Summa summae S. Thomae, Tomus II

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-

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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.