Definition
A faculty is a license, authority, or special privilege granted by a competent superior authority permitting a person to do something that the law would not otherwise allow. The term carries distinct meanings across legal contexts:
1. Ecclesiastical law (primary legal meaning): A license granted by a bishop or other ordinary — typically through the consistory court or the ordinary's deputy — authorizing an act that would otherwise be prohibited by canon law or church regulation. Classic examples include permission to marry without the customary publication of banns, to erect or remove a monument in a church or churchyard, to install a pew, or to make structural alterations to consecrated property. The faculty operates as a dispensation from the normal legal restriction; without it, the act is unlawful even if no one objects in practice.
2. Scots law: A power founded on consent, as distinguished from a power founded on property rights. Scots law treated this distinction with some technical precision, differentiating between rights that arise from ownership and powers that arise from a grantor's express authorization.
3. General legal usage: More broadly, any special privilege or dispensation conferred by a superior authority — ecclesiastical, civil, or institutional — enabling the grantee to exercise a power not generally available. Anderson's formulation captures this well: "a special privilege or license granted to a person permitting him to do something which otherwise the law would not allow."
Common Language
Modern common usage (Wiktionary): In everyday modern English, "faculty" most commonly refers to the academic staff of a university or college, or to a division within a university (e.g., "the Faculty of Law"). It also retains a general sense of an innate ability or mental capacity.
Historical common usage (Webster's 1913): "Ability to act or perform, whether inborn or cultivated; capacity for any natural function; especially, an original mental power or capacity for any of the well-known classes of mental activity."
The legal meaning is functionally unrelated to either common usage. A researcher encountering "faculty" in historical ecclesiastical or canonical sources should not import any sense of academic appointment or innate mental ability. The legal faculty is an external grant of permission — something received from an authority — not an inherent capacity or institutional role.
Recognized Forms
/SUBTYPES
Bouvier identifies two structural forms of ecclesiastical faculty based on how the grant is held:
- Faculty in gross: Granted to a person and his heirs as a personal entitlement, not tied to any particular property.
- Faculty appurtenant: Granted to a person and his heirs as attached to a specific property — typically a house within the parish — so that the right runs with the land rather than the individual.
This distinction matters for questions of transferability and succession in historical property and ecclesiastical records.
Why It Matters in Research
Researchers working in ecclesiastical law, English church history, or pre-twentieth-century English legal records will encounter "faculty" as a term of art with real procedural significance. The faculty jurisdiction — administered through consistory courts — governed physical changes to consecrated buildings, burial rights, and related matters. English church records and consistory court archives are organized around faculty proceedings; failing to recognize the term as a formal license category will cause researchers to misread the nature and legal effect of documents they encounter.
The term's Scots law meaning (a power founded on consent) is easily confused with property-based powers and should be tracked carefully in Scottish legal texts and equity materials. Burrill's citation to Kames' Equity is the primary historical anchor for this usage.
A further trap: "faculty" in older sources sometimes appears in proximity to terms like "dispensation" and "license" as near-synonyms. They are not fully interchangeable. A dispensation typically relieves from a general prohibition; a license typically permits a specific affirmative act; a faculty in ecclesiastical usage blends both functions but is the specific instrument used in the church court context. Researchers should not normalize across these terms when precision matters.
The Latin maxim preserved in Burrill — *Facultas probationum non est angustanda* ("The power of proofs is not to be narrowed") — is a distinct usage of *facultas* in the evidentiary sense and should not be conflated with faculty as a license.
Historical Dictionary Support
The historical sources converge on the ecclesiastical definition without meaningful disagreement. Black's (both editions), Bouvier, Anderson, Burrill, and Rapalje & Lawrence all define faculty as a license or privilege granted by a superior authority — specifically the ordinary — permitting something law would otherwise forbid. Bouvier adds the most structural detail, distinguishing faculty in gross from faculty appurtenant. Rapalje & Lawrence adds practical context, noting that in English practice faculty was required for monuments but rarely applied for. Burrill is the only source to treat the Scots law meaning with any depth, and his reference to Kames' Equity remains the bibliographic anchor for that usage.
What the historical sources largely omit: any treatment of faculty in civil, administrative, or non-English ecclesiastical contexts. The entries are almost entirely English ecclesiastical in focus, which reflects both the term's primary legal home and the Anglo-American orientation of the dictionaries. Researchers working in continental canon law or comparative ecclesiastical systems should not rely on these definitions without supplementation.
Jurisdictional Note
Faculty as a legal term of art is most alive in English ecclesiastical law and Scots private law. It has limited independent significance in American law, where the established church framework never took root. American researchers are most likely to encounter the term in historical materials, imported English ecclesiastical precedent, or Scottish law sources rather than as a live operative concept in U.S. jurisdictions.