15. On the Nature of Law

1. A bishop, in a diocesan synod, reserved to himself for the future some sins and some censures. After the bishop had died, the chapter, the see being vacant, ordered this reservation of cases to be printed, so that it might come to the knowledge of all confessors. It placed this title on the folio, edited and printed: Cases and Censures in the Synod of N. Diocese, held in the year 1637. It was doubted whether that reservation had sufficient force.

Q. 1. What is law? 2. What as to the case?

R. To the first, cf. I. M. 166 seqq. To the second: Cardinal De Lugo, Resp. Mor., l. 1, d. 21, thus resolved this case: "I inclined more to the opinion denying the value of that reservation.... I am moved..., namely because the chapter did not seem to use its own authority for promulgating that reservation and inducing its obligation. For it did not signify that it reserved the absolution of those cases, nor did it say that it supplied the authority which, the bishop having died before promulgation, he did not have; but it only caused those cases to be printed as having been reserved by the bishop in diocesan synod, the proper authority of the chapter, the see being vacant, not being interposed, but only the diocesan synod with the bishop being commemorated. Therefore, since the authority of the bishop had already expired, the obligation of law could not begin when the legislator can no longer command and oblige. For I suppose that before promulgation a law is not a law, except inchoatively; nor is promulgation merely a condition or application of a law already preexisting, but rather it is a constitutive part of the law itself in the character of law.... And whatever may be the case concerning this, nevertheless it must be admitted that promulgation, required for the obligation of law, is not promulgation through private knowledge which individual subjects may have about a law already made, even if the greater part of the subjects had that knowledge; but it ought to be public knowledge, that is, arising from a solemn act by which, at the command of the Legislator, the law is published, as the doctors commonly note. But the reason from what has been said is that the act of commanding, such as law is, includes a speech by which the Prince or Legislator commands and manifests his will to the subjects, which happens when the law is promulgated. But promulgation cannot be the speech of the Prince except by command and authority of the Prince. Therefore, since the dead bishop can no longer speak to the subjects, or command, it follows that promulgation made by the chapter alone cannot be made in the name of the bishop, nor receive authority from the same bishop; therefore that promulgation is not sufficient for inducing obligation, since through that promulgation no superior speaks and commands. Nor does the dead bishop, who now can neither speak nor command. Nor does the chapter, which, although it could command, nevertheless does not signify that it commands, nor interposes its own authority, but that of the bishop alone, now dead. Therefore the promulgation required for obliging was lacking, namely promulgation made by the Superior himself, commanding through that same promulgation."

2. "Caius, a counselor of great name and no less wealthy, had understood that in the last assembly it had been decreed that the value both of ducats and of grain would be diminished, while on the contrary the value of another certain silver coin would be raised. Wherefore, thinking that he should use the opportunity of time and of this private knowledge, one or two days before the aforesaid Constitution was solemnly promulgated, he asked from a certain Jew a notable sum of that species of silver coin, in place of which he gave him ducats and grain. After some days, the promulgation of the aforesaid Constitution having already been made, he came to the confessor, having ingenuously confessed that he had notably deceived a certain Jew, and asked to know whether on account of this he had sinned, or had incurred an obligation of restoring."

Q. 1. Is promulgation of a law necessary for its obligation? 2. What will the confessor answer to Caius asking?

R. To the first, affirmatively. For promulgation is the act by which a law is exhibited and shown to the subjects. Whence it is also clear that, although promulgation is necessary for the obligation of the law, it nevertheless does not pertain to its essence. For the essence of law consists in this, that it is a rule of morals; and promulgation is not regulating, but only showing the rule. Cf. I. M. 166, 167.

To the second: "Caius, by force of this deed, at least speaking in itself, did not sin, nor did he contract any obligation of restoring.... The reason is that, since, at the time of this exchange made, the ducats and grain were truly in their former value, it is certainly clear that Caius, by giving gold and grain for silver, repaid an equivalent. Granted even that he is supposed to have known that the grain would at once be of lesser value after the promulgation, nevertheless because this promulgation had not yet happened, nor was Caius otherwise obliged to intimate it to the Jew, hence he inflicted on him no injury at all, but wisely used his right in order to avoid the damage which he foresaw was threatening him from retention of the ducats and grain.

"Nevertheless I said that Caius, in this deed, speaking in itself, did not sin. For from the manner of accusing, he seems to have insinuated quite clearly that at least from erroneous conscience he sinned gravely: for deception of one's neighbor in grave matter is not free from grave fault. Therefore since Caius thought that he was deceiving, indeed willed gravely to deceive, the Jew, it seems practically certain that he sinned gravely, although he is no longer held to rescind the contract, nor to restore anything to the Jew, because, according to what was just said, the contract was truly just." Elbel 257, 258; G. 89, 90. Cf. I. M. 1147.

3. Epipodius the theologian and Thiphonius the canonist, conferring with each other, sharply dispute about the promulgation of pontifical law. The former contends that it is enough if its promulgation is made at Rome, or in the principal city of the whole world, so that it has force for obliging all the faithful. But the latter contends that promulgation must be made in the individual dioceses, to manifest knowledge of it to all of them. For Rome is very distant from the greater part of the dioceses of the whole world.

Q. 1. How and where must laws be promulgated? 2. In order that pontifical laws oblige, must they be promulgated not only at Rome, but also in each diocese by its own bishop?

R. To the first, cf. I. M. 168, 169. To the second: first, negatively, if it is a question of Pontifical Constitutions concerning a matter of faith and morals. The reason is that they are not new laws, but mere declarations of natural and divine law, already sufficiently promulgated before.

Secondly, affirmatively, if it is a question of disciplinary laws, and promulgation of this sort is established in the law itself, as in the Tridentine Decree, session 24, ch. 1, De Ref., concerning the nullity of clandestine marriage. The reason is that the mode of promulgation depends altogether on the will of the legislator.

Thirdly, if it is a question of the same laws, and nothing is had in the law concerning a special promulgation to be made, "the first opinion affirms, and several grave authors hold this.... But still, according to this first opinion, Bulls inserted in the Bullarium must be excepted, because these are already the Body of laws; and in this all agree, as Cardinal Petra testifies.... But the second opinion, very common and more probable, denies it.... When the Apostolic See wishes some law not to oblige except after publication made in the provinces, it expresses this.... When the Pontiff establishes that his Bulls be published only at Rome, it is by no means likely that he intends to oblige not the other provinces, but only the Roman province. When the Pope wishes to bind only Romans, he is accustomed to issue particular Edicts.... But making statutes for the whole Church, and promulgating them solemnly with obligatory clauses, he is without doubt presumed to wish to oblige all the faithful as soon as knowledge has reached them.... This is clearly deduced from c. 1, Ad haec de Postulat. Praelat..... The same is sufficiently inferred from c. Quia cunctis 1, § Nec obstaret, De Concess. praeb. in the Sixth.... But what gives more force to our opinion are two clauses.... One clause speaks thus: 'But in order that the present letters may more easily come to the knowledge of all, and that no one may be able to allege ignorance of them, we will that they be affixed to the doors, etc., and published, and that, thus published, they bind and affect all and each whom they concern, just as if they had been personally intimated to each one 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 by the seal of a person constituted in ecclesiastical dignity, the very same observance everywhere be applied, both in judgment and outside it, as if they had been exhibited or shown to each one.' But these clauses show too plainly that the mind of the Pontiff is to wish to bind all the faithful to statutes of this sort independently of their publication in individual Provinces. And Sylvius and Roncaglia, although they admit the first opinion as probable, nevertheless hold as certain that all Bulls promulgated at Rome with the aforesaid clauses oblige in themselves without another promulgation. Moreover, Roncaglia rightly says that from the reported words of such clauses a firm argument can be adduced for the probability of the first opinion with respect to those Bulls where the aforesaid clauses are lacking: for nothing in laws is to be supposed placed in vain, and those clauses would be altogether superfluous if all Bulls, published at Rome even without such clauses, obliged before any other publication in the Provinces.... Furthermore Suarez and others probably say that pontifical laws which invalidate some contract valid by its own nature... or which take away jurisdiction, for example, in the sacrament of penance, concerning these we can benignly interpret the mind of the Pontiff to be that he does not wish them to have effect unless after they have been promulgated in the dioceses; otherwise they would redound to the detriment of many, who would be invincibly ignorant of them." Lig. l. 1, n. 96.

This latter opinion seems altogether truer from the fact that a response was given by the Sacred Penitentiary, 8 November 1821, that the Constitution Ecclesiae of Pius VII, and on 15 June 1870, the Constitution Apostolicae Sedis of Pius IX, oblige on the day after its publication made at Rome. It is confirmed from the very recent Constitution Officiorum of Leo XIII concerning the prohibition and censure of books, which the Supreme Pontiff wills to be inviolably observed by all, and which indeed is to be observed by all after the promulgation already made at Rome.

Fourthly: "Not only Pontifical Constitutions which have been solemnly promulgated induce the obligation of law, but also all others which, from the use and consent of the universal Church, for several centuries now are held as sufficiently promulgated and authentic." St. Alphonsus l. 1, n. 105, 106; Struggl. tr. 3, q. 1, n. 21, 22.

Fifthly: "It is special in censures that, for their obligation, it is required that they be published not only at Rome, but also through the prelates of places. C. Cum infirmitas 13, De Poenit. et Remiss." Thus Engel, l. 5, tr. 39, n. 122. But the disposition which is contained in the aforesaid chapter can be held as a special disposition for a special matter. For it is a question of physicians called to the sick, who must before all things induce the sick person to confession. Moreover in the Constitution of Pius XI, Apostolicae Sedis, IV Id. Oct. 1869, by which censures latae sententiae presently in force are established, this special disposition is not had, and that Constitution is in force everywhere. - G. 92 seqq.; Elbel 254, 256.

4. Flavius, a cleric, on account of grave negligence committed in the care of souls, having been denounced to his Ordinary and found culpable, was condemned to perform spiritual exercises for eight days in a certain monastery, and to give fifty lire to the same monastery by way of alms. This latter Flavius in no way performed. As for the former, during that entire eight days, he did not make even one meditation, saying that mental prayer is a merely internal act, which cannot be commanded by a human superior. Hence he neglected all the other spiritual exercises, content only to dwell in the monastery for eight days, which he spent reading profane books and newspapers.

Q. 1. Can merely internal acts be the object of law and precept? 2. What concerning Flavius?

R. To the first, cf. I. M. 117. To the second: the bishop altogether legitimately condemned Flavius to the aforesaid penance, the proportionate gravity of the fault being supposed. For although the bishop in words, in his sentence or mandate, did not express that he wished to oblige Flavius gravely, nevertheless by the fact he must be judged sufficiently to have expressed it, from this, that any superior, speaking regularly, must be presumed to have wished to oblige according to the capacity of the matter. Hence, Flavius, by omitting to give to the monastery the alms of fifty lire, sinned gravely; because when matter commanded by a superior is divisible into several parts, and those parts in themselves constitute grave matter, the neglect of any part is grave sin. - But besides, Flavius sinned gravely because of the omitted spiritual exercises, which also themselves constitute grave matter. Nor indeed does the reason of Flavius avail anything in the case; because spiritual exercises do not consist in merely internal acts, or in mental prayer alone, but in several acts at once internal and external: in withdrawal from all secular business and profane actions; in pious readings; in conferences with the spiritual Father, or confessor, or director of the exercises; in due preparation for meditation, after first hearing or reading over the various points of meditations; in meditations and examinations of conscience, on bent knees at least for some space of time; in vocal recitation of prayers; in visits to the Most Holy Sacrament, etc. All these, as is clear, are mixed acts, which without doubt can be commanded by human authority. - Elbel 339-341; G. 95, 96; Lugo, Resp. Mor., l. 6, d. 7.