Summa summae S. Thomae, Tomus II

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.

I say: No law, whether civil or ecclesiastical, depends upon the acceptance of the people.

It is proved 1° from Scripture. The Apostle says, Hebr., XIII, 17: Obey your prelates, and be subject to them. Rom., XIII, 1: Let every soul be subject to higher powers. And 2: He that resisteth the power, resisteth the ordinance of God. Nowhere is this or a similar clause or exception added: « If you shall wish to obey, » nor would it be understood except absurdly.

It is proved 2°. If law, whether civil or ecclesiastical, did not oblige except dependently upon the acceptance of the people, this would proceed either from defect of will in the legislator, who would not will his law to oblige except under this condition, or from defect of power. But neither can be said. Therefore. — The major contains the foundations of the adverse opinion. — Proof of the minor. Not from defect of will; for by the very fact that the legislator bears his law in preceptive words and urges its observance, it is an open sign that he wills it to oblige independently of the consent of subjects. Not from defect of power, as if legislators held it from the people under this restriction: « If the people consent. » Above all, ecclesiastical power is in the supreme Pontiff immediately from Christ; likewise in the Bishops, or at least through the mediation of the supreme Pontiff. Civil power is in many by right of war, and not from the people. As to others who hold it originatively from the people: by the very fact that the community conferred it upon the prince without express restriction, as happens commonly, the prince alone is superior, and he alone holds the dominion and use of the conferred power independently of the people. Therefore, whether the people will or not, the prince has absolutely legislative power, which all are bound to obey.

It is confirmed. Legislators can compel refractory subjects by inflicted penalties to observe their laws.

Therefore also to accept them. Therefore the power they have of enacting laws and obliging does not depend upon the acceptance of subjects.

You will say: A law accepted and observed is abrogated through the contrary custom of the people and ceases to oblige. Therefore, a pari and a fortiori, a law refused by the people from the beginning does not begin to oblige.

I answer. I distinguish the antecedent. A law is abrogated by contrary custom through the consent of the legislator, tacit or declared in law, and ceases to oblige; I concede the antecedent; otherwise, I deny the antecedent and the consequent.

You will insist: In Gaul, Spain and Belgium pontifical laws have no force unless they have been accepted in the supreme courts and permitted to be promulgated, or, as they commonly say, unless they have been fortified by the royal placet. Therefore.

I answer. These are privileges, or, as they call them, liberties from the concession or consent of the Sovereign Pontiffs.

[You will ask what is to be understood by the liberties and immunities of the Gallican Church, and what must be thought concerning them.

I answer. Gallican writers have referred these liberties generally to two heads, namely to temporal things and to spiritual things.

As to the first head, more studious than is just of royal power, they rejected, as contrary to the dignity and independence of the kingdom, certain temporal rights which, from the customs and political constitutions of several nations, had been attributed to the holy See. Moreover, on account of temporality, they assigned to the secular prince the nominations to episcopal sees and the collation of benefices, with enjoyment of vacant revenues which they pronounced to be regalia. To these, resting upon the same foundation, they added appeals from abuse, reserving them to the secular forum.

As to spiritual things, the Gallican doctrine is contained in those words which Bossuet wrote in his Defense of the Declaration of the Gallican clergy, lib. XI, cap. 14: « Let the sum of our liberty be so to preserve the newer laws established by pious or necessary institution as to have regard for the older, and by them to sustain the discipline that is slipping away; certainly let us strive with every hope to preserve the common right and in it the venerable remains of ancient right, and to repudiate arbitrary right and extraordinary mandates, and in these let us place the greatest part of our reverence toward the Catholic Church: since we understand that the more studious each one is of the ancient discipline, the more he ought to hold dear the majesty of the Catholic Church and of the Apostolic See. » The foundation of this doctrine in common right, independently of the assent of pontifical authority, the Gallicans laid down, as Gibert testifies, who says, Corp. juris can., proleg., part. I, lib. XV, append. sect. 2: « National Churches are not subject to the Roman laws which they have not received, and they do not need the consent of the Apostolic See in order not to receive them; but it suffices that these seem repugnant to them to the customs of their nations. » In favor of this schismatical proposition they invoke ecumenical councils, and especially that of Ephesus, from which was commanded « that to each province its own rights which it has had from the beginning be preserved pure and inviolate. » From this they inferred that the rights and customs of particular Churches have the same force as the laws of the universal Church, as sanctioned by general councils; and since they held a general council to be above the Pope, they further concluded that these customs could not even be changed by the Roman Pontiff unless the consent of the particular Churches intervened.

Those liberties were proclaimed by several bishops and deputies of the provinces, Louis XIV commanding and his ministers pressing, in the assembly of the Gallican clergy of the year 1682. We shall refer the whole text of this celebrated and ill-fated Declaration below, when we treat of the primacy of the Roman Pontiff. Let it suffice here to express the sense of the four articles: 1° The Roman Pontiffs have no power over kings and princes and in temporal things, neither direct nor indirect. 2° A general council is above the Pope. 3° Apostolic power must be moderated by the canons consecrated by the reverence of the whole world, and against it avail the rules, customs and institutions received by the kingdom and Church of Gaul. 4° In questions of faith the supreme Pontiff has only the principal parts, and his judgment is not irreformable unless the consent of the Church intervene. — Hence, it seems, this assembly vindicated illegitimate immunities for the Gallican Church, not only in temporal matters, but even in things pertaining to faith and morals.

Those liberties and immunities are defined generally by some canonists: « The right constantly to follow the received canons of the universal Church and the customs of ancient Gaul, whatever be decreed anew to the contrary. » More briefly and better could they be defined: « The right which the Gauls claimed to themselves of retaining, out of the laws of the Church, only those which pleased them. »

I say: The fundamental doctrine of the liberties and immunities of the Gallican Church is altogether to be rejected.

It is proved. That doctrine is to be rejected which is false, absurd and dangerous. But such is the said doctrine. Therefore. The minor is proved.

1° This doctrine is false. 1° The Gallican Declaration was reproved by the holy See. Innocent XI denied bulls of canonical institution to ecclesiastics who, after subscribing the celebrated Declaration in the assembly of the clergy of the year 1682, were coopted by Louis XIV as bishops. Alexander VIII, his successor, by the constitution Inter multiplices, given January 30, 1691, declared all the acts of this assembly null, invalid, and destitute of all force. Innocent XII likewise did not grant bulls of institution to new bishops unless they had first abjured the Declaration, and the king had abrogated the edict by which he had prescribed its publication and observance. But all these things prove that the holy See held the principles of the Declaration to be false. Therefore.

2° By his constitution Auctorem fidei, given August 28, 1794, Pius VI condemned very many propositions proclaimed in the Synod of Pistoia, among which the following are noted: the 6th « The doctrine of the synod whereby it professes itself persuaded that « the bishop has received from Christ » all the rights necessary for the good governance of his « church; » just as if superior ordinances looking whether to faith and morals, or to general discipline, were not necessary for the good governance of each diocese, the right of which rests with the supreme Pontiffs and general councils for the universal Church; schismatical, at least erroneous. » The 5th « Likewise, that it says it is persuaded to itself that « the rights of the bishop received from Jesus Christ for governing » the Church can neither be altered nor impeded, and, where » it happens that the exercise of these rights has been interrupted » for any cause whatsoever, the bishop can and ought always to return » to his original rights, whenever the greater good » of his church requires it; » in that it implies that the exercise of episcopal rights can be impeded or coerced by no superior power whenever the bishop judges with his own judgment that this is less expedient for the greater good of his church; inducing into schism and subversion of hierarchical governance, erroneous. » But these propositions accord with the doctrine of the Gallican Declaration. Therefore. Therefore we must stand by the words of Clement XIV writing to his nuncio at the king of Gauls, July 26, 1766: « Although such liberties are admitted in the Gauls, far from having been approved by the holy See and by the universal Church, they are on the contrary reproved by these. »

2° This doctrine is absurd. For it is absurd to suppose that Christ, when he constituted his Church and committed it whole to Peter and his successors as supreme pastors and rectors to be governed, willed or permitted that some particular Church should not be subject to this governance in all things. But the Gallican doctrine supposes this. Therefore.

3° This doctrine is most dangerous. For Pius VI condemned it as « inducing into schism and subversion of the hierarchy of governance. » Indeed from this doctrine flows the autonomy or independence of each particular Church, since the individual ones could decline even in matters of greatest moment the ordinances of supreme authority, and constitute for themselves their own discipline. They could likewise everywhere oppose local doctrines to doctrinal sentiments of the holy See, or at least, according to the fourth article of the Gallican Declaration, render them of no force, by not consenting to those definitions and holding themselves negatively toward them. Thus are shaken the legislative power and the magisterium of the Pope, to whom is divinely committed the office of ruling and teaching the universal Church. Thence also it follows, as long experience has proved, that what is detracted from pontifical authority is quasi-necessarily transferred to secular power, whence the divine constitution of the Church of Christ is gravely injured; so that Fenelon could say excellently of immunities of this kind that, if they are liberties toward the Pope, they are servitudes toward the king. But the doctrine from which such consequences follow is most dangerous. Therefore.

You will say: It can happen that pontifical decrees are not congruent with the genius and morals of some nation. But these decrees are enacted not for destruction, but for edification. Therefore that nation is not bound to observe them.

I answer. The major and minor being conceded, I deny the consequent. For it is supposed that that nation, in the case, can reject or neglect the apostolic mandates with full right. But this is false; for laws of this kind obtain obligatory force toward all once they have been promulgated. If therefore, beyond the intention and prevision of the legislator, they cannot be put into execution without great disturbance of the public tranquility, it belongs to the bishops, upon whom rests the office of vigilance for the good of souls, to open to the supreme Pontiff the inconveniences which they dread; who, according to his supreme wisdom, will determine what is to be done, and what shall have been determined will remain. Whence

I say: Ecclesiastical right today in Gaul is determined by common right and by the convention entered into under the name of Concordat between the civil government and the holy See.

Proof of the 1st part. Besides the Gallican liberties and immunities, which the holy See has constantly reproved, legitimate customs could formerly creep into the churches of Gaul, and certain privileges were granted to them by the supreme Pontiffs: from which there coalesced a certain proper particular right, not indeed of the Gallican Church, which has never been held by the holy See as a corporate body having canonical existence, but of the diverse provinces and dioceses. But this ancient order was entirely destroyed and abolished by Pius VII through the bull Qui Christi Domini, by which, all the dioceses of Gaul having been suppressed, he erected new ones. For it is read in that constitution: « We suppress, annul and extinguish forever the title, denomination and whole present state of the hereunder-written archiepiscopal and episcopal churches, together with their respective chapters, rights, privileges and prerogatives of whatsoever kind... So that all the above-said archbishoprics and bishoprics... must be held hereafter as no longer existing in their first state, because either wholly extinguished, or to be erected into a new form... Notwithstanding customs even immemorial. » From which it evidently follows that the newly created churches were instituted not according to the pristine particular right, which was altogether abolished, but according to common right. Therefore they are subjected to common right in all those things in which derogation was not made by the supreme authority.

It is confirmed by these words of Cardinal Orioli, prefect of the Congregation of bishops and regulars, acting as the part of the cardinal ponens: « Although [in the bull Qui Christi Domini] nothing is expressly stated regarding the abrogation of former customs, nevertheless this abrogation seems to be admitted as something necessarily consequent. »

Proof of the 2nd part. In the year 1801, between Pius VII and Napoleon Bonaparte, who presided over the government of the Gallican republic under the title of first consul, there was entered the Concordat by which derogation was made from common right in many things. But it was certainly lawful for the supreme Pontiff, by reason of his supreme power and of the present necessities, to consent to these derogations. Therefore.

If perhaps legitimate customs should have been introduced or should be to be introduced according to the canonical rules on customary right, they pertain or will pertain to the particular right of the churches.]