ought to be exempt from the construction and repair of roads and bridges. We gladly enroll even the divine houses under so praiseworthy a title.”
Theodosius and Valentinian nevertheless restored them again: “Excepting the patrimony of our piety, whose revenues indeed we very frequently assign to public necessities, we judge that all possessors ought to acknowledge the functions in the titles imposed above without exception of any benefice.”
Privileges are taken away from the idle. When the cause ceases, the effect ceases: law 13, π., On Adoption; final law, π., On Testamentary Guardianship. Through neglect of letters and dissolution of life, students fall from their right. See Horatius Lucius, On the Privileges of Scholars.