Whether law depends on the acceptance of the people?

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.]