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 ».