ON THE NEW LAW.

ON THE ESSENCE OF THE NEW LAW.

S. Th. I-II, q. 106 and 107.

315. The new law properly and principally is an internal law implanted in us (q. 106, a. 1) : for as natural law is the very light of our reason habitually showing what is good to be done and evil to be avoided, and the very habitual inclination to the good of reason, so the new law is the very habitual grace of the Holy Spirit, written in the heart of the faithful, in which the whole power of the law consists, since from the abundance of the light of faith and of the gifts (of understanding and of knowledge) and of the illuminations of the Holy Spirit it indicates what is to be done in order to eternal life, and from the abundance of love and grace sweetly inclining it also helps to fulfill it.

It is clear from the doctrine of the Apostle who a) Hebr. VIII, 8-10, says the prophecy of Jeremiah (XXXI, 33) about the new covenant or testament is fulfilled : « I will give my law in their bowels and I will write it on their heart » ; whence II Cor. III, 3 : « you are the epistle of Christ (ministered by us) and written not with ink but with the Spirit of the living God, not on tablets of stone but on the fleshly tablets of the heart » ; — b) Rom. III, 27, 31, he calls the very grace of faith a law, and as an internal one he sets it over against the old law of exterior works ; — and c) VIII, 2, he calls it the law of the spirit of life, i.e. of the Holy Spirit internally giving life (for the spirit of life is something internal), which frees us from the law of sin and of death, i.e. from interior concupiscence, which the old law, as external, could not overcome. Cf. John VI, 44, 45 and Is. LIV, 13.

Secondarily however the new law is an external and written law, inasmuch as by words and writings it instructs the faithful about those things to be believed and done which dispose to grace or regard its use.

From which it follows that the new law justifies by its force according as it is principally the very grace inwardly given, but not according to the precepts which secondarily pertain to it (a. 2).

316. The new law ought not to have been given from the beginning (a. 3), 1) because it is principally the grace of the Holy Spirit, which ought not to be given abundantly except after the redemption by Christ has been accomplished (John VII, 39 ; Rom. VIII, 3) ; 2) because it is perfect : something ought not to be brought to perfection at once but successively, and therefore an imperfect law had to precede (Gal. IV, 24) ; 3) because it is the law of grace, and therefore it was fitting that man be left to his own powers in the Old Law, so that, falling into sin, knowing his own infirmity, he would acknowledge that he needs grace (Rom. V, 20).

317. The old and new law are one in species inasmuch as they tend to one thing, that men be subjected to God and have eternal life (q. 107, a. 1-4) ; they are however two in degree of perfection inasmuch as the Old is imperfect, the New however perfect because it is the law of charity and friendship with God.

Hence 1) the New fulfills the Old (Mt. V, 17) because the perfect completes what is lacking to the imperfect : a) as to the end, which is the justification of men, which the old law could not effect but prefigured and promised to be effected by the new law ; b) as to the precepts : for Christ not only confirmed the moral precepts of the law but also exposed their true sense by showing that interior acts are also forbidden by it, indicated how they would be more surely observed, and added counsels of perfection (Mt. V-VII) ; — 2) the New is contained in the Old as the tree in the seed ; — 3) the New is less burdensome than the Old (Mt. XI, 28), both in number of precepts, because it adds few positive external [precepts] to natural law, and in the easiness and delightfulness of love by which it is fulfilled : for although it prescribes the manner of acting according to the perfection of virtue and even prescribes justice in every interior affection, these things however are not burdensome to those who love God and have justice.

Whence the new law is altogether spiritual : a) it has a spiritual and eternal sanction (Mt. X, 28) ; therefore it calls blessed those who are poor, who mourn, who suffer persecution, because their reward is copious in heaven (Mt. V, 3-12), and denounces temporal goods as an impediment which retards us from the kingdom of heaven (Lk. VI, 24-25 ; Mt. XVI, 26) ; b) it is a spiritual kingdom, to enter which faith in the Gospel, love of God and neighbor, imitation of Christ, denial of self are required (Mt. V, 48) ; c) the worship which it promotes, although it must be manifested externally, must be pre-eminently internal (John IV, 23). Hence the ancient sacrifices, which consisted principally in external immolation, are abolished and in their place succeeds the sacrifice of Christ, who offers not only his body, but his soul, in most perfect obedience (Hebr. X, 5-7). Which he wishes also his disciples to offer as spiritual hosts¹ (I Pet. II, 5 ; Mt. VI, 1).

318. The new law was solemnly promulgated on the day of Pentecost, in the presence of Jews from every nation ; on which day it began to oblige in Jerusalem, but in other regions successively according to the time necessary that the knowledge of the law might morally come to them of itself. Which however is commonly believed to have been sufficiently done for the world then known about 40 years after the death of the Savior (at the time of the destruction of Jerusalem) : for then the sound of the Apostles had gone out into all the earth (Rom. X, 18). — Not however for this reason was the law divulged, since its knowledge had not yet in fact come to all.

ON THE POWER OF THE NEW LAW.

S. Th. I-II, q. 108 ; q. 106, a. 1, ad 1 ; a. 4.

319. The new law must order exterior acts (q. 108, a. 1 and 2). — For although it is principally the grace of the Holy Spirit, it is nevertheless fitting that it hand down certain precepts not only about interior acts, but also about exterior ones, so that it may be a true law (Mt. V, 17 ; XXVII, 20 ; C. Trid. sess. 6 can. 19, 20 and 21). And indeed it contains :

1. Some ceremonial [precepts] about sacraments, for the very reception of grace (e.g. John III, 5) : for we have grace through the Son of God made visibly man, whence grace flowing from the incarnate and visible Word into us must be brought to us through visible signs, which are the sacraments and sacrifice ;

2. Also moral precepts about the acts of the virtues, both internal and external, which dispose to grace or pertain to its use :

a) precepts about the acts which are necessary as a disposition for the reception and preservation of grace, whether as to the intellect, such as the knowledge of the principles of the truths of faith or of the preambles about the manifestation of the divinity and humanity of Christ ; or as to the affection, namely those things which pertain to contempt of the world without which man is not capable of the Holy Spirit (John XIV, 17) ;

b) precepts about the acts which are necessary for the right use of grace, not only about interior ones which are grace itself and charity internally ordering us to God and neighbor ; but also about external ones which are produced by the instinct of grace : for grace is operative through charity, and therefore it must also manifest itself through external works (Eph. V, 8 ; John XII, 36 ; Mt. X, 13), of which some have a necessary convenience with or contrariety to grace, and these are prescribed or forbidden, e.g. confession and denial of faith (Mk. XVI, 16 ; Mt. X, 32 ; XXV 19, 20 ; John XVI, 9) and several others handed down in Mt. V, 22 sq.

3. Other works however which are not necessary for grace, are not precepts : if they regard the individual they are left to his liberty ; if they regard the common utility they are left to temporal and spiritual superiors. And therefore besides the moral and sacramental precepts, no other ceremonial or judicial precepts are given, but are left to the Church.

Hence, in distinction from the old law, which is called the law of servitude, the new law is called the law of liberty, not only a) because by it we are freed from the servitude of sin (Rom. VI, 18), but also b) because the new [law] obliges only to those things which are necessary to be done for salvation or avoided as contrary to it, and leaves other things to liberty, and is not like the old, which determined many ceremonial and judicial [precepts] and left only a few to the choice of men (Acts XV, 1 ; Gal. V, 1) ; c) because it makes us freely fulfill these precepts, not by fear and a servile spirit, but inasmuch as by the interior instinct of grace and love we willingly fulfill them.

320. The new law conveniently orders interior acts, so that men may be totally subject to God (q. 108, a. 3). — For Christ in the sermon which he had on the mount, 1° promised blessedness for various excellent works ; 2° ordered the interior acts of man as to himself : a) about the means, that we abstain not only from external evil works but also from interior ones and from the occasions of evils ; b) about the end, that we not place it in human glory, or riches, or pleasures ; whence he proposes three contrary good works : prayer, almsgiving, and fasting ; 3° ordered the interior acts of man as to his neighbor, that we not judge rashly or unjustly or presumptuously, nor trust the unworthy too much ; 4° teaches the manner of fulfilling the law, by imploring divine help, by making effort for virtue, and by caution against seducers (Mt. V-VII).

321. In the new law, which is the law of liberty and perfection, counsels are fittingly added about those things which are necessary, not for attaining the end, but in order that we may attain it better and more expeditiously (q. 108, a. 4). For man is placed in the middle between worldly and spiritual goods, so that the more he cleaves to some, the more he withdraws from others ; and although for happiness it is not necessary that man totally abandon earthly things, because he can use them according to reason, he will nevertheless attain it better and more expeditiously by totally renouncing those goods. Now :

1° The goods of this world are of a threefold kind : a) riches to which the concupiscence of the eyes incites, which the counsel of poverty proposes to be renounced (Mt. XIX, 21) ; b) pleasures of the flesh about which the concupiscence of the flesh is concerned, which the counsel of virginity or continence teaches to be renounced (Mt. XIX, 11-12 ; I Cor. VII, 25-40) ; c) honors which the pride of life pursues, and which we renounce by perfect obedience (q. 108, a. 4).

2° Likewise the disquiet of worldly solicitude is chiefly thrust upon man about three things (Lk. VI, 24 ; IX, 23 ; XII, 22) : a) about the dispensation of exterior things, and this solicitude is removed from man by the counsel of poverty ; b) about the governance of wife and children, which is cut off by the counsel of virginity ; c) about the disposition of one's own acts, which is cut off by the counsel of obedience by which one commits oneself to the disposition of another (cf. C. Gent. III, 130).

3° Finally man has a threefold good : a) the good of exterior things, which one totally offers to God by voluntary poverty ; b) the good of his own body, which he offers by perfect chastity ; c) the good of soul, which he totally offers by obedience by which one gives to God his own will, by which man uses all the powers and habits of the soul (II-II, q. 186, a. 7).

322. The new law is universal (q. 106, a. 4). For :

a) it is imposed on all men (Mt. XXVIII, 18-20 ; Mk. XVI, 15-16 ; Rom. I, 16) ; but some precepts are immediately obligatory, e.g. of believing and receiving Baptism, others mediately, namely for the baptized, e.g. the precept of confession and communion ;

b) it is imposed for all subsequent times, because no more perfect [law] can be, since 1) it immediately joins men to God and introduces them to the ultimate end (Hebr. X, 19-20), 2) it causes grace itself through sacraments which truly sanctify, and 3) has a sacrifice of infinite dignity. And surely there cannot be given in this life a more perfect divine law or religion, since a greater union of man to God cannot be devised : for he here became man and by the incarnation united himself to us, that he might make us gods and unite us to himself through the life of grace, which he nourishes and increases in us by uniting his flesh and blood with us in the Eucharist, that we may be united to him by perfect vision and intimate possession of himself in heaven. So in the religious order the greatest is attained as to God, greater than which something cannot be devised. Whence

c) the new law cannot be changed by anyone, nor can the Church properly dispense in it but only authentically interpret it in the name of God ; and it shall endure until the consummation of the age. Hence in Scripture it is called a stable kingdom (Mt. XVI, 18 ; XXVIII, 20), the last time (Acts II, 17 ; I John II, 18), a covenant to remain forever (Jer. XXXI, 40 ; Mal. I, 10-11 ; Hebr. XIII, 20 ; Mt. XXVIII, 20), a new and eternal testament (Mt. XXVI, 28 ; Lk. XXII, 20 ; Hebr. XIII, 20 ; IX, 20).

The new law therefore differs from the old law : 1) by reason of efficient cause, because it is from Christ not only as he is God but also as man (Hebr. I, 1) ; 2) by reason of formal cause, because it is principally grace and charity which he gives ex opere operato, while the old law gave the knowledge of precept and of sin, but not indeed the aid ; 3) by reason of material cause, because it is enacted for all and forever, and perfectly declares the precepts, adds counsels, imposes few external ones, but many internal ones which are nevertheless easy of fulfillment from grace ; 4) by reason of final cause, because it immediately procures eternal happiness.

SIXTH PART.

ON ECCLESIASTICAL LAW.

323. Ecclesiastical law is an ordinance of human reason by which the Church and the baptized faithful are directed by him who has care of them, to holiness and eternal life. For as civil law is necessary for determining natural law and governing the people in order to temporal happiness, so ecclesiastical law for determining, instilling, completing natural and divine law, and urging it with an added special sanction of penalty, and so governing the Christian people in order to the ultimate end. It is not surprising therefore if many things said about human law in the present [section] are applied¹.

It is also called canonical law, from the 8th century onward, from the canons which are set against civil laws already in the Council of Ancyra (314) and of Nicaea I (324) ; likewise sacred human law, both by reason of the authority which is constituted by Christ (by divine law), and by reason of the matter which excludes temporal things as such, and by reason of the end because it is for the sanctification of souls. Hence it is a derivation, imitation, and supplement of divine law.

ON ECCLESIASTICAL LAW IN ITSELF.

On the Author of Ecclesiastical Law.

324. All who enjoy a perfect public power of governing, or political jurisdiction, in a perfect community or a part of it, can enact laws. In the Church power, by the will of Christ, by divine ordinary right, belongs to the Supreme Pontiff (Mt. XVI, 19. John XXI, 15-18) and to bishops, (Mt. XVIII, 18 ; XXVIII, 20) ; by ecclesiastical right it can be granted to others. But power is distinguished as ordinary, had by virtue of one's own office ; and delegated, by special commission of him who has ordinary power¹ (c. 197, § 1). Hence those who enjoy a) ordinary perfect jurisdiction in the external forum can enact laws :

1. The Sovereign Pontiff for the whole world and any part of it (c. 218), either alone, or with others, e.g. the Roman Congregations, by whose help he prepares or issues decrees which he himself confirms ;

2. A Council : ecumenical (c. 228) confirmed by the Roman Pontiff (c. 227) for the whole Church ; plenary for its territory (c. 290), e.g. national for the nation, provincial for the province ; but the decrees of particular councils cannot be promulgated before they have been recognized by the Sacred Congregation of the Council (c. 291, § 1) ; likewise a diocesan synod for the diocese (c. 356) ;

3. The Bishop for his subjects, even outside the synod (c. 362) ; likewise, the see being vacant, the chapter of the cathedral Church (c. 429 and 431) or the consultors (c. 427) and the capitular vicar (c. 435) : although it is not expedient, unless to urge laws previously enacted or unless it is necessary in a very long vacancy, yet in such a way that « nothing be innovated » (c. 436) ; likewise those who exercise episcopal jurisdiction, such as prelates nullius and exempt for the territory subject to them (c. 323) ; likewise vicars and apostolic prefects for their region (c. 294), and apostolic administrators permanently constituted (c. 315) ;

4. Religious orders and exempt clerical religions in the general chapter (c. 501, § 1) ;

b) or jurisdiction delegated by the Pontiff : legates, nuncios, etc. for the region to which they are sent and according to the tenor of the concession and of their faculties ; — likewise vicars general by special delegation of the bishop ;

c) but not those who lack such jurisdiction :

1. the rectors of inferior communities : of parishes, monasteries, sodalities, universities, of a non-exempt religion (c. 501, § 1), etc., whose statutes however can have the force of obliging by pact or vow of the subjects, or by dominative authority, or by the will of the legislator ;

2. the general superiors or general chapters of a lay religion even exempt, because only clerics can obtain jurisdiction in the Church (c. 118) ;

3. abbesses or superioresses : for although by domestic authority they can prescribe, no power of jurisdiction however belongs to women in the Church.

On the Matter and Quality of Ecclesiastical Law.

325. The matter of ecclesiastical law in general. — The matter of human law are all the acts whose positing or omission can contribute to the common good, even those which in themselves are indifferent, inasmuch as they can be ordered to virtue or to vice. The common good which the Church intends is the worship of God and the supernatural sanctification of men ; whence it can enact laws about those things which pertain to the spiritual life, such as faith, Christian virtues, remission of sins and indulgences ; about those things which regard worship, such as sacrifice, sacraments, prayers, vows, oaths, processions, pilgrimages, ceremonies, feast days ; about persons of sacred life set over spiritual life and worship ; about temporal goods necessary to provide for all these things.

Moreover in all these matters law can either instill natural and divine law (e.g. by forbidding heresy, by prescribing Baptism), or determine what they leave indeterminate (e.g. annual confession, paschal communion, Sunday, fasting), or impose what is conformed to them (to celebrate Christmas), or prescribe and forbid what they permit (to abstain from meat, from servile or forensic work), or urge all these by an added special sanction of penalty (e.g. excommunication), and also add conditions for the validity of the act, established by natural, divine, or ecclesiastical law (so for religious profession, for matrimony e.g. that it be celebrated before the parish priest).

326. In particular, what acts can be prescribed. — On the part of matter ecclesiastical law, as being human law, must prescribe acts which are

1. generally honest, i.e. not contrary to a superior law, e.g. natural or divine,

2. specifically just, i.e. not opposed to anyone's right,

3. contained within the scope of the legislator's jurisdiction : for subjects are bound to obey superiors according to the reason of superiority ; whence besides jurisdiction in the superior, competence is required, i.e. power in the particular matter about which the law is concerned ; 4) useful for the common good. Such of themselves and regularly are only acts

a) morally possible and accommodated to the powers of men ; otherwise the law would not be conformed to reason nor would it promote the common good, but would more often be an occasion of sins. Note however that the judgment about the difficulty of the law belongs to the legislator, not to the subjects, otherwise action would be taken about laws ; moreover arduous and heroic acts can be imposed on those who have freely chosen the state to which they pertain (such as perpetual continence to priests and religious, perpetual enclosure to nuns, missions to missionaries in places of barbarians), or also when the public good requires it (e.g. the administration of sacraments by a parish priest in time of plague) ;

b) future : for to prescribe, forbid, permit past acts, or if irrevocable to invalidate them, would be useless ; likewise past acts cannot be punished unless they were already forbidden by some law, nor revocable acts invalidated or persons made unfit or incapable for past acts, unless because of the great necessity of the common good : for always the good of a part must yield to the good of the whole. Hence can. 10 : « Laws regard future [acts], not past, unless in them provision is expressly made about past ones » (cf. can. 2226, § 2 and 3, and 2222). But a law not constitutive of new right but merely declaratory of older right can affect past acts ;

c) external which alone put us in relation to society and alone directly pertain to external government.

327. Can internal acts be prescribed? — Many recent [authors], in distinction from the older, prefer to extend the legislative power of the Church to merely internal acts¹. This they assert without foundation. For :

1. As the power of the internal forum directly and immediately regards the internal sanctification of individuals, so the legislative power of the external forum of itself first tends to external and common government, for society, even ecclesiastical, is a visible and external body.

But merely internal acts are not fit matter for such external government. Therefore. And truly human law, since it is enacted for the community, affects individuals insofar as they are parts of a visible society, and communicate socially among themselves ; whence social power is necessarily of the external forum. But merely internal acts do not pertain to social communication : for by them we do not communicate with others. Therefore internal acts cannot of themselves and directly be the object of human law and of social power.

2. The legislator cannot enact laws except about those things about which he can judge and which he can compel, otherwise the law would be useless and inefficacious for obtaining its effect ; whence legislative, judiciary, and coercive power are of the same order, as parts of one integral power of jurisdiction, which therefore of themselves are contained within the same limits. But the human legislator cannot judge or punish except external acts. Therefore neither can he prescribe except external ones².

3. Whence Innocent III : The Church does not judge about hidden things.

Hence legislative power of the internal forum cannot be conceived except as vicarious of God and to be exercised in the name of God ; but from revelation or the practice of the Church no trace is given of such a power granted by God. For the words of Mt. XVI, 19 and XVIII, 18 are to be understood with a restriction according to the nature of the thing, and they are only general within the breadth which is always assigned to a human legislator ; otherwise they would also prove that the Pontiff can dissolve natural or divine law, or enact law in temporal and civil matter.

Therefore a) it is not proved that ecclesiastical law can prescribe merely internal acts, and it is certain that it does not do so ;

b) it can directly reach all external acts even hidden ones ; for external acts are of themselves and by their nature public and are only accidentally occult ; but law regards those things which are done of themselves and commonly ;

c) it can indirectly reach all internal acts which are the form of external ones and are joined with them, whether necessarily and of themselves, or also accidentally, provided they in some way manifest themselves externally : by this very fact they are reachable by law. Thus is reached 1° the internal cause of an external act, e.g. the will to fast is also prescribed and the will to eat meat is forbidden ; likewise 2° the condition necessary so that the external act may have its species, validity, honesty, and even special morality, e.g. intention in an oath or sacrament or sacrifice, attention in prayer, sorrow in contrition, intention of obligating oneself in a contract, consent in matrimony, the qualities so that acts (e.g. confession or communion) are good (cf. prop. 14 damned by Alex. VII and 55 damned by Inn. XI, and c. 907 and 861) ; 3° likewise the special motive or accidental end for which the act is to be placed : Mass to be celebrated for the flock, prayer for rain, for the souls in purgatory, etc. : it is namely a condition of the public act as it is intended by the Church³.

328. Remark. — Although by legislative power the Church does not reach merely internal acts, it can however reach them by another power ; and indeed

1. it can attach a favor to an internal act, e.g. an indulgence, as it did to meditation on the way of the cross ;

2. it can in the name of God interpret natural and divine law even as to merely internal acts, to which we are then bound not by the force of ecclesiastical law, but by the force of the superior law : thus in the name of God it can remit vows or oaths even internal ones ;

3. it can in the name of God in the internal forum of conscience absolve from sins even internal ones and prescribe even merely internal ones, e.g. pious meditation ;

4. it can, through superiors, prescribe internal things to religious, by the force of the vow of obedience, e.g. mental prayer, examination of conscience.

On the Formation of Ecclesiastical Law.

329. Ecclesiastical laws can be formed like other human ones : either by an imperative act of the legislator demanding observance from the subjects, or by the observance or custom of the subjects to which the consent of the legislator is added.

Formerly many ecclesiastical laws were introduced by custom, of which more were already committed to writing ; but even today custom has force to introduce law, as will be explained in q. 3, art. 7, but always with the consent of the legislator (can. 25) ; these laws are called customary law.

Now however laws are ordinarily constituted by the imperative act of the legislator ; whence these laws are called constituted law, which ordinarily is written.

It is fitting to the nature of constituted law a) that the superior not enact a law without the counsel of the prudent, whence Pontiffs are accustomed to consult congregations, and bishops have the counsel of the chapter, indeed a diocesan synod is to be celebrated at least every ten years (can. 356, § 1), in which nevertheless the bishop alone is the legislator, the others having a merely consultative vote (can. 362) ; — b) that it be expressed in clear and brief words by him who intends to oblige and in the language of the society to which it is directed, such as is Latin in the Western Church ; — c) that it be proposed in writing by which better provision is made for the clearness of the law ; which can be done under various forms of decree, letter, codex or collection, also of response and sentence, although these two are more suited to interpreting a law already enacted than to introducing a new one, indeed under the form of instruction, which is however rather a declaratory norm and a directive rule to be observed as an accessory completing the law, in which nevertheless some secondary points can be imposed by prescriptive ordinance. No determined form however is to be observed of precept in the formation of laws.

330. Ecclesiastical laws take various forms. Today are enumerated

1. apostolic constitutions which are issued in the name of the Roman Pontiff or proceed immediately from him, in the more solemn form of a Bull, and concern graver matters ;

2. apostolic letters which are issued under the form of a Bull or under the less solemn form of a Brief, for less grave matters, especially of the governing or administrative order ; letters are called encyclical when they are directed to the bishops of the whole world, or to a notable part of them, e.g. at least of one or several nations ;

3. decrees or general decrees which the Roman Pontiff either in an ecumenical council or through the Roman congregations prepares ;

4. decretal epistles or responses which take their occasion from another's relation (to a consultation or petition), and rescripts by which another's petition is satisfied (can. 36 sq.) ;

5. consistorial allocutions which are given by living voice in consistory : for the external forum they are authentic, if they are reduced to writing and consigned by officials ;

6. code of Law or collection of the principles of the disciplinary laws of the Church, whose prescriptions are distinguished not by articles as civil law, but by canons ;

7. decrees of particular councils ;

8. statutes, by which are rather designated laws enacted by an inferior power, e.g. episcopal or dioces statutes, or ordinances of the internal government of moral persons, e.g. chapter or religious statutes.

331. The manner of promulgating laws, as of forming them, has been various as employed by the Pontiffs :

a) for the first 12 centuries, they promulgated their constitutions, sending them into the provinces, through clerics of proved fidelity, either to individual bishops, or to metropolitans or patriarchs, who took care to transmit the same to the bishops ;

b) at the beginning of the 13th century, they began to promulgate authentic collections of canon law, sending them with a Bull to the more celebrated academies : so Innocent III, in the year 1210, promulgated his collection of decretals by letters directed to the University of Bologna ; c) as that century was waning, they ordered certain Bulls to be promulgated by affixion in the place of their residence, at Rome especially (e.g. on the doors of the Church of the Lateran ; of St. Peter's Basilica in the Vatican and of the Apostolic Chancery, or on the field of Flora), with this clause that such promulgation sufficed for the law to obtain its full force : so Martin IV, in 1281, issued a Bull against Michael Palaeologus, and in the same way Boniface VIII was used against Philip the Fair.

Such promulgation done in a central place such as Rome suffices for the law to have the force of obliging : for the city is the chief of the whole world which has immense communication with the whole world, to which almost all nations come together, in which not only kings have their legates but almost all prelates have their procurators who can make them aware of new laws ; whence a new law promulgated there is very easily divulged.

That manner of promulgation was thereafter generally retained by the Supreme Pontiffs, without however ever being the only one : for some were accustomed to be promulgated by transmission to nuncios, metropolitans, bishops, etc., as encyclicals and decrees issued by congregations ; or also by promulgation in individual dioceses or even parishes, as was done for the decree of Trent concerning clandestine marriages and was wont to be done for a penal, irritant law, removing jurisdiction, or for constitutions which regard a part of the Church.

d) Now however Pius X ordained (Const. 29 Sept. 1908) that an official commentary be published (Acta Apostolicae Sedis), in which he wished inserted and issued to the public and by this means promulgated pontifical constitutions, laws, decrees and other enactments of the Roman Pontiff and of the Sacred Congregations and Offices, whenever promulgation is needed, and otherwise it has not been provided by the Holy See. Which the Code ratified, can. 9 : « Laws enacted by the Apostolic See are promulgated by publication (i.e. not only insertion but publication or some bringing out to the public) in the official commentary of the Acta Apostolicae Sedis, unless in particular cases another manner of promulgation has been prescribed ».

332. When does a promulgated law begin to oblige. — By the promulgation of a general law done at Rome, the law obliges at the time designated by it, which if none is designated (as formerly often had place), some have said it obliges immediately i.e. the next day ; — better others [say] gradually after a time sufficient for divulgation, more or less according to the distance of places ; — others finally not until after two months and indeed everywhere even in the place of promulgation : for the time in which the law can in a human manner come to the ears of the subjects is to be fixed by the judgment of the prudent, which formerly was fixed in Roman law at two months ; therefore it is to be adhered to where time is not determined. But this fixing is not shown to be applicable to the laws of the Church ; then the Roman Curia declared guilty of transgression of the law those neighbors before the lapse of two months ; and on the other hand there are many regions to which after two months the knowledge of the law could not always come ; finally that fixing does not seem able to be made for all times even those in which the means of divulgation will become much easier. Whence the 2nd opinion seems true, the last was held probable by many, the first is altogether improbable.

Now however a time has already universally been designated, and can. 9 of the Code holds : « Laws enacted by the Apostolic See are promulgated... and exert their force only after the completion of three months (« as they are computed in the calendar from the first day » can. 34, § 3) from the day which is attached to the number of the Acta, unless by the nature of the thing they bind immediately or in the law itself a shorter or longer vacatio has been specially and expressly established ».

By the nature of the thing laws bind immediately which concern matters of faith and morals, damn books and place them in the Index, or declare those things which suffer no delay and are to be applied at once.

333. On the promulgation of particular laws, such as are episcopal [laws], the common law has nothing, whence they are left to be determined by the judgment of the legislator. They can be promulgated by public reading in the cathedral church, by the voice of a herald in the public square of the city, by affixion in a public place designated for this, by insertion in the diocesan gazette, or also by public decision in synod (can. 335, § 2 and 362). They oblige at once, unless otherwise declared. — The same nearly holds for the laws of particular councils (can. 291, § 1).

334. For the value or obligating force of ecclesiastical law of itself is not required :

A. Acceptance of the subjects properly so called approbative, or acceptance of law, i.e. consent to the observance of the law enacted or the will of submitting oneself to it. For the ecclesiastical legislator has the power granted by Christ himself, not by the community or subjects, to be exercised independently of their consent ; and therefore he can and generally wishes to prescribe independently of such consent (C. Flor. ; Trid. sess. 14, c. 7 ; Vat., c. 3). Hence is not required : 1) acceptance by the people ; nor 2) for a pontifical law acceptance by the bishops, or for an episcopal law acceptance by priests of the second order : the bishops however, if a pontifical law is harmful for their own subjects, can and ought to make the Pontiff aware of this and to beseech him to derogate from it, at which time of supplication the obligation is probably suspended by epikeia, until the Pontiff has definitively judged ; nor 3) a fortiori is required the consent of the secular power (placet). Cf. C. Vat. c. 3 ; enc. Quanta cura 1864 ; Syll. prop. 28, 41, 49 ; const. Apost. Sedis, tit. I, n. 7 and 8.

B. A fortiori is not required executive and improperly so called acceptance of fact, for the value to be attributed to the law, or the very actual observance of the law and its being brought into use.

It can however be necessary for preserving the force of law, not directly but indirectly. For if the superior is not able to obtain the fulfillment of the law from the greater or healthier part of the community, it can be fitting that he not urge the observance of the law : for by urging it he can be an occasion of ruin to the subjects without fruit. In which case the obligation does not fail directly from the non-acceptance of the people, but indirectly from the tacit or presumed consent of the legislator, who is considered not to wish the ruin of souls if he does not urge the law. But when such a law is considered to be revoked cannot be determined generally, but is left to the judgment of the prudent.

335. Remark. — Definitions of the Church regarding natural and divine law, and the simple interpretation of existing ecclesiastical law, oblige at once and are known, because they do not need promulgation, since they are not new laws.

On the Division of Ecclesiastical Law.

336. Division of ecclesiastical law. — Ecclesiastical law is partly liturgical, which directly governs the acts of divine worship, partly disciplinary, which directly regards the morals of the faithful : this latter in the stricter sense is called canonical.

Each was gradually elaborated, both from the prescriptions of the Pontiffs and Councils, and from use and custom afterwards confirmed by writing.

Thus especially for liturgical law, which already from antiquity was consigned to books. What concerned Sacrifice was contained in the Roman and Gallican Sacramentaries, in the Antiphonals or Graduals, in the Lectionaries, Epistolaries and Evangeliaries : from which three the Missal was later made up. As to the Divine Office, there existed the Psalter, Antiphonal, Hymnbook, Book of Holy Scripture, Homiliary, Collectar, etc., from which various [things] were taken and united in the Breviary. For the administration of the Sacraments, are found Rituals, which were also called Manuals or Agenda.

Today liturgical laws are contained in 5 authentic books : the Missal, Breviary, Ritual, Pontifical and Caeremonial ; and in the decrees and declarations of the Sacred Congregation of Rites (can. 253). For certain things however the Ceremonial Congregation holds (can. 254) ; and for the rites of the Eastern Churches, the Congregation for the Eastern Church (can. 257).

Disciplinary law however existed at various times under various forms ; recently the law of the Latin Church was codified. About which some more particular things are conveniently noted

337. Division of older law. — Canon law was slowly formed in the course of centuries. Before the most recent codification of law, it was distinguished into old law, which extends from the age of the Apostles up to the 12th century, i.e. up to the Decretum of Gratian (1140-1150) ; new law, which extends from the Decretum of Gratian up to the 16th century or to the Council of Trent (1545-1563) ; and most recent or post-Tridentine law.

A. Old law. In the first centuries there existed syllogae and collections of canons especially published by Councils, e.g. by the Nicene, then also systematically formed. About the middle of the 12th century, however, the Benedictine monk Gratian gathered all the canons into one and undertook a new and unique ordering of ecclesiastical laws, which was afterwards called the Decretum of Gratian, and by which he laid, as it were, the foundations of the study of canon law.

The Decretum is divided into three parts : a) the first consists of 101 Distinctions, and each distinction contains several canons or chapters ; b) the second part is divided into 36 Causes, the causes into questions, and the questions into canons ; c) the third part, which treats of Consecration, i.e. of rites and sacred things, is distributed, like the first, into Distinctions and canons.

B. New law is contained in the Corpus of canon law. It contains

1° The Decretum of Gratian which, although emended, is nevertheless not authentic, and therefore has no other authority than the sources themselves from which it was drawn.

2° The Decretals of Gregory IX which by command of this Pontiff were published by S. Raymond of Pennafort O.P. (1234). This collection is truly authentic and has per se the force of law ; it contains the epistles of Gregory IX and of some predecessors, and the Pontiff wished that only those be used in courts and in schools. It contains Five Books which are divided into titles, and the titles into chapters.

3° The Sixth Book of the Decretals of Boniface VIII, which this Pontiff added (1298), with the same force and authority authentically attached as to the preceding. It has the same divisions as the collection of S. Raymond.

4° The Clementine Decretals, collected by Clement V and authentically promulgated by John XXII (1317), so that they have the force of law.

5° The Extravagants of John XXII, so called because they wandered outside the previous collections, collected and published by private effort, in 1325, they do not have the force of law as a collection, but only from the documents themselves which truly proceed from pontifical authority.

6° The Common Extravagants, in number 70, of other Pontiffs, collected by private authority about the end of the 15th century : they do not enjoy authentic value as collections but only the value of the documents themselves.

C. The most recent law is contained in the decrees and canons of general Councils, especially of Trent and the Vatican, in the Constitutions of the Roman Pontiffs, in the Declarations of the Sacred Congregations and Tribunals of the Roman Curia and in the Rules of the Apostolic Chancery.

To which almost innumerable laws now happily succeeds the Code of Canon Law, which was undertaken by Pius X, and was solemnly promulgated by Benedict XV on the feast of Pentecost of the year 1917, so that it would have the force of obliging from the day of Pentecost of the following year, i.e. from 19 May 1918.

338. Division of the new codified law. — The Code of law is divided into five parts or books :

The 1st book treats of General Norms, especially about Laws, Rescripts and Privileges, and Dispensations.

The 2nd book treats : of Persons, especially of Clerics in general and in particular, of Religious and of Laity.

The 3rd book is : about Things, namely about the individual Sacraments in particular, and sacramentals, about Sacred Places and Times, about Divine Worship, about the Ecclesiastical Magisterium, about Benefices and Ecclesiastical Institutes, and about the Temporal Goods of the Church.

The 4th book treats of Processes, namely of Trials in general and in particular, of Causes of beatification and canonization, and of the Manner of proceeding in certain affairs to be examined.

The 5th book finally is about Delicts and Penalties.

339. The value of the Code is indicated by the Code itself.

Can. 1 : « Although in the Code of canon law the discipline of the Eastern Church also is often referred to, it itself however regards only the Latin Church, nor does it bind the Eastern [Church], unless it concerns a right which from the nature of the thing itself also affects the Eastern [Church] ».

Can. 2 : « The Code, for the most part, decrees nothing about the rites and ceremonies which the liturgical books, approved by the Latin Church, prescribe to be observed in the celebration of the most holy sacrifice of the Mass, in the administration of the Sacraments and Sacramentals and in the performance of other sacred rites. All of which liturgical laws retain their force, unless some of them be expressly corrected in the Code ».

Can. 3 : « The canons of the Code do not in any way abrogate the covenants entered into by the Apostolic See with various nations, nor do they derogate from them ; these therefore continue to have force just as at present, and the contrary prescriptions of this Code are by no means to stand in the way ».

Can. 4 : « Rights acquired by others, likewise privileges and indults which, granted by the Apostolic See up to these times to physical or moral persons, are still in use and not revoked, remain intact, unless they are expressly revoked by the canons of this Code ».

Can. 5 : « Customs at present in force against the prescriptions of these canons, whether universal or particular, if indeed they are expressly reprobated by the canons themselves as corruptions of law, are to be corrected, even if they are immemorial, nor are they to be allowed to be revived in the future ; others, which indeed are centenary and immemorial, will be able to be tolerated, if the Ordinaries, for the circumstances of places and persons, judge that they prudently cannot be removed, the rest are to be held as suppressed, unless the Code expressly provides otherwise ».

Can. 6 : « The Code for the most part retains the discipline hitherto in force, although it brings opportune changes. Therefore :

1° Any laws, whether universal or particular, opposed to the prescriptions of this Code, are abrogated, unless it is expressly provided otherwise about particular laws ;

2° Canons which entirely reproduce the old law are to be judged from the authority of the old law, and therefore from the interpretations received among approved authors ;

3° Canons which agree only in part with the old law, insofar as they agree are to be judged from the old law ; insofar as they differ, they are to be judged from their own proper sense ;

4° In doubt whether some prescription of the canons differs from the old law, one is not to depart from the old law ;

5° As for penalties, of which no mention is made in the Code, whether spiritual or temporal, medicinal or, as they are called, vindictive, latae or ferendae sententiae, they are to be held as abrogated ;

6° If anything from the other disciplinary laws, which have been in force up to now, is contained neither explicitly nor implicitly in the Code, it is to be said to have lost all force, unless it is found in the approved liturgical books, or the law is of divine right, whether positive or natural ».

ON THE POWER OR OBLIGATION OF ECCLESIASTICAL LAW.

340. Thesis. Ecclesiastical law as such is truly moral, i.e. does not import mere coercion, but obliges in conscience and before God, even under grave [matter].

It is of faith from the Council of Constance, sess. 8, prop. 8, 11, 12 and 15 against Wyclif, and sess. 15, prop. 12 and 15 against Hus, and from the bull of Leo X against Luther, and from C. Trid. sess. 7, can. 8 on Baptism ; that the obligation is grave is clear from the universal preaching and practice of the Church of urging certain laws under grave [matter].

It is proved : a) Ecclesiastical law is enacted by a power granted by God, imposed in the name of God by his minister and sanctioned, whence those bound by it on earth are also bound in heaven, and those who despise the ministers, despise Christ (Mt. XVI, 19 ; XVIII, 17-18 ; Lk. X, 16).

b) Human law obliges in conscience so that he who resists the natural human power acquires damnation for himself (Rom. XIII, 2) ; a fortiori ecclesiastical law which is made by a supernaturally constituted power.

c) Whence in Scripture the faithful are often admonished about the religious obedience to be rendered to pastors (Acts XV, 28-29 ; II Cor. X, 6 ; I Thess. IV, 2, 8 ; II Thess. III, 14 ; Hebr. XIII, 17).

d) And so the common sense of the faithful holds, e.g. as to hearing Mass, abstinence from meat.

It is said 1) as such, i.e. not only inasmuch as it contains and applies natural and divine law. For the texts cited are altogether general, the obligation arises from the sole divine origin of the power, not from a presupposed similar divine precept, and several things are instilled by the Apostles which are in no way comprised by natural and divine law ;

2. even under grave [matter] : for those things which are necessary for human society, such as obedience toward authority, of themselves oblige under grave [matter], in grave matter.

On the Quantity or Gravity of Obligation.

S. Th. II-II, q. 105, a. 2.

341. The gravity of obligation in ecclesiastical law depends on two things : on the gravity of the matter and on the will of the legislator, who at least must have the implicit intention of obliging under grave [matter]. Whence

a) if the matter is in every respect, even in end and circumstances considered, light, the law cannot oblige under grave [matter] : for such matter is not capable of grave obligation, nor can the legislator make it so that light matter which contributes little and influences lightly the end or common good, contribute much and influence gravely, or that small disobedience be great ; otherwise such a law is not conformed to reason, nor would it tend to the common good, but rather would be an occasion of ruin ;

b) if the matter is grave and the legislator intends to oblige under light, the obligation is only light : for in distinction from natural law, in which the obligation and its gravity necessarily and immediately arise from the very gravity and necessity of the matter, the proximate and immediate cause of obligation in positive law is the will of the legislator ; so great therefore is the obligation as the legislator wills, and just as it depends on him whether the law exists and obliges, so whether it is grave or light. And although by so acting the legislator can sometimes sin, the obligation however, because it is the effect of his will, does not extend beyond what he has willed.

342. The gravity of matter is estimated by reason of the end and of the aptitude for this end :

A. Matter is indeed grave, when it is an efficacious means for a great good, namely when the special or proximate end is of great moment as to the common good, very useful, morally necessary, and at the same time that which is prescribed by the law greatly contributes to obtaining the end. Such is the dignity of sacred worship, the service of God, penance, the sanctity of the clergy, etc. to which the use of sacred vestments, the observance of feasts, abstinence from meat, celibacy greatly contribute. Whence a thing in itself light can be grave matter, as was the eating of the forbidden fruit in paradise by reason of the acknowledgment of God and of the subjection of man to God : so e.g. entering a house by reason of scandal or danger, mixing water and wine by reason of the representation of the great mystery in the sacrifice.

B. On the contrary, if the special end is not of great moment, or if it is of great moment and the action does not greatly contribute to the end, the matter is light ; thus to the glorification of God the order between the various hours of the breviary does not greatly contribute.

343. Practical rules for discerning grave or light obligation.

A. Positive law obliges under grave [matter], when the matter is grave, i.e. greatly contributes to an end of great moment, and at the same time the legislator wishes to prescribe under grave [matter].

B. But the legislator wishes to oblige under grave [matter]

a) if he uses gravely threatening or more severe words, e.g. if he commands in virtue of holy obedience, under the indignation of God, under the threat of the divine judgment, etc.

b) if he imposes a grave penalty, e.g. of death, mutilation, perpetual prison, exile, deposition, privation of honors, censure, irregularity, reservation, privation of ecclesiastical burial (can. 2218 § 2) ; for the penalty, in order to be just, must be proportioned to the offense ;

c) if in grave matter he uses ordinary words : we command, we prescribe, we forbid, etc. and does not express that he wishes to oblige under light, nor is this gathered from the circumstances, especially e.g. from the excessive burden which the law would impose, he is considered to oblige under grave [matter] : for he is reasonably presumed to act reasonably and ordinarily to oblige according to the capacity and exigence of the matter. Nor must he explicitly intend grave obligation : just as he must not explicitly intend obligation in conscience but make a law, and so implicitly wills the obligation, in the same way by prescribing grave matter, he is considered implicitly to wish to prescribe under grave [matter] ;

d) if the custom and usage of the faithful and the practice of the God-fearing so interpret the law ;

e) if the prudent, pious and learned so unanimously judge.

C. If there is doubt about these, the law is considered to oblige under light, unless the legislator urges it under grave [matter], because then the presumption stands for him.

On the Quality and Extension of the Obligation of Preceptive Law.

344. Preceptive or moral law is that which prescribes some good to be done or forbids some evil to be avoided. The observance of this law is not always an act of that species and virtue to which the matter of itself pertains, but of that from whose formal motive the law is enacted : for virtues and good human acts are distinguished by the formal object or motive. Thus fasting of itself is an act of abstinence, and the Lenten fast which is prescribed from such a motive, but the fast before communion is an act of religion which is imposed from the formal motive of religion. Whence he who transgresses the precept sins against that virtue from whose motive the precept is enacted.

From these it follows that the transgression of the precept is only a sin of formal disobedience if it is done from a special motive of obedience, but not in other cases, unless the transgression be from contempt. No ecclesiastical law seems to be enacted from a special motive of obedience.

345. Preceptive law founded on a presumption of law is that which rests on a reasonable conjecture or probability drawn from the circumstances often connected with the truth. For presumption is a probable conjecture of an uncertain thing (can. 1825 § 1) : thus e.g. a law obliging to abide by the judgment of a judge which is presumed to be just, to the execution of a contract which is supposed to have been validly entered into unless the contrary be proved ; likewise a law by which a boy is considered to have the use of reason from the age of seven (c. 88 § 3), an adolescent to know what matrimony is¹ (c. 1082 § 2).

Another is founded on a presumption of a particular fact when the superior presumes a fact, e.g. damage, fraud, consent, negligence not in general for the most part but in any particular case to exist, and therefore enacts a law for all similar cases : thus in the examples given ; — another is on a presumption of common danger when he presumes from such a work or manner of acting for the most part, ordinarily and commonly, damage, fraud, scandal, etc. to follow, and therefore forbids it, e.g. reading bad books : the fraud or scandal or damage is not supposed, but the danger of them.

The first of itself does not oblige, if the presumption in a particular case is false, because then the foundation of the law, which is the presumption of this particular fact, is lacking ; hence you are not bound to pay money for damage falsely presumed.

Whence the saying : the judgment is the same in the forum of conscience and in the external forum, is true in cases in which the external forum does not rest on a false presumption of a particular fact. Accidentally however in the external forum we are bound to obey, by reason of public order and of scandal, but then we can compensate ourselves secretly (even after the judgment of the judge) ; but we cannot obey if the thing be illicit, as if someone were to pay or render what is due in a marriage certainly invalid which is presumed valid in the external forum.

The second of itself always obliges, even in particular cases in which damage or its danger does not intervene, because the foundation of the law remains.

a) For the superior did not enact the law because he presumes damage in every case, but because he presumes it to be so commonly for men ; therefore as long as the common danger remains, so long does the law itself remain.

b) Otherwise the common good requires that no exception be admitted, otherwise evils to be avoided would not be efficaciously prevented because easily each one would persuade himself that in his regard there is no danger, which false persuasion the law intends to prevent, and likewise to render men diligent in avoiding damages. Thus ecclesiastical law enacted to prevent the general danger of perversity or spiritual detriment, just as civil law to prevent the general danger of negligence.

c) In other words : the law ceases only if the end ceases adequately, i.e. totally and with respect to all. But in the case, even if the danger does not exist for the individual, it persists for the community. Therefore the law does not cease. For its end is to avoid the common danger ; now the common danger cannot be efficaciously and certainly avoided if the law is not urged absolutely and for all, since easily each one would persuade himself that the danger is not present for himself, from which the end of the law would be frustrated.

Whence just as civil law, to prevent the general danger of negligence, obliges one guilty of merely juridical fault to repair the damage, e.g. to pay for damage caused by a dog without moral fault, by which law the judgment of danger is withdrawn from the subjects ; — so also ecclesiastical law obliges when it prohibits religious profession before the age of 16, invalidates clandestine marriage, prohibits mixed marriages or books placed on the Index, even if it is established that no fraud, or defect of liberty, or damage is present. Which doctrine is already confirmed by can. 21.

346. Law founded on a fiction of law is not to be confused with law founded on a presumption².

For presumption is a reasonable conjecture in an uncertain matter, but a fiction of law is a provision whereby the legislator from a just cause establishes the same for a feigned case as another law does in a true case, e.g. that canons absent from the choir because of infirmity are considered as present as to the daily distributions (can. 420), or that the marriage by which previous offspring is legitimated is considered valid from the time of its conception or birth (can. 1117), or that offspring born in a marriage which is afterwards proved null is considered legitimate (can. 1114), or that an invalid marriage, if healed in the root, is considered valid from the beginning (can. 1138).

Presumption therefore rests on verisimilitude, fiction on equity ; — presumption is assumed in a doubtful case according to verisimilitude, fiction in a certain case contrary to truth.

Such a law, if it be just, obliges in conscience.

Note however that 1) fiction has place only in cases expressed in law,

2. fiction ought not to operate more in the feigned case than truth in the true case,

3. it does not hold beyond what is expressed in the law : thus for the deceased and the heir the unity of person is held as to the inheritance, not as to other things,

4. finally it is to be strictly interpreted.

347. Permissive law is not the absence of law nor mere license or simple tolerance, but a true law which positively acknowledges in man an internal, or at least external or juridical, liberty or capacity for doing something. Such a law obliges others not to impede the aforesaid acts, and judges not to punish them. Likewise a concessive law of rights obliges others not to deprive them of those [rights] or to impede them from legitimate action. It is not however a merely prohibitive law for others, but grants a special right, concedes a faculty or capacity.

On the Quality and Extension of the Obligation of Penal Law.

348. The Church, since it has a public coercive power, can also establish penal laws (can. 2214) which oblige to undergoing even a graver penalty (can. 2291), whether they be merely penal laws, or mixed, i.e. moral and at the same time penal.

In fact, merely penal pontifical laws are not given, for the penalties inflicted in Canon Law all suppose true fault (can. 2215) ; however they are wont to be given in religious orders and institutes, and can be given in diocesan laws.

By reason of the manner in which the penalty is imposed, one is latae, another ferendae sententiae (can. 2217).

1° A penalty ferendae sententiae is one which is not incurred by the very fact but must be inflicted by a judge or superior, or which is established to be inflicted by a condemnatory judgment of a judge to be rendered later.

Such are those designated a) by words of future time : shall be excommunicated, will be excommunicated, etc. (c. 2315, 2321, 2328) ; b) by threatening words or requiring the ministry of a judge : under penalty, under the threat of excommunication, we have judged to be denounced, let him know that he will incur excommunication, will be forbidden the entry of the church, must be excommunicated ; c) by ambiguous words which do not sufficiently indicate a penalty of latae sententiae, e.g. let him be subject to excommunication, let him fall into excommunication, let him lose his place : for laws which establish a penalty are of strict interpretation (can. 19), whence according to can. 2219 : « in penalties a more benign interpretation is to be made », unless however the context indicates otherwise.

2° A penalty latae sententiae is one which is incurred by the very fact of the offense committed, that is to say by the very fact that the transgression of the law or sin is committed.

Such are those enacted a) by words which exclude another's ministry : by the very fact, by the very law (c. 2217), by that very fact (c. 2365), without another judgment ; b) by words of past or present time : he is excommunicated, we wish, let him know or be aware that he is excommunicated, we have excommunicated, by our authority or by the force of these presents let him be excommunicated, from now we have excommunicated ; c) by imperative words of the penalty itself, which indicate that the guilty party is here and now affected by the penalty : let him remain suspended, let him be anathema, excommunication holds (c. 2388, § 2).

If this requires for its execution an external executive action either of the delinquent himself or of another, and has a physical effect, ordinarily it requires a declaratory judgment of the judge : so for positive penalties of exile, scourging, prison, fine, or privative [penalties] of a good already possessed, namely of an acquired right, e.g. in confiscation of goods, deposition, degradation, privation of a benefice or office held, or of dignity acquired. On the contrary if it requires no external action, consisting in a moral effect alone, it is incurred immediately : thus penalties privative of a right or of the exercise of a right, e.g. spiritual privative [penalties] (censures), or negative penalties by which a good otherwise fully to be acquired is denied to the guilty party (e.g. irregularity from offense), or an incapacity for something is contracted, e.g. canons culpably omitting their office lose the right of receiving the fruits.

The condemnatory and declaratory judgment differ : the first falls upon the penalty itself and therefore the penalty is owed from the day of the judgment ; the second falls not on the penalty itself but upon the committed crime by declaring that it was committed, and therefore it is declared that the penalty was contracted and the owed penalty is retroacted to the time of the crime committed. Whence can. 2232, § 2 : « the declaratory judgment retroacts the penalty to the moment of the crime committed ».

349. Penal law, after transgression, obliges in conscience the judges to inflict the penalty, at least if the law uses not facultative but preceptive words (can. 2223, § 3) ; and the subjects to undergo it.

Before the judgment of the judge : 1° if the penalty is ferendae sententiae, they are not bound to undergo it until by the judgment of a judge they have been condemned to it : for the law does not inflict the penalty but decrees that it is to be inflicted ; whence it is even licit by honest means to avert the penalty to be inflicted and to escape ;

2° if it is latae sententiae and requires an external executive action, ordinarily they are not bound to undergo the penalty before the declaratory judgment. The reason is that the law must be morally possible and accommodated to human nature ; for it would be too harsh and inhuman if it compelled the guilty party so that he should be bound to despoil himself of his goods and rights.

Are excepted a) if the penalties are lighter or such as judges cannot inflict, such as fasting, recitation of prayers, moderate bodily chastisement, not leaving the assigned place, abstinence from foods ; b) if they are conventional.

3° if it requires no external executive action (e.g. censure, irregularity), it is incurred from the moment the crime to which it is attached is committed, and from this moment (apart from the danger of infamy) it obliges the subjects to undergo it without the judgment of a judge.

In the external forum however it is not held to be contracted without the declaratory judgment of a judge, unless the crime is notorious. — I said : apart from the danger of infamy (which is usually absent in the privation of active or passive voice), because if such danger exists and the delinquent cannot observe the penalty without infamy, the privative penalty would be equated to a positive penalty (can. 2232).

After the judgment of the judge : 1) the guilty party is obliged to execute the penalty himself, if it is not too harsh nor much repugnant to nature, e.g. to pay money that is exacted, to go to prison not long-lasting, for he is bound to obey a just and morally possible precept ;

2. he is obliged only to undergo the penalty without positive resistance, when it is very grave or repugnant to nature, although he can negatively resist by fleeing. This is a general principle in human law even civil ; e.g. one condemned to death is bound to mount the scaffold, to offer his neck, etc., yet he can flee. For no one is bound to perform such a penalty, but to suffer it, whence no one is bound to furnish that from which death, wounding, public scourging, perpetual prison, perpetual exile follows, and e.g. to remain in a place from which he would be led to death ; but he is bound to suffer it, i.e. not to resist him who inflicts it.

350. A conventional penalty is distinguished from the aforesaid penalties by which, when something, e.g. a benefice, is given to someone under a tacit condition that he do something, with the condition not fulfilled, what was granted is taken from him. It obliges by the very fact without the judgment of a judge, e.g. a parish priest, who formerly could be a deacon, not ordained to the priesthood within a year lost the benefice ; a bishop not receiving consecration within 3 months does not receive the fruits (C. Trid. sess. 23, c. 2), and neglecting this within 6 months, he remains deprived of the episcopate by the very law (can. 2398).

351. Remarks. — 1) Can. 2219, § 1 : « In penalties a more benign interpretation is to be made ».

2. Can. 2219, § 2 : « But if it is doubtful whether a penalty, inflicted by a competent superior, is just or not, the penalty must be observed in both forums, except the case of appeal in suspensive ».

There is no appeal in suspensive from a censure judicially inflicted (can. 2243, § 1), there is from vindictive penalties, unless it is otherwise expressly provided in law (can. 2287).

3. Can. 2219, § 3 : « It is not lawful to extend a penalty from person to person or from case to case, although an equal, indeed graver reason is present, saving however the prescription of can. 2231 », namely the case where several have concurred to the perpetration of one crime whether physically or by common consent or by command or in another manner, if the crime otherwise would not have been committed : these are bound by the same penalty unless the law expressly provides otherwise.

4. The judge can diminish and increase the penalty, for a just cause, if he himself is the legislator ; an inferior however cannot unless it is permitted by the law. So in the new law, according to can. 2223.