TREATISE ON LAWS

St. Thomas, Ia IIae, from q. 90 to 109.

DISSERTATION I

ON LAW IN GENERAL

St. Thomas, qq. 90, 91, 92.

I say: Law is rightly defined: « An ordination of reason to the common good, promulgated by him who has the care of the community ¹ ». So commonly with the Author. It is explained.

It is said 1° an ordination of reason, namely practical: by which is understood the act of command or rather its term or dictate produced by it, by which the superior prescribes something to be done or omitted. It is also understood an efficacious ordination, indeed not with respect to the work prescribed, since laws are continually violated, but with respect to the obligation which affects subjects, by which it is distinguished from counsel. Likewise it is understood a firm, stable and perpetual ordination, in this sense that it does not cease through the death of the legislator, by which it is distinguished from a precept, nor is it borne to the present alone, but also to those to come, although it could cease absolutely either through revocation, or through change of the matter, or through cessation of the adequate end.

It is said 2° to the common good. For the end of law is the common good: both because law is borne for the community, so to speak, which it directs to a good and honest end, and that end is the good of the whole; and because the end ought to answer to the principle, but the principle of law is public authority. Therefore the end of law ought to be the public and common good. And by this are excluded the mandates of tyrants and others that would be made for proper and private advantage.

It is said 3° by him who has the care of the community: because law is borne for the whole community; for thus the common sense apprehends it, and herein it distinguishes law from precept, which regards one or another, and this is evident by induction. The natural law regards all men; the old law the whole Jewish people; the new law the whole human race; all human laws, both civil and ecclesiastical, are directed to communities. Therefore law must be from him who has the care of the community. Understand a perfect community, which is a multitude of men under the governance of a president having political jurisdiction.

It is said promulgated: because it cannot direct nor oblige unless it becomes known through promulgation. Whether promulgation is of the essence of law, I will say presently.

From what has been said you will infer that law is something of reason ², presupposing however an act of the will. The reason of the first part is 1° because, as was said, it is defined as an ordination of reason; 2° because it belongs to law to command and to direct, but imperium is essentially of reason, as we proved in dissert. III, on Human Acts, art. 4; 3° because law is a certain rule and measure of human acts, but the rule and measure of human acts is reason: whence in Psal. CXVIII divine judgments, words, utterances are called, all of which pertain to the intellect. The reason of the second part is, because law pertains to practical reason and consists in the act of command. But imperium, although elicited by the intellect, nevertheless supposes an act of the will, namely election, from which it has the power and efficacy of moving to exercise. Therefore. Confer dissert. cit. And this is the reason why in Scripture and in law law is sometimes set forth under the name of will.

I suppose that some promulgation is necessary for the law in order that it oblige in act: because, as was said, law is the rule of human acts, and these cannot be regulated by it unless it become known; but it becomes known through promulgation.

I said, some promulgation, because it is different according to the diversity of laws. The eternal law¹ and the natural law is promulgated to each one through the dictate of reason. The positive divine law is promulgated either by internal revelation, as in the prophets, or solemnly, as the old law on Mount Sinai, the new law on the day of Pentecost. Usage, however, has prevailed that human law be always promulgated with some solemnity, and thus reason requires. For since the human legislator bears a double person, private and public, he ought to propose the law in such a way that he signify that he proposes it as a public person, which is done by employing some solemnity.

If you say that promulgation is not required for the revocation of a law, I reply that the revocation of a law is not a law, but the destruction of a law. More is required, however, to constitute a thing than to destroy it. For the reply to the question

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I say: It seems more probable that promulgation is not of the essence of law, but is only a condition required irreplaceably in order that it oblige in act, just as, e.g., the proposal of the object is a condition required irreplaceably in order that it be loved.

It is proved. To the essence of law it suffices that it have an aptitude to direct and to oblige; for the essences of things are defined by first act or aptitude, not by second act, as the philosophers teach. But law before promulgation has an aptitude to direct and to oblige; for it has not this aptitude from promulgation, but its actual direction and obligation as from a condition. Therefore.

It is confirmed. Law is the rule by which we are induced to act, or withheld from acting, with some obligation. But promulgation is not a rule, nor part of the rule, nor does the force of obliging, or actual obligation, proceed from it as from a cause, since this ought to be from a superior as from a cause, but only as from a condition: just as heating is not from approximation as from a cause, but from fire, although it depends upon approximation as upon a condition.

As to St. Thomas, whose mind is disputed, he teaches here a. 4, that promulgation is related to law as the application of the rule to the thing ruled; but the application of the rule is not of its essence, but supposes it constituted. Whence, when he there says that, in order that the law obtain the virtue of obliging, it must be promulgated, he understands the virtue of obliging in second act, not in first act.

[Thus Billuart. But proceeding further and restricting the question to positive law, whether divine or human,

I say: Promulgation is of the essence of law.

It is proved. 1° That without which a thing has not its own being pertains to its essence. But before promulgation the law has not its own being. Therefore promulgation pertains to the essence of law. — The minor is proved. What is only in potency has no being. But so long as the law is not promulgated, it is only in potency. Therefore then it has not its own being. — The minor is evident; for so long as the law is not promulgated, whether it remain hidden in the mind of the legislator, or the legislator have externally manifested his intention of enacting such a law, nothing is perceived except a mere proposal. But this proposal is not law, but only the preparation of the law; and preparation indeed leads a thing toward being, but, until the last act be posited, leaves it in potency. Therefore, so long as the law is not promulgated, it is only in potency.

2° The law is not fully constituted, that is, it is not true law, unless it have the force of obliging. But the law obtains the force of obliging through promulgation, and not otherwise. Therefore, until it be promulgated, it is not true law. — I subjoin. That without which the law is not true law pertains to its essence. But the law is not true law before promulgation. Therefore promulgation is of the essence of law.

3° Law is an ordinance of reason for the common good. But it is not such unless it be made known to the community; and this making known is promulgation made by him who has the care of the community: whence promulgation is contained in the definition of law. Therefore promulgation is of the essence of law; for the definition expresses the very essence.

4° The same is proved by the authority of St. Thomas, here q. 90, a. 4.

The mind of the Master in this place was disputed. Some say with our Billuart: St. Thomas says that promulgation is related to law as the application of the rule to the thing ruled. But the application of the rule is not of its essence, but supposes it already constituted. Therefore the holy Doctor does not place promulgation in the essence of law, but declares only that it is a condition without which the law does not oblige. — If the words of the Angelic Doctor be rightly weighed, his contrary mind will clearly be perceived. In the place cited he solves the following question: « Whether promulgation is of the notion of law? » In the head of the objections the negative proposition is read: « It seems that promulgation is not of the notion of law; » whence whoever has understood the method of the author must straightway conclude that he champions the contradictory proposition, which is equivalent to our proposition; thus he proceeds in the body of the article: « Law is imposed on others by way of rule and measure. But rule and measure are imposed by the fact that they are applied to those things that are ruled and measured. Wherefore, in order that law obtain the force of obliging, which is proper to law, it must needs be applied to men who ought to be regulated according to it. Such application is made by its being brought to their knowledge through promulgation itself. Wherefore promulgation itself is necessary in order that law have its force. And thus from the four things premised may be gathered the definition of law, which is nothing else than a certain ordinance of reason for the common good, promulgated by him who has the care of the community. » This definition is the conclusion of the whole article; and after describing the law in itself and with regard to subjects whose actions he cannot rule and measure unless he reach them through promulgation, St. Thomas places this promulgation in the definition of law. But he would not have assigned this place to promulgation had he not held it essential to law. Therefore he held it as such.

It is confirmed by the axiom of law related above, dist. 4, cap. 3: « Laws are instituted when they are promulgated, » where the promulgation of the law is given as its very institution. Therefore from promulgation the law receives that it is true law. Therefore promulgation is of the essence of law. And this is intimated by Justinian, saying, c. de Legib., in leg.: « The most sacred laws ought to be understood by all, that all, their precept being more clearly understood, may decline what is forbidden and do what is commanded. »

You will say: The law obliges not only those to whom it has already become known, but also those who are ignorant of it, as appears in laws irritating contracts, which produce their effect even toward those to whom they are wholly unknown. Therefore promulgation is not necessary in order that the law oblige. Therefore consequently it is not of the essence of law.

I answer. I deny the consequence. For it is one thing the divulgation of a law, another its promulgation, as the Salmanticenses note, cap. 1, n. 74. For divulgation there is required that the law become personally known to each subject; for promulgation indeed it suffices that it have been notified generally to the community, so that any private person can easily come to know it. Further, the law does not receive its intrinsic virtue of obliging from divulgation, but from promulgation, so that as soon as it has been intimated to the community it binds all subjects at least in the external forum, since all are juridically presumed not to be ignorant of it. A distinction must be made between irritating laws, by which subjects, even though unknowing, are rendered unfit in either forum for determinate acts, on account of the motive of the public good, and laws which render certain acts illicit and bind conscience.

Laws of the latter kind are true laws once they have been intimated to the community, and toward all they hold their obligatory force. But if they have been insufficiently divulged, so that they have not become known to some, although even toward subjects of this kind they rejoice in all the marks of true law, nevertheless they do not bind them in the internal forum, because these are laboring in invincible ignorance, which excuses from formal sin; and respectively toward them such laws ought to be regarded as not promulgated. And in this sense we understood the principle: « A doubtful law is no law, » in our dissertation on moderate Probabilism.

You will ask whether a sufficiently promulgated law obliges all, even those who invincibly are ignorant of it.

I answer. More probably affirmatively: because 1° the law in promulgation is directed not only to those present, but also to the absent. Therefore it comprehends them also. 2° Because, if a credible private person denounce to an absent person a sufficiently promulgated law, he will be bound to observe the law, and will sin by transgressing it. But this obligation does not arise from that private denouncer. Therefore from the promulgated law. Therefore before the denunciation it obliged.

Nevertheless all concede that those who invincibly are ignorant are excused from fault and from punishment for transgressing the law; but if the law were not only prohibitory but also irritative of some act, the act would be invalid even in one invincibly ignorant, as, e.g., clandestine marriage in places in which the Tridentine [decree] is sufficiently promulgated.

I say 1°: Legislative power belongs to the community, or to him who bears the care of the community ¹.

It is proved. To found law belongs to him whose it is to provide for the common good; because, as was said, laws are enacted on account of the common good. Yet to provide for the common good belongs to the community, or to him who has the care of the community; for as particular good is an end proportioned to a particular agent, so the common good is an end proportioned to the community, or to him exercising its functions. Ergo.

But true, because this governing and legislative power cannot easily be exercised by the whole multitude — for it would be difficult for all and singular to assemble at once as often as provision must be made for things necessary to the common good and for enacting laws — therefore the multitude is wont to transfer its right, or governing power, either into certain men from every condition of the people, and it is called democracy; or into few optimates, and it is called aristocracy; or into one only, whether for himself alone or for successors by hereditary right, and it is called monarchy.

This legislative power over Christians, especially the just, the Lutherans and Calvinists deny to the Church, herein following the Waldenses, Wiclif and John Hus condemned in the council of Constance. Against whom

I say 2º: There exists in the Church of Christ legislative power.

It is proved 1° by tradition. The Apostles themselves, Act., XV, 28 et 29,

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enacted the law of abstaining from things strangled and from things sacrificed to idols. And ibid., 41, it is said of Paul: He went about..., commanding them to keep the precepts of the Apostles. From which it is understood that this law of the Apostles was not directive only, as heretics feign, but also preceptive. From the Apostles until now, the Church through holy Pontiffs and councils has founded laws which all the faithful have venerated.

2° By reason. The Church of Christ is a republic well ordered; for Christ did not fail her in anything. Yet in every well-ordered republic there ought to be, for emerging circumstances and necessities, legislative power: otherwise it will collapse. Ergo.

Now this power resides in the supreme Pontiff and general councils legitimately assembled, for the whole Church; in legates, for the provinces of their legation; in bishops, with counsel of chapter, for their diocese; in national and provincial councils, for the nation or province; in general assemblies of religious orders, for the whole order.

[Obj. 1°: Either Christ sufficiently provided for his Church, or not. Second alternative is wickedness of the day. If the first, ergo human laws are superfluous.

I answer. That Christ sufficiently provided for his Church by founding essential laws and leaving to the Church itself the power of founding those which ought to arise from the former, according as he should judge expedient for the common good by exigency of circumstances, persons and places. For it appears that this power is necessary to the Church, that she may be able to rule the Christian people fittingly.

Obj. 2º from heretics and especially Protestants: The Church is a certain college existing within an empire and under territorial power or superiority. Yet any college whatsoever has not the right of founding laws, but is subject to the laws of the empire; for it is repugnant that in the same republic there be two supreme legislators. Ergo.

I answer. I deny the major. 1º The Church is a society, city and kingdom perfect, as it is described in sacred letters and by the Fathers. This society is not confined within the limits of one civil empire, but embraces the whole world, because Christ came into the world that he might save all men, I Tim., II, 4. Whence he willed his Church diffused everywhere to be one, and this association to be bound and joined together with the same bonds in those things which pertain either to faith or to morals. He willed moreover that it be perpetual, and promised that it would endure unto the consummation of the world, Matth., XXVIII, 20. All which do not suffer the straits and instability of temporal empires. 2º Colleges cannot be instituted without permission of the prince, who can suppress them if their affairs and ends pertain to the genus of things committed to him. Yet the Church was instituted, not only without permission of princes, but while they contradicted and strove to destroy her, and the affairs which she has charge of do not pertain to the genus of things committed to the prince. Ergo she is not constituted under the authority of the prince. 3° Indeed two supreme legislators cannot coexist in the same republic, supposed that both powers be exercised in the same genus and have the administration of the same thing. But the genus of both civil and ecclesiastical power differs entirely, because the things committed to each differ entirely. This indeed has charge of sacred and divine things, and watches over spiritual and eternal goods of the faithful; that, governing civil society, studies earthly and temporal goods of citizens. Each therefore is supreme in its own things, each having its parts. Whence it is falsely asserted that a state within a state is constituted, if the Church vindicates to herself legislative power in her own order. Hence Jerome used to say, Ep. 77, ad Ocean., n. 2: « Other are the laws of the Caesars, other those of Christ; another thing Papinian commands, another our Paul. » And Pope Gelasius, in can. Duo sunt, dist. 96: « Two there are by which this world is principally ruled, the sacred authority of priests and the royal power. »]

I say 3°: Legislative power does not depend upon probity of life. Whence every prince holds it, as well secular as ecclesiastical, whether good or evil.

It is proved. Christ himself, Matth., XXII, 21, commanded tribute be paid to Caesar, an ethnic prince. Ibid., XXIII, 2 et 3, he commands obedience to Scribes and Pharisees commanding according to the law, though wicked and impious. The Apostle, ad Rom., XIII, 4 et 5, teaches that princes, even infidels, are ministers of God, and that they must be obeyed, not only because of wrath, but also for conscience' sake. The same, ad Tit., III, 1, and 1 Petr., II, 13-15. Whence the following propositions were justly condemned in the council of Constance, first session, 8: « No one is civil lord, no one prelate, no one bishop, while he is in mortal sin. » It is 13 of Wiclif. The other, session XV: « No one exercises the office of Christ or Peter unless he follow him in morals. » It is 12 of John Hus.

You will ask of how many kinds laws are.

I answer. that they are of fourfold kind ³. One is eternal; another natural; another divine positive, and this twofold, old and new; another human, and this again twofold, ecclesiastical and civil.

DISSERTATION II

ON THE ETERNAL AND NATURAL LAW

St. Thomas, qq. 93 and 94.

[ You will ask 1º whether there is given in God an eternal law.

Resp. affirmatively, and I prove it¹ . Law is nothing else than the dictate of practical reason in the ruler who governs some perfect community. Yet such a dictate is from eternity in God, as in the ruler governing the whole

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community of the universe. Therefore. — Prob. min. The whole community of the universe is governed by divine providence, as stands established 1ª p., q. 22, a. 1 and 2. Yet providence concerning singulars supposes the dictate of practical reason concerning universals, and is inferred from it as conclusion from principles. Moreover the divine reason conceives nothing in time but has an eternal concept, as said of Wisdom, Prov., VIII, 22 and 23 : The Lord possessed me in the beginning of his ways, before he made any thing from the beginning. From eternity I was ordained. Therefore there is given in God from eternity a dictate, etc. ]

You will ask 2° what eternal law is.

Resp³ . Eternal law is nothing else than the reason of the divine wisdom, according as it is directive of the actions and motions of creatures toward the common good of the whole universe.

It is proved ⁴ . As in any artisan there preexists the reason of those things constituted by art, so in any governor there preexists the reason of the order of things to be done through those subjected to his governance: and as the reason of things made through art is called art or exemplar of the things crafted, so the reason of the governor governing the acts of subjects obtains the notion of law, other things being preserved which we said above belong to the notion of law. Yet God is not only through his power creator of all things, to which he is compared as artisan to the thing crafted, as said 1ª p., q. 14, a. 8, c. But he is also governor of all acts and motions found in creatures, as had ibidem, q. 103, a. 5, c. Therefore, as the reason of the divine wisdom whereby all things are created has the notion of art or exemplar, or idea; so the reason of the divine wisdom moving and directing all things to their due end obtains the notion of law.

[ The eternal law therefore differs from the divine idea, insofar

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the divine idea is the exemplar of things to be made, while the eternal law is the order of things to be governed, either inferring necessity upon them, as in natural things, or inducing moral obligation, as in intellectual creatures. They differ with respect to law as conclusion with respect to universal principle; and as in us law hands down rules in general according to which prudence dictates what is to be done here and now, so in God the eternal law hands down rules in general for the government of the whole world, according to which providence, which is part of prudence, disposes in particular concerning the motions of creatures. From which it follows that the eternal law has truly and properly the notion of law, at least with respect to intellectual creatures, since it is an ordination of reason toward the common good by him who has care of the community. With respect however to irrational creatures it does not seem to have properly and strictly the notion of law, because these beings are not capable of instruction and moral obligation, which law strictly taken imports. It has therefore respect to them imperfectly and improperly the notion of law, inasmuch as it directs them in their motions through instinct or natural necessity.

Note that positive divine law, as it is in God the legislator, is the very eternal law inadequately taken, both because it does not extend to so many [things] nor under so diverse a connotate, and because it connotes existing creatures to whom it is intimated. As considered truly in those who direct themselves according to it or publish it, it is a participation of the eternal law and derived from it.]

You will ask 3° whether all other laws are derived from the eternal law.

Resp. affirmatively⁶ .

It is proved 1°. Prov., VII, 15: eternal Wisdom, whose reason is the eternal law, says: By me kings reign and lawmakers decree just things. Rom., XIII, 1 : There is no power but from God.

It is proved 2°. In all subordinate movers it is necessary that the virtue of the second mover be derived from the virtue of the first mover, because the second mover moves not unless insofar as it is moved by the first ⁷ . Yet to govern is a certain moving. Therefore in governors it is necessary that the reason of governing be derived from the first governor to the second ones. And thus we see that the reason of things done in a city is derived from the prince to inferior administrators, and in artificial things the reason of artificial acts is derived from the architect to inferior artisans. — I subsume. Yet the eternal law is the reason of government in the first and supreme governor. Therefore all reasons of government, consequently all laws which are in inferior governors, are derived from the eternal law.

It is confirmed. The eternal law is law by essence, but all other laws are laws by participation. Yet what is such by participation is derived from what is such by essence, as heat in water derived from fire. Therefore.

Laws can be understood to be derived from the eternal law in a threefold manner: 1° As from an exemplar; because all laws, that they be just, must be conformable to the eternal law. 2° As from an efficient cause; because every inferior legislative power is from God, inasmuch as God, instituting human nature as social, conferred upon it governing and legislative power, without which society or community would not subsist, according to that word Prov., XI, 14 : Where there is no governor, the people shall fall. But the community, since it could not easily exercise this power through itself, conferred it upon few or one, as I said in the preceding dissertation. Whence every power is efficiently from God mediately or immediately. 3° Inasmuch as the eternal law, through the mediation of the light of reason or faith, dictates and approves which and when laws are to be instituted on account of the diversity of circumstances, persons, places and times.

[Note, for the solution of objections regarding the natural law, that it can be considered in two ways: 1° Taken materially on account of its foundation, which is the relation of convenience or inconvenience of extremes among themselves, precisely as from the nature of the thing, abstracting from existence: as that to worship God is good and convenient, to lie evil and inconvenient. In this sense the natural law is not derived from the eternal law; for even if per impossibile God willed or understood nothing, to worship God would be good in itself, to lie indeed evil; which is called fundamentally good and evil. 2° The natural law can be taken formally for the dictate of reason judging of that honesty and turpitude of objects in themselves, and at the same time deciding conformably to the eternal law that God is to be worshiped, mendacity however avoided. And in this sense the natural law is derived from the eternal law, because it is a dictate impressed by God, conformable to the eternal dictate as to exemplar.]

D. Thomas, q. 94.

[You will ask 1° whether natural law be given in us.

I answer. in the affirmative.

It is proved. 1° from the Apostle, Rom., II, 14 and 15: The nations who have not the law, namely the Mosaic or Evangelical law, naturally do those things that are of the law. Such as have not the law are a law to themselves, who show the work of the law written in their hearts. From St. Ambrose, lib. IX, epist. 71: « That law is not written but innate, nor is it perceived by any reading, but is expressed in each one by a flowing fountain of nature; » from St. Augustine, lib. II Confess., c. 4, n. 9: « Thy law, O Lord, law written in the hearts of men, which not even iniquity itself erases, » and lib. II de Sermone Domini in monte, c. 9, n. 32: « Who wrote in the hearts of men the natural law, save God? »

It is proved. 2° by reason¹. « Law, says St. Thomas, since it be a rule and measure, can be in someone in a twofold way: in one mode, as in the ruler and measurer; in another mode, as in the ruled and measured, because insofar as it participates something of rule or measure, so is it ruled or measured. Whence, since all things which are subject to divine providence are regulated and measured by the eternal law, it is manifest that all things participate after a manner in the eternal law, namely insofar as from its impression they have inclinations into their proper acts and ends. — But among other things the rational creature is subject to divine providence in an excellent manner, insofar as it itself becomes a partaker of providence, providing for itself and for others. Whence also in it is participated eternal reason, whereby it has a natural inclination to its due act and end. And such participation of the eternal law in the rational creature is called natural law. »

It is confirmed by the intimate sense and testimony of everyone. For there is no one who does not experience in himself some dictate intimating and commanding that good must be done, evil avoided, God adored, parents honored, lying not committed, stealing not done, etc., in all of which, as the Apostle says, Rom., II, 15, their conscience rendering testimony to them. But this dictate is called natural law.]

You will ask 2° what natural law is.

I answer. Among various opinions, it seems truer that natural law is nothing else than the natural light as impressed upon and participated from reason or the eternal law²; because thus are had all things which are wont to be attributed to natural law. 1° It is inborn in us, and found in children and the insane. 2° It is not only demonstrative of good, but also preceptive, because it is impression and participation of the eternal law, consequently empire of superior over inferior. 3° It binds by divine right, because it is immediately from God.

You will ask 3° whether natural law contain more precepts, or only one.

I answer. that it contains more precepts, which nevertheless are founded upon this one: « Good must be done, evil must be avoided »³.

[Precepts of a triple kind are natural, according as there is in man a triple grade of inclination: 1° According to common nature with all beings, there is in him inclination toward conservation of his being, according to which the law of nature commands that sleep, food be taken, destructive things resisted. 2° According to common nature with all animals, there is in him inclination toward conservation of species, according to which there pertain to the law of nature the precepts of temperance concerning acts tending to this end and the education of offspring. 3° According to the nature of reason, which is proper to man, there is in him inclination to truth about God to be known, to immortality, to communication with other intellectual beings: and to this respond the precepts of adoring God, honoring parents, and similar things of religion and justice.]

They are distinguished. again, the precepts of the law of nature into those per se known to all, such as are the first and universal ones: « Good must be done, evil avoided; what thou wilt not have done to thyself, do thou not to another, etc.; » and into those which are more determined and are drawn immediately from the first, such as the precepts of the Decalogue; at length into remoter ones, which are drawn from the first only mediately, such as many which concern contracts⁴.

[Precepts of the law of nature can moreover be distinguished by order to the persons about whom they are concerned; for some are about God, some about neighbor, some about ourselves.

Therefore the law of nature can be said to be manifold and one: manifold, because it contains many and diverse precepts; one, because all precepts are founded on one, as was said, and are ordered to one last end.]

You will ask 4° whether natural law bind all men, even children and the insane.

I answer. in the affirmative. Yet it binds children and the insane only imperfectly and in first act, not perfectly and in second act.

The reason of the first part, because natural law is innate in all, even children and the insane, from nature itself, as was said, so that what children and the insane do against the law of nature is base and unseemly, as if they blaspheme, defile themselves, or do anything like, and no one may induce them to these; which is an open sign that they are comprehended under natural law and bound by it at least in first act.

The reason of the second part is, that children and the insane are not so bound by natural law that, if they transgress it, they sin and incur guilt of punishment, but are excused from sin and punishment, inasmuch as that law is not promulgated to them; for it is promulgated through actual dictate or discourse, whereof they are not capable: consequently it does not bind them perfectly and in second act.

You will ask 5° whether every obligation be an effect of natural law.

I answer. that not every obligation is a proximate effect of natural law, yet that it is a remote effect.

The reason of the first part is, that positive laws, divine as well as human, bind per se immediately, nor will anyone say that the obligation of fasting in Lent, confessing annually, communicating at Easter, believing, hoping, etc., arise proximately and per se from natural law.

The reason of the second part is: Positive law binds therefore, because natural law dictates and prescribes that obedience be rendered to one legitimately commanding, and hence theologians teach that no one turns away from God as supernatural author without turning away from him as natural author; which cannot be verified except because, transgressing the supernatural law, he at once transgresses natural law.

Whether and how natural right is distinguished from the right of nations, you have in the tract. on Right, dissert. I, art. 3.

Again, whether invincible ignorance of natural right could occur? The affirmative solution and ample proof seek in the preceding tract. dissert. V, art. 4.

There remains one question alone, likewise celebrated, although perhaps more of name than of thing is treated in it, namely whether natural law admit dispensation. Whence

Note. Dispensation is twofold, properly and improperly so called. Dispensation properly so called is a relaxation of the law or of its obligation in some particular, made by one having the power, the matter of the law remaining so unchanged that its obligation would remain if the authority of the dispenser did not intervene. Whence, although dispensation supposes some interpretation of the law, it differs from it, in that for interpretation authority is not required, but prudence and knowledge suffice.

Dispensation improperly so called is when the legislator or another so changes the matter of the law that it ceases to be comprehended under the law.

Hence dispensation properly belongs to the legislator or superior; but improper dispensation belongs to the lord of the matter, whether he be legislator and superior or not: thus God, granting the spoils of the Egyptians to the Israelites, acted as lord, not as legislator; thus a private person who remits to me a debt of one hundred florins acts as lord of that debt, not as superior. On the contrary, if God or the Pope exempted someone from the law of fasting or of the sanctification of the Sabbath, he would act as superior and legislator. And thence follows another distinction, that proper dispensation falls directly upon the law, but improper directly upon the matter or debt: so that he who is dispensed properly, e.g., from fasting, is no longer bound by the law of fasting, as others are bound; but he who is dispensed improperly, e.g., in the repayment of a debt which is remitted, or in the taking of another's property which is granted to him by its owner, is always bound, like all others, by the natural law against stealing, or of paying debts; and if here and now he licitly takes another's property or does not pay a debt, it is not because he is exempted from those laws, but because there no longer remains what is another's or a debt, nor consequently the matter of the law. These things, if well weighed, remove the equivocations by which many are deceived in this matter.

I say : Neither can God himself dispensate properly in the natural law absolutely speaking, but well improperly¹.

This is the more common opinion with the Author [St. Thomas], against the Scotists, who hold with their master that God can dispense in the precepts of the second table alone, excepting the precept against lying.

It is proved 1°. God cannot bring it about that things prohibited by natural right, e.g., hatred of God, perjury, homicide, theft, adultery, pollution, sodomy, bestiality, etc., should be licit, honest and not discordant from reason, nor that things commanded, such as the duties of religion, justice, etc., should not be honest and due in their place and time, the matter of the law remaining unchanged. Therefore he cannot dispense properly in the natural law. The consequence is evident from the given notion of dispensation properly so called, which is a relaxation of the obligation of the law, its matter remaining unchanged, so that what before was prohibited, dishonest and illicit, without change of its matter becomes by dispensation honest and licit. — Prob. ant. These enumerated acts and similar ones prohibited by the natural law are intrinsically and by their nature, independently of the will of God, base, evil and discordant from reason. Acts commanded by the natural law are likewise by their nature intrinsically, independently of the will of God, honest and due in their place and time. But God cannot bring it about that what is such of itself, remaining unaltered, should not be such, just as he cannot bring it about that man, remaining man, should not be a rational animal; that fire, remaining fire, should not have heat fitting to it; for he cannot change the natures of things. Therefore.

It is proved 2° from concessions made by the adversaries. 1° They concede that God cannot dispense in the negative precepts of the first table, nor in lying; because, says Franc. de Victoria « ... to dispense, he could do this...; for he could bring it about that someone licitly hate God, commit perjury, blaspheme, worship idols, which are so evil from their intrinsic nature that, whether God wills or not, they always remain evil, inasmuch as they are such independently of his will. » So the praised theologian, disp. I on Law, q. 5, a. 1, concl. 2. — I subsume. But that whole argumentation of theirs is ours for the precepts of the second table, and proves equally for them as for the precepts of the first table; for those, just as these, are so evil from their intrinsic nature that, whether God wills or not, they always remain evil, "inasmuch as [note] they are such independently of his will;" for they are prohibited because evil, and not evil because prohibited. Therefore.

DISSERTATION III. ON HUMAN LAW St. Thomas, q. 95.

You will ask 1° what human law is.

I answer. Human law is rightly defined : « An ordination of human reason consonant with natural law, for the common good, promulgated by him who has the care of the community. » All the parts of this definition, except the second, are evident from the definition of law in general.

It is said therefore to be « consonant with natural law »¹, because every human law is derived from the natural law, not indeed as a necessary conclusion, or as having with the principles of natural law a necessary connection — otherwise it would belong to the natural law itself — but as conveniently and probably deduced from them, and as their determinant.

You will ask 2° whether human laws are necessary.

I answer. That they are necessary²; not indeed simply and absolutely, but so that, the obstinacy, corruption and proneness of men to evil being taken into account, without human laws neither the multitude could have and preserve virtue, nor the commonwealth peace.

You will ask 3° of what sort human law ought to be.

I answer. In the words of Isidore, lib. V Etymol., c. 21ª : « The law shall be honest, just, possible according to nature, according to the custom of the country, suited to place and time, necessary, useful, manifest also, lest through obscurity it contain anything ambiguous, written for no private advantage, but for the common utility of citizens. » And this is received in canon law, dist. 4, c. 2.

You will ask 4° how human law is divided.

I answer. The common and received division of human law is into civil and ecclesiastical. Civil laws are for the most part contained in the body of civil law, ecclesiastical laws in the body of canon law. Concerning both certain things are here to be explained, especially for the benefit of beginners. Whence

You will ask 5° what is meant by the Corpus of canon law.

[I answer. With respect to periods of time, ecclesiastical law, which is called canonical, because it is constituted chiefly of canons or disciplinary rules, is divided into ancient law, new law and newest law.

I. — Ancient law flourished from the beginnings of the Church to the middle of the eleventh century. Its sources and monuments are:

The Canons of the Apostles. Protestants denied that ancient discipline was contained in these canons. Today indeed all learned men confess that they consist partly of rules which the Apostles handed down in words, partly of the customs of churches, partly of the decrees of councils celebrated in the earlier centuries in the East. Since certain things are found in these canons contrary to the tradition of the Church, the Latin Church received only the first fifty, without deciding anything whatever about their origin. But the Eastern Church received and venerated all eighty-five entire, as if issued by the Apostles themselves.

The Apostolic Constitutions. This collection was distributed into eight books. It is undeservedly attributed to St. Clement of Rome and even to the Apostles. Probably it was published in the fifth or fourth century. These constitutions are commended by St. Epiphanius; and indeed, since they are most ancient, they comprise many useful things. Afterwards however they were corrupted by heretics in many places, whence certain authority cannot be assigned to them.

Greek collections. 1° The Chalcedonian collection, so called because mention of it is made in the acts of the council of Chalcedon. It contained, observing the order of times, the canons of the general and particular councils of Nicaea, Ancyra, Neo-Caesarea, Gangra, Antioch, Laodicea and Constantinople I; to which were added, in the middle of the sixth century, the canons of the Apostles, of Sardica, Ephesus, Chalcedon, and the rules of St. Basil. — 2° The collection of John Scholasticus. John, a presbyter of Antioch, surnamed Scholasticus, arranged the preceding canons according to the order of subject-matters, and having been made bishop of Constantinople, added civil laws drawn especially from the code of Justinian. Since he was a favorer of Nestorianism, his collection is suspect. — The Council in Trullo, or Quinisext, so called because it was celebrated in the Trullo of the palace of Constantinople and wished to supply what seemed lacking in the disciplinary canons of the fifth and sixth ecumenical councils. Among these canons the Roman Church sanctioned only those which were not adverse to the laws of the preceding general councils and to approved morals. The rest therefore are destitute of all authority. — 4° The collection of Photius. In the ninth century Photius, author of the Greek schism, annotated the oriental collections, joining imperial laws to ecclesiastical canons, as John Scholasticus had done before; whence arose a new Nomocanon, which among the Greeks has always been held in highest honor and price, although justly suspect to Catholics. — 5° There may be added the collections of lesser moment of Simeon Logotheta, Alexius Aristenus, Arsenius, Harmenopulus and others, of which to speak singly would be long and unnecessary. All these monuments of ecclesiastical law among the Orientals were lately collected at the command of Pius IX by Em. cardinal Pitra.

Latin collections. — 1° At first no canons were acknowledged but those of Nicaea, under which name those of Sardica also were comprehended, because the synod of Sardica was regarded as an appendix of that of Nicaea. — 2° The Isidorian collection was transcribed by Isidore from an ancient Spanish collection. It contains the canons of Nicaea, Ancyra, Neo-Caesarea, Gangra, Sardica, Antioch, Laodicea, Constantinople and Chalcedon. —

3° The ancient version of the Greek canons appears somewhat less ancient, and comprises the canons of Ancyra, Neo-Caesarea, Nicaea, Sardica, Gangra, Antioch, Chalcedon, Constantinople. —

4° At the beginning of the sixth century Denis the monk, surnamed Exiguus on account of his small stature or humility, by nation a Scythian, Roman in manners and dwelling, illustrious for doctrine and integrity of life, published the most famous collection called Dionysian from the name of its author. It is divided into two parts, one of which contains the canons of councils, the other the letters of the supreme Pontiffs. Adrian I pope handed over this collection enriched with certain additions to Charlemagne, and thence it was called Hadriana. Indeed Adrian himself did not add these increments, but since he was seen to have approved the whole work, he conciliated to it great authority; whence collections compacted out of councils were called Conciliatae. In the same collections particular enactments were joined to the canons of councils and the decretals of Roman Pontiffs. Noted especially among the Africans are the Codex Africanus, the Breviatio canonum of Ferrandus, deacon of Carthage, of the year 547; the Canonum concordia of Cresconius bishop, of the year 697. Among the Spaniards, the Capitula of Martin, bishop of Braga, 572; the Collection of St. Isidore of Seville, 636. Among the Gauls, the Codex canonum; the Capitularies, which, enacted in the general assemblies of bishops and nobles, pertained to both regimes; the Panormia of Yves of Chartres, 1117. Among the Germans, the Collection of Regino, 906; the volume of Decretals of Burchard, 1025. Among these books must be reckoned the ritual books and formularies, in which many disciplinary rules are found.

Here, for memory's sake only, must be noted the False Decretals of Isidore Mercator or Peccator, published in the ninth century, the greater part of which was devised and fabricated by the author himself. Whence, although many things in this collection are true and genuine, the name of False Decretals was deservedly fastened upon this work.

He who desires more concerning the foregoing sources of ancient law should consult the canonists.

II. — The collections enumerated above were never reduced into one body, neither among the Orientals nor in the Latin Church. But when about the middle of the eleventh century ecclesiastical learning, and especially the study of law, began to be held in greater honor, it seemed necessary to reduce these diverse matters into an ordered form, and thence came forth the collections of which the Corpus of canon law such as is now taught in schools is composed.

New canon law consists of six parts, which are: the Decree of Gratian, the Decretals, the Sext of the Decretals, the Clementines, the Extravagantes of John XXII and the Extravagantes communes.

1° The Decree was compiled about the year 1150 by Gratian, a monk of the order of St. Benedict, from the sentences of Sacred Scripture, the decrees and responses of councils and supreme Pontiffs, the laws of emperors, the sayings of the holy Fathers and ecclesiastical writers, and Gratian's own commentaries. Many passages are inscribed Palea, concerning which denomination the likelier truth is the opinion of those who hold that Palea is the name of an author by whom canons outstanding in utility and authority were added, which, first placed in the margin, afterwards crept into the context of the book.

The Decree is divided into three parts. The first treats of ecclesiastical persons, and has one hundred and one distinctions, which themselves are divided into chapters or canons. Texts taken from this part are cited thus: c. Placuit, dist. 16; or more briefly: can. or cap. 4, dist. 16.

The second part contains thirty-six causes, in which is treated the matter and form of judgments. But the third cause thirty-three has seven distinctions on Penance. And since causes are divided into questions and questions into chapters or canons, they are cited in the following manner: c. Ecclesiarum 12, q. 2, that is, can. or cap. 69, cause 12, of question 2. But the Treatise on Penance is cited: can. or cap. 19 Charitas, dist. 2 on Penance.

The third part treats of sacred things under the general title De Consecratione. It has five distinctions, and texts are cited: c. Jejunium, dist. 5 de Consecrat., or can. or cap. 25, dist. 5 de Consecrat.

The distribution of matters adopted by Gratian was thereafter preserved in treatises of canon law.

2° The Decretals were compiled at the command of Gregory IX by St. Raymond of Pennafort. They are divided into five books, of which the first treats of judges or prelates of the Church, the second of civil judgments, the third of the affairs of clerics, the fourth of the sacrament of matrimony, the fifth of criminal judgments. All which are contained in this verse:

Judge, judgment, cleric, espousals, crime.

The Decretals are cited thus: cap. 12 de arbitris, or cap. Innotuit, de arbitris. Formerly extra was added, thus: cap. 12 extra, de arbitris; extra, that is outside the body of the Decree.

3° The Sext of the Decretals, so named because this book follows the five books of decretals. In the year 1298, using the labors of William, archbishop of Embrun, Berengar, bishop of Beziers, and Richard of Siena, who afterwards were made cardinals, Boniface VIII collected the canons of the two general councils of Lyons and the decretals of Roman Pontiffs which had been published after the issue of the collection of Gregory IX. From these and from his own constitutions he composed the Sext, which is divided into five books, like the Decretals, preserving the same order of matters and titles. It is cited in the same manner, with the addition, in 6°, v. g.: cap. Nemo, or cap. 11, de electione, in 6°.

4° The Clementines, so called because Clement V ordered the collection of very many constitutions promulgated by him in the council of Vienne, over which he presided in the year 1311. But since, overtaken by death, he could not perfect this work, these constitutions were published by John XXII in the year 1317. They are cited in this manner: Clement., Cum secundum, de poenitentiis; or: cap. Cum secundum, or cap. 1 de ponit. Clement.

5° The Extravagantes of John XXII. Under this title are comprehended twenty decretals which John XXII had issued in the earlier years of his pontificate, and which wandered scattered outside the collections of which the body of the law then consisted. They are cited thus: cap. 1, or cap. Ad onus, de electione, in Extrav. Joann. XXII; or more briefly: Extrav. Ad onus, de electione.

6° The Extravagantes communes are decretals issued from Urban IV down to Sixtus IV which remained outside the body of the law. This collection, while Sixtus IV governed the Church, was perfected by private industry. It is divided into five books, like the Gregoriana. It is cited: Extrav. Injunctae, de electione, cap. 3; or: cap. Sancta, int. comm., that is, inter communes.

In each of the books there are glosses, that is commentaries, which were written by the labor of many, and have no greater authority than the opinion of a private doctor can have in explaining laws³.

The whole body of canon law was published at Rome under Pope Gregory XIII, diligently corrected, and later copies were made according to this typical edition.

The same Gregory XIII gave encouragement to collecting the constitutions of the supreme Pontiffs which had come to light after Sixtus IV, and he committed this business to learned men, who were to issue a Seventh of the Decretals. But, this Pope dying before the work was yet finished, Sixtus V took care that it should be completed; and he too being taken from human affairs, Clement VIII, who as cardinal had bestowed labor and study upon this matter, ordered that collection to be committed to press. Difficulties arising, especially concerning the prohibition of publishing private commentaries upon the Tridentine decrees inserted in this book, that work, elaborated with so much labor, was suppressed⁴, of which copies, now most rare, can scarcely be found at great price. About the same times, namely in the year 1590, Peter Matthaeus, jurist of Lyons, published by his own and private labor a Seventh of the Decretals, into which many faults crept and several things also are wanting. This codex lacks all public authority.

III. — Newest law properly coalesces from apostolic constitutions and decisions of any kind whatsoever which after Sixtus IV have proceeded from pontifical authority, either immediately or mediately. However, in the collections made thence are included many earlier constitutions which, since they did not obtain a place in the book of Extravagantes, remained wandering outside the body of the law. The newest collections are the following.

1° Bullaria. While Sixtus V reigned, Laertius Cherubinus, a Roman, first collected into one volume, which he called Bullarium, the constitutions of Pontiffs wandering outside the body of the law, beginning from St. Leo the Great. He afterwards enlarged his book with the constitutions of Paul V, and was preparing a third edition in which later constitutions should be contained, when, overtaken by death, he could not perfect the work begun. His son Angelus Maria Cherubinus completed the paternal work, adding to it many constitutions published down to Innocent X. He called this new work, consisting of four volumes and edited in the year 1638, Bullarium Magnum. A fifth volume afterwards followed, in which Angelus a Lantusca and Paulus a Roma included other constitutions down to Clement X. But largest of all is the Bullarium Magnum edited by Hieronymus Mainardi at Rome and distributed into fourteen volumes. It contains the constitutions of the supreme Pontiffs from Leo the Great to Clement XII.

There appeared, at the command of Benedict XIV, his own constitutions comprised in four volumes. Published at Rome, in the year 1835, is a continuation of the great Bullarium, consisting of the constitutions of Clement XIII, Clement XIV, Pius VI, Pius VII, Leo XII, Pius VIII and Gregory XVI.

These Bullaria, unless perchance you except the Bullarium of Benedict XIV, are private works, and the constitutions contained in them have force only of themselves.

2° Collections of councils. Some are general, others particular. To collect the canons of all councils the studies of many learned men have been devoted, among whom, in the sixteenth century, Merlin, Crabbe, Surius; in the seventeenth, Baluze, Labbe and Cossart; in the eighteenth, Coleti and Mansi again edited the Labbean collection, enriching it with many additions.

Collections of this kind, as such, are destitute of public authority; but the documents of which they consist retain all their intrinsic value, inasmuch as they are authentic.

3° The Rules of the Chancery take their origin from John XXII, who first ordered these laws to be committed to writing, that the Apostolic Chancery might be governed by them. By his successors, especially by Nicholas V, new rules were added, so that seventy-two are numbered today, upon which John Baptist Rigantius wrote most accurate commentaries, besides others. These rules, that they may stand, must be confirmed by each Pontiff after his creation. They were derogated from by particular conventions which are called concordats.

4° The council of Trent, which is the most abundant source of newest law. No general council weighed so many questions and shelled them so skillfully. It had twenty-five sessions, of which almost each consists of two parts. The first part contains one hundred and thirty doctrinal canons, by which the heresies of Protestants are condemned and the dogmas of faith confirmed. The other part, inscribed on Reformation, comprises many decrees pertaining to ecclesiastical discipline and rules of morals.

5° Finally there pertain also to canon law the declarations of the sacred Roman Congregations. These Congregations are bodies of Cardinals to whom certain affairs have been committed by the supreme Pontiff, to be known and defined. Eight are numbered, of which the three former were instituted for defending and propagating the faith, and the rest keep watch over morals, discipline and divine worship.

First is the Congregation of the Inquisition, which holds first place, on account of the preeminence of its object. Paul III instituted it, and afterwards Pius IV, Pius V and finally Sixtus V determined its attributions by many sanctions. It takes cognizance of heresy, of suspicion of heresy and of other crimes of irreligion.

Second is the Congregation of the Index, which Sixtus V instituted in aid of the Inquisition, to examine and proscribe books contrary to sound doctrine or Christian morals.

Third is the Congregation de Propaganda fide, which Gregory XV instituted in the year 1621 to conserve and propagate the Catholic faith in regions destitute of episcopal sees. Whence vicars and prefects apostolic and superiors of missions of the whole globe are directly and immediately subject to its authority and administration.

Fourth is the Congregation of the Council, instituted by St. Pius V to watch over the observance of the decrees of the council of Trent which pertain to discipline. By that title it reviews and, insofar as need be, reforms the decrees of provincial councils, which ought not to be promulgated before this revision. Sixtus V granted it moreover the power of interpreting the aforesaid Tridentine decrees.

Fifth is the Congregation of Bishops and Regulars, which resolves questions and settles doubts concerning the rights, jurisdiction, precedences and native exemptions of prelates. It also takes up the causes of regulars of both sexes, to be known and settled according to the rules of law.

Sixth is the Congregation of Immunity, instituted by Urban VIII in the year 1624 to provide that no prejudice be inflicted upon the immunities of the Church. To it alone belong affairs, processes, judgments devolved by appeal, which pertain to local immunity. It takes cognizance also, but cumulatively with other congregations, of real and personal immunity.

Seventh is the Congregation of sacred Rites. Sixtus V instituted it « that the ancient sacred rites be everywhere diligently observed, in all churches of the City and of the world; that ceremonies, should they have fallen into disuse, be restored; should they have been depraved, be reformed. » Consequently it watches over the edition of liturgical books and, if need be, over their emendation. To it are committed also all causes which concern the beatification and canonization of saints.

Eighth is the Congregation of Indulgences and Relics, established by Clement IX in the year 1669. It has the mandate « of dispatching all doubt and difficulty emerging concerning relics of saints or indulgences, of correcting and amending abuses which have crept in, of forbidding false, apocryphal and indiscreet indulgences to be put to print, and of reviewing and examining those printed. »

Thus far has been treated the sources and monuments of public law in the Church. Particular law, whether of nations or of episcopal churches, is determined and governed by the constitutions of Roman Pontiffs, by concordats or conventions entered into by the Holy See with civil governments, by the decrees of provincial councils and by statutes enacted either in synod or privately and promulgated by bishops, to whom legislative power belongs within their dioceses, provided they exercise it within the limits of public law.]

You will ask 6° what the Corpus of civil law is.

The Corpus of civil law consists of the Digest, the Code, the Institutes and the Novels or Authentics.

The Digest, called by another name Pandects, as if one should say I take the whole, because they comprise in fifty books the whole science of law.

The Code is called of Recited Reading (Repetitae lectionis), because Justinian, after the first edition, undertook a second more careful one. It consists of twelve books distributed into various titles.

The Institutes contain the elements of law for the benefit of beginners. They consist of four books.

The Novels or Authentics are constitutions of Justinian emperor himself and of certain other emperors.

[From the above-named books coalesces ancient civil law, which, arisen from Roman law, flourished for many centuries in most European regions. New law is contained both in various codes proper to each nation and in collections of laws wandering outside the codes.]

You will ask 7º whether all things contained in the Corpus of canon law have force of laws.

I answer. 1° That the Decree of Gratian has no other authority than that of the sources and origins from which it was drawn.

The reason is, because no Pontiff ever approved it; Gratian, its author, possessed no jurisdiction. Moreover he gathered together many things without selection and worthy of correction; certain things he cites from suspect authors; certain things he attributes to holy Fathers which belong to heretics, as Bellarmine proves, de Script. eccles., on Gratian; the decrees of supreme Pontiffs and councils he often produces not from the sources but from other compilers, and not rarely mixed with his own words.

And although Gregory XIII took care for its correction, he did not however approve it, but only ordered the corrections to be kept, without anything being added to them or taken away, as is evident from his constitution printed at the head of the Decree⁵, and especially because after its correction there are still found things to be corrected. On this matter John Laurence Berti, an Augustinian Hermit, a most recent and elegant writer, reports a decision of the sacred Rota⁶ which says the same.

Therefore those things which Gratian legitimately cites from supreme Pontiffs and councils possess the authority which they have in themselves. Likewise those which he cites truly from national or provincial councils avail for those nations or provinces for which they were sanctioned, even if confirmed by supreme Pontiffs; because confirmation indeed adds strength to a decree, but does not extend it further, as jurists note. The same must be said, proportion being preserved, of other things which he brings forward either from holy Fathers or from doctors and others.

As to the other parts of canon law, since they contain only letters, rescripts and constitutions of supreme Pontiffs, they have force of law according as they are commonly received, unless they have been revoked, or abrogated by contrary custom proved. Understand this of constitutions concerning discipline, not concerning faith; for these are unchangeable.

But whether rescripts of Pontiffs given to one Church avail and can be alleged for others? I answer. Regularly, affirmatively, especially when a decretal letter inserted into the body of law has merited public authority. And so it is observed in regard to the civil rescripts of Emperors, as appears from l. I, fi de Constitutionibus principum. Except however, says Layman after Isidore and Gratian, if the response of Pope or Emperor has proceeded from a special cause, person, place and time. For then it cannot be transferred to other causes: and therefore I said, « regularly speaking. »

[You will ask 7º what authority the decisions of Roman Congregations have.

I answer. 1º. Since these Congregations were constituted by the supreme Pontiff himself, that in his name they may treat and settle the affairs committed to them, they exercise pontifical authority, and their resolutions are decisive and do not lie under appeal.

I answer. 2°. The decisions of the Congregation of the Inquisition are of two sorts: 1° It issues doctrinal sentences on doubts proposed to it: thus, in recent times it issued many decisions concerning usury and magnetism. Nevertheless, when grave controversies arise and new questions are agitated, supreme Pontiffs are wont to constitute a special congregation, to prepare the definitive decision. 2° It issues judicial sentences by which suspects of crime against faith are condemned or absolved; which penalties, at least now, are merely spiritual. In either case the sentences, as it seems, have binding force of themselves and plenary right, without appeal, because this tribunal is supreme in its kind.

I answer. 3°. The prohibitions decreed by the Congregation of the Index all bind. For 1º by natural law all are bound to guard against whatsoever brings faith into danger and is perilous to morals. But in the Index of prohibited books none but works whose reading brings faith into danger or becomes perilous to morals were inscribed, and they were inscribed by delegation of the supreme authority, to which is divinely committed the care of defending the faith and protecting morals. Therefore. 2º Positive law imposes the same obligation on all. Indeed Pius IV had committed to the Tridentine Fathers the task of forming the Index of prohibited books. Since this Index could not be examined by the council, the same Pontiff, employing many most learned prelates, perfected it, and commanded that it be observed by all faithful, and decreed that, if anyone read a condemned book, he should fall by that very fact into excommunication, and proceedings be taken against him as suspect of heresy. But since the Congregation of the Inquisition was already unequal to the examining of books, St. Pius V instituted a special congregation, which was named of the Index and ought to occupy itself solely with purging the Church of wicked books. It was confirmed by Sixtus V and Clement VIII, who in the year 1594 ordered the Index published throughout the whole world. After Benedict XIV, by the constitution Sollicita ac provida given July 9, 1753, had established the rules to be observed in examining and prohibiting books, by the subsequent constitution Quae ad catholicae, given December 23, 1757, which was prefixed to the Index, he again promulgated the Index in these words: « Wherefore we will the aforesaid Index praised, according to our mind, revised and recognized by the same cardinals, to be edited at the press of our Apostolic Chamber; and having it by these present letters of ours as expressly inserted, we approve and confirm it by apostolic authority, by tenor of these presents, and we command and enjoin that it be observed inviolably and without disturbance by all and singular persons existing in whatever places, under the penalties set down both in the Rules of the Index and otherwise established and expressed in apostolic letters and constitutions, which we confirm and renew by tenor of the same presents. Notwithstanding... customs even immemorial, and all else to the contrary whatsoever. » The Rules of the Index conclude thus, reg. X:

« All faithful are commanded that no one presume to read or keep any books against the prescription of these rules or the prohibition of this Index. But if anyone shall have read or kept books of heretics or of any author condemned and prohibited for heresy or suspicion of false doctrine, let him straightway incur the sentence of excommunication. But he who shall have read or kept books interdicted under another name, beyond the guilt of mortal sin wherewith he is afflicted, let him be severely punished by judgment of bishops. » Leo XII, commanding all bishops, by the mandate of March 26, 1825, to watch lest the faithful be perverted by harmful and deadly books, exhibits to them the general decrees of Clement VIII, Alexander VII and Benedict XIV as remaining in their force. — Some theologians object, especially the French, that the Index was not received everywhere; and Billuart himself says in his fuller Summa, treatise on Faith, dissert. V, art. 3, § 5: « Authors observe that this Index is not accepted in its entire rigor as to all things. » It must be answered first, that the Index, from the tenor of the pontifical constitutions, and notably from the constitution Quae ad catholicae related above, was to be received and observed everywhere, with no account taken of any custom, even though immemorial; then, that many synods, immediately after the publication of the Index and in following times, promulgated its rules as strictly obligatory, which likewise in these later years have done several provincial synods of France, among them those of Avignon, Albi, Toulouse, Reims, etc. Whence by right we conclude that all are strictly bound by these laws, unless for just causes anyone obtain dispensation from the Holy See⁷.

I answer. 4°. Since the Congregation de Propaganda fide has true jurisdiction in territories destitute of episcopal sees, its decisions have force of law in those places.

I answer. 5°. It is certain that the decrees of the Congregation of the Council approved by the supreme Pontiff and promulgated at Rome have force of law, as the other pontifical laws have. But what must be thought of declarations given to a case proposed? More commonly it is held that they avail as authentic interpretations, and that these interpretations have the same force as if they had been given by the Pontiff himself. It matters not that these resolutions are not promulgated in the same manner as new laws, for promulgation made to society is not required when a bare interpretation is given which introduces no new law, but declares the genuine sense of existing laws. Legitimate customs nevertheless are saved, which are not abolished by these decisions.

I answer. 6°. The Congregation of Bishops and Regulars does not make laws, but issues merely administrative sentences according to existing law. Whence these sentences avail only decisively for the case proposed, although they may be invoked for establishing jurisprudence in similar cases.

I answer. 7°. To the Congregation of Immunity belong affairs, processes, judgments referred by appeal concerning local immunity. Its sentences pass into res judicata, and from these no appeal is given.

I answer. 8°. That the value of the decisions of the Congregation of Rites may be known, it will suffice to relate the following resolution of the same : « On March 23, 1846, the Master General of the Friars Preachers set forth : whether the decrees emanating from the sacred Congregation and responses of any kind formally edited in writing by it upon doubts proposed have the same authority as if they emanated immediately from the holy Pontiff, although no report of them was made to His Holiness. — The S. R. C. judged that the reply should be affirmative. — And having touched upon all the foregoing by faithful report through the secretary, His Holiness our Lord Pius IX, supreme Pontiff, approved and confirmed the rescripts of the sacred Congregation in all and singular... on July 17, 1846. Authentic Decrees, n. 5051. But since from the words « formally edited in writing » a doubt arose, the Congregation of Rites resolved it, answering the following questions, on April 8, 1854 : « 1° Since in the declaration of the S. R. C. given May 23, 1846 it was sanctioned that decrees and responses emanating from it, provided they were formally edited in writing, have the same authority as if they emanated immediately from the supreme Pontiff himself, it is asked : whether by the words « provided they were formally edited in writing » it suffices that they be subscribed by the Prefect and Secretary of the S. R. C., and furnished with its seal; or rather is required that they be promulgated either at Rome or by bishops in their dioceses? 2° And inasmuch as affirmative to the first part, negative to the second : are the decrees and responses inserted in the Gardelliana authentic collection to be held as formally edited? — And the same sacred Congregation judged the answers to be : Ad 1um, affirmative to the first part, negative to the second. Ad 2m, affirmative, as is evident from the appended declaration. » But whether customs pertaining to the liturgy can be kept notwithstanding decrees of this kind? It was answered on August 3, 1839 : « Whatever inveterate custom cannot derogate from the law prescribed by the decrees of the sacred Congregation. » Likewise to the doubt : « Whether the decrees of the S. R. C., while they are issued, derogate from any contrary invected custom, even immemorial, and in the affirmative case bind even as regards conscience? The sacred Congregation answered : Affirmative, but recourse must be had in the particular. » September 11, 1847. The Gardelliana collection, of which above, so called from Gardellini, its chief editor, who was Consultor of this Congregation, was published under this title : Decreta authentica Congregationis sacrorum Rituum. It relates in chronological order the decrees given from the year 1602, and has already been enlarged by several supplements. This collection is authentic, as the declarations inserted at the front of the first volume by cardinal de Somaglia, Prefect of the Congregation, testify. Since not all decrees were related in it, what must be thought of omitted decrees is evident from the following decision given by this Congregation on September 17, 1822 : « Since doubts often arise concerning the authenticity of some decrees which, although found inscribed in the public registers of the S. R. C., were nevertheless omitted in the collection edited at press, such decrees can be added to that same collection at the desire of petitioners. » N. 4590.

I answer. 9°. The decisions of the Congregation of Indulgences and Relics have the same force as the decrees of the Congregation of Rites, because equal power was committed to it in its province by the supreme Pontiffs. These decisions were published by Aloysius Prinzivalli under this title : Resolutiones seu decreta authentica sacrae Congregationis Indulgentiis sacrisque Reliquiis praepositae, from the year 1668 to the year 1861. This collection was declared authentic by the secretary of the same Congregation. Whence other decisions which circulate and are cited by diverse authors are of no force, unless given after the year 1861 and recognized by the Congregation itself as authentic. The same must be said of concessions and summaries of indulgences. This is deduced from the summary of decrees prefixed to the Index of prohibited books, where, § III, n. 12, among writings prohibited pleno jure and without express mention are declared : « All books of indulgences, diaries, summaries, booklets, leaves, etc., in which their concessions are contained, are not to be published without license of the sacred Congregation of Indulgences. »

It must be noted that the jurisdiction of the Congregations, since it is ordinary and granted in perpetuity, neither expires nor is suspended during the vacancy of the Apostolic See. Wherefore, a new Pontiff created, their faculties are not renewed, but all proceeds in the same order as before, no new concession being made.]

You will ask 8º what authority civil law has.

I answer. As to civil law, to have authority among those nations and provinces which adopted it, and are not governed by contrary customs. Among those too which are governed by contrary usages, where usage fails, common law is alleged.

That some promulgation of law is required in order that it oblige, we said above in treating of law in common. It is now asked what kind is required for human law. And the question can be raised both concerning laws simply so called, and concerning revocatory laws of laws and privileges. Whence let there be

§ I. — On the promulgation of human law simply so called.

I say 1°: From the nature of the thing, positive law set aside, that promulgation of human law is required and suffices by which it can morally come to the knowledge of subjects; because promulgation of law is necessary for this reason, that it become known to subjects. Therefore, from the nature of the thing, that is required and suffices by which it can morally and in a human way come to the knowledge of subjects, if not simultaneously, at least successively.

I say 2°: Positive law being considered, the imperial law must be promulgated in each province, or in their metropolis, in order that it oblige in them. So it is commonly held.

It is proved from Novella 66 of Justinian on newly made constitutions [Novellarum constitutions], where the emperor decrees that his laws then at last oblige in the provinces when they have been promulgated in their metropoles.

The same seems to be said of kingdoms and provinces which use Caesarean law, on account of the cited Novella.

But as to other kingdoms and provinces, we must stand by the terms of the first conclusion, or hunt out from the circumstances what may be the intention of the legislator, unless usage has determined something special.

I say 3°: It seems more probable that pontifical laws establishing new right and inducing a new obligation must be promulgated in each province or diocese at least virtually, in order that they oblige in them; unless the Pontiff express the contrary.

It is proved 1º. In those things in which canonical law decrees nothing, we must stand by civil law. But civil law requires, as we said, the promulgation of a law in each province in order that it oblige in them, and canonical law decrees nothing on this matter. Therefore. — The major is proved from canonical law itself, cap. Intelleximus, Decretal. lib. V, tit. 32, De novi operis enuntiatione, where it is said: « As laws do not disdain to imitate the sacred canons, so the institutions of the sacred canons are aided by the constitutions of princes. »

It is proved 2º. Promulgation of law is required for this reason, that it can become known to subjects. But this will be obtained only with the greatest difficulty and after a very long time in the most vast empire of the Church extended even to the farthest parts of the world, if it be promulgated only at Rome; but easily and within a short time, if it be promulgated in each province. Therefore the will of the Pontiffs is thus presumed in law, when they do not express the contrary.

It is proved 3° from inconveniences. If a law promulgated only at Rome obliged everywhere, grave incon-

¹

venientias would follow. For it would follow that, if it were an irritating law, say of marriage in the fifth degree of consanguinity, all marriages contracted in that degree by the ignorant would be invalid. But if it were a law only forbidding or commanding, say a fast, deformity and confusion would be introduced among the inhabitants of the same province or city, and occasion would be given to scruples and anxieties; for those who learned something of the Roman promulgation would be bound to fast, and while the greater part was ignorant, the few who learned it could observe the law neither easily nor fittingly, and thence scruples and anxieties. Therefore we say with foundation that the Sovereign Pontiffs, whose rule is sweet and benign, and to whom power is given for edification and not for destruction, do not will their laws to oblige in provinces before they are promulgated in them, unless they declare that they intend otherwise.

It is confirmed. The common opinion is that even a pontifical law not received by usage does not oblige, chiefly for this reason, that the mind of the legislator is presumed to be that it not oblige in this case. But it is far more consonant with equity and reason to presume that he does not intend his law to oblige because it is not sufficiently promulgated, than because, although promulgated, it is not received. Therefore. Finally, the Sovereign Pontiffs know that many of their laws are not observed in many provinces through defect of promulgation. For this reason the bull of the Cenacle does not oblige in Gaul; clandestine marriages in certain places in which the Tridentine [decree] was not promulgated are still valid; and so many other things. Likewise they know that our opinion is handed down by many, and yet they are silent. Therefore it is a sign that this is their mind, that their own laws do not oblige in those provinces in which they have not been promulgated.

I said 1° in the conclusion: « Pontifical laws establishing new right and inducing a new obligation; » because, if a pontifical law only declares ancient right, whether natural, divine, or human sufficiently promulgated, it suffices, as far as the force of promulgation goes, that it be promulgated at Rome, in order that it oblige everywhere those who in any way whatsoever learn of that promulgation. Whence dogmatic laws declaring something to pertain to the faith, condemning propositions or books containing errors against faith or morals, do not need to be promulgated in each province in order that they oblige in them, but it suffices that it be known in any way whatsoever that they were so declared by the Church or the holy See; the reason is, because they are not so much laws as declarations of laws already promulgated. But by the very fact that anyone in any way whatsoever learns — whether by promulgation, by divulgation, or by his own study — that something is contrary to right, whether natural, divine, or even promulgated human law, he is bound to avoid it. Therefore especially if he knows, through divulgation, of the solemn pontifical definition so deciding and declaring, at least as far as the force of promulgation and knowledge goes.

I said 2º: « Unless the Pontiff express the contrary; » because, if the Sovereign Pontiff declared that he willed his law promulgated at Rome to oblige everywhere for some urgent cause, say because he knew that the promulgation of his law, exceedingly useful to the Church, would be unjustly impeded by malevolent men, or because the matter admits no delay, etc., we concede that then it would oblige everywhere; because, although ordered reason for introducing a law with fruit and effect and without inconveniences requires promulgation in each province, nevertheless per accidens and on account of necessity less can suffice; and if any inconvenience arise thence, it can be neglected and compensated by the fruit and effect of the law, which would have been wanting had it been bound to be promulgated in each province. Nor is it entirely similar in the case of the emperor, who perhaps, even setting positive law aside, could not do this, because he holds his authority originatively from the people, who according to some are not reckoned to have conferred upon him the power of enacting laws without their being promulgated in his provinces. But the Pontiff holds his authority immediately from Christ, and therefore independent of the nod and modification of peoples, but to be exercised as he shall judge more useful for the good of the Christian commonwealth.

You will say: There are many laws inserted into the body of canonical law, as decretals and others, which were promulgated only at Rome. Yet they oblige everywhere. Therefore.

I answer. 1°. I retort the argument. There are many laws which do not oblige everywhere, through defect of promulgation in each province, as appears from the proofs of the conclusion. Therefore.

I answer. 2°. I distinguish the major. Those which were promulgated formally only at Rome, I concede; virtually, I deny. For by the very fact that they are inserted by the authority and command of the Sovereign Pontiffs into the body of the law and read publicly in the schools, they are reckoned virtually and more than virtually, and therefore sufficiently, promulgated. The same I say of a law promulgated only at Rome which should be received and held in use by the faithful; for practice and usage would hold the place of promulgation: and thus the bull of the Cenacle obtained its force in many provinces.

As to what is commonly said, « That the Pope has feet of lead and not of feathers, » which some understand, because he is not bound to run through each province in order to promulgate his laws in them, I reply that the Pope has no need of feathered feet for running through all provinces for the sake of promulgating his laws, since everywhere he has legates, nuncios, bishops, to whom he can commit this office. [The opposite opinion, which seems true to us, is common.

For elucidating the question, a distinction must be made between the promulgation of a law and its divulgation. Promulgation is the act by which a superior intimates to the community, in the manner which he judges fitting and opportune, his will of commanding or forbidding something. By this act he properly constitutes his law, because promulgation, as has been proved, pertains to the essence of law. Divulgation, however, is the diffusion by which the law, now enacted, reaches the ears and consciences of the individual subjects. Divulgation indeed is required in order that subjects be bound to observe the law, but not in order that the law obtain its intrinsic virtue of obliging. Whence through promulgation the law has first act, and through divulgation it arrives at second act. Promulgation is made by the legislator himself, who thus manifests his will and exercises his office, unless it seem expedient to him that the law be intimated by the Ordinaries of places, who are not properly promulgators, but organs and heralds of the legislator. But when these superiors of their own motion publish a law passed by the supreme authority, they do not promulgate it, but divulge it; and this authentic divulgation makes the law undoubted. Divulgation made through ordinary channels likewise confers second act upon the law, provided its existence becomes certain. Whence

I say with Cardinal Gotti, de Legib., q. 6, dub. 4, § 1, n. 6: « If by his law the Pontiff expresses nothing to the contrary, as soon as a pontifical law is promulgated at Rome, without any other solemn promulgation of provinces and cities the Ordinaries are bound to take care that it be observed in their dioceses, and for this reason the pontifical mandate is wont to be directed to them. But even if it were not directed to them, they would be bound, when it came to their knowledge, to procure its observance. »

It is proved: 1° It suffices that pontifical laws be promulgated at Rome in order that all whom they concern be obliged, if it be lawful for the supreme Pontiff to will this, if he wills it, and if usages and custom consonant with law so bear it. But these three things are established. Therefore. — Proof of the minor. 1° It is certain that not only is promulgation absolutely necessary in order that true law be constituted and obtain the virtue of obliging, but also that the mode of promulgation is left to the judgment of the legislator, provided he manifest his will certainly to his subjects. Therefore it is lawful for the supreme Pontiff to will that the law which he promulgates only at Rome oblige all whom it concerns. 2º The will of the supreme Pontiff must be understood from the tenor of the documents by which he promulgates laws. But two clauses are commonly used when papal bulls are affixed at Rome in the accustomed places. The first is: « But that the present letters may more easily come to the notice of all, and no one can allege ignorance of them, we will that they be affixed and published at the doors, etc., and thus published, arrest and affect all and each whom they concern, just as if they had been personally intimated to each of them. » The other says: « But we will that to transumpts of the present letters, even printed ones, subscribed by the hand of some public notary and fortified with the seal of a person constituted in ecclesiastical dignity, exactly the same observance be shown everywhere, both in judgment and outside it, as if they had been exhibited or shown to each one. » If it happen that these clauses be changed as to words, they always exhibit the same sense, and from these the will of the legislator appears without ambiguity. Therefore. 3° Upon such promulgation being made, all causes which are brought to the Roman court are judged and terminated according to these laws: whence the right [jus] is established. Elsewhere today nowhere is it doubted that pontifical laws oblige once they have been published at Rome in the customary manner and affixed in the accustomed places. Therefore. And herein fact accords with law; for in cap. Ad hoec, de postulat. praelat., Decretal. lib. I, tit. 5, c. 1, it is read: « Nor let it be necessary, when a constitution is solemnly issued or publicly promulgated, to impress its knowledge upon the ears of individuals by special mandate or letters; but it suffices only that he be held to its observance who knows it to have been solemnly issued or publicly promulgated. »

2° That cannot be admitted which would take away the law's strength, weaken the supreme authority, and impede the unity of governance. But if pontifical laws concerning the universal Church could not suffice by being promulgated at Rome, this threefold inconvenience would follow; for 1º the law would in no way avail in places where it was not promulgated by the bishops for whatever cause; 2° the exercise of supreme authority could easily be impeded by the Ordinaries of places, whenever it pleased them to hold themselves negatively toward its commands; 3° thence in many things, and even in matters of greatest moment, often not without grave detriment to the public good, varieties of discipline would suffer in neighboring regions. Therefore.

You will object: That must be held which the Church teaches by facts. But the Church teaches by facts that laws do not oblige unless they have been promulgated in the diverse provinces. Therefore. — Proof of the minor. 1° The Apostles sent the decree issued in the Council of Jerusalem to the brethren who were at Antioch, and Syria, and Cilicia, through Judas and Silas, chief men among the brethren, Act., XV, 22 et 23. 2º The Fourth Lateran Council, under Innocent III, decreed that the constitution which it had issued against physicians who do not persuade the sick to summon a priest would have its force only « after it has been published by the prelates of the places. » 3º The Council of Trent, irritating clandestine marriages, sess. XXIV, de reform. matrim., cap. 1, « decrees that a decree of this kind begin to have its force in each parish after thirty days, to be counted from the day of the first publication made in the same parish. » Therefore.

I answer. I deny the minor. Not only could the alleged texts be adduced in proof, they clearly show on the contrary that, when the Roman Pontiffs or ecumenical councils will some law not to oblige before it has been published in the diverse regions of the world, they expressly declare this, because in this they derogate from the general rule. To be noted, in confirmation of this rule, is that the said councils commit to the Ordinaries of places, not the promulgation of the law, which is made by the legislator himself, but its publication; so that the law, which by the very fact of promulgation obtained its obligatory force and its first act, is suspended as to execution until it obtain second act through publication.

You will ask how bishops ought to promulgate their laws.

I answer. The doctrine expounded above regards laws of whatever kind. On the promulgation of synodal statutes Benedictus XIV says, de Synodo dioec., lib. XIII, cap. 4: « The manner in which this promulgation is to be made is not specifically defined by law. Wherefore Suarez rightly asserts, lib. IV de Legib., c. 5, n. 8, that laws passed by bishops are sufficiently promulgated if either they are read publicly in the cathedral church, or they are announced by the voice of a herald in the square of the city to bystanders, or written they are affixed in a public place designated for this purpose. Nay more, if synodal statutes regard not the people but only the clergy of the diocese, they do not need a publication distinct from that which is made in the very synod, to which the principal part of the same clergy is present; since Innocent III, in cap. Ad haec, de postulat. praelat., says disjunctively that the bond of the law extends over all « when it is solemnly issued, or publicly » promulgated. » Now no law is more solemnly issued than that which is made in the assembly of the principal part of those upon whom it bears. » As to laws passed outside the synod, it is lawful for the bishop to choose the mode of promulgation which seems to him more apt and fitting, that the knowledge of the law reach all his subjects, given the circumstances of the times.]

On revocatory laws.

A distinction must be made between a revocatory law of an onerous law, whereby indeed something is commanded or forbidden, or by which someone is rendered unfit or a penalty decreed, and a revocatory law of a privilege or grace. Also the revocation of a privilege or grace is either made publicly by common law, or privately by messenger or by letter. According to these distinctions I lay down the three following conclusions.

I say 1°: For the valid revocation of an onerous law, promulgation is not required, but it suffices that it be externally manifested; not however if it be conceived only in the mind.

It is proved. Law binds no one except by the will of the legislator, from which it has the virtue of obliging. Therefore, when the legislator wills and declares that his law no longer binds, its obligation ceases; and this the more, since it is something favorable from which injury is done to none nor damage inflicted, and therefore to be extended.

Nor does it matter that laws must be promulgated, as was said. For that is true only of true laws, not of revocations of laws, which are not true laws, but destructions of laws; for less is required to destroy a law than to establish it, because evil and destruction arise from any defect whatsoever, good and constitution from an integral cause.

I said: « Not however if it be conceived only in the mind; » because, as men are sensible, so they are governed by sensible actions and signs, not by the interior concepts of the soul alone. Therefore a revocation conceived only in the mind does not avail.

I say 2º: When the revocation of a privilege or grace is made through a common law to be promulgated, it seems more probable to me that, speaking per se and regularly, promulgation in the metropolis of each province is required and suffices; so that, this promulgation being posited, the privilege be revoked and acts done be null, although done by those ignorant of it.

It is proved. Although a merely revocatory law of a privilege is not a true law, but an abrogation of a private law, yet since it conduces to forming morals, and men ought to act according to it, so that, if they act against it and use unknowingly a revoked privilege, they incur grave inconveniences, it is required and suffices that it be so promulgated that it can easily and conveniently come to the knowledge of subjects; for this is altogether congruous with reason, and thus it is presumed in law of the mind of an equitable legislator. But if it be promulgated only in the court, either of the Pope or of a prince, it will come with difficulty to the knowledge of subjects; easily, if it be promulgated in the metropolis of each province². Therefore.

I said: « Speaking per se and regularly; » because, if the legislator declares the contrary for a just cause, or custom obtains otherwise, we must stand by either.

I say 3°: When the revocation of a privilege or indulgence granted to some person, place or thing, likewise of delegated jurisdiction or of some other faculty and grace, is not made through a common law to be promulgated, but privately by messenger or letter, it does not obtain its force, or attain its effect, before it become known to the privileged one; because otherwise gravest inconveniences would follow, many contracts would be null to the detriment of others, many absolutions would be void, many marriages invalidly consummated, etc. So commonly the authors whom Sylvius and Loth. cite in great number and follow. Nay, some hold not improbably that casual knowledge does not suffice, but that it must be made by letter or messenger destined for this purpose: and this, if I mistake not, from the presumed will of the legislator.