Article I. On Ecclesiastical Law

125. • That is called ecclesiastical law which is made by ecclesiastical power for the right governance of the Church and the eternal salvation of souls.

The collection of various ecclesiastical laws constitutes Canon Law.

The Corpus of Canon Law consists of six parts, constituting three volumes. They are: the Decree of Gratian, the Decretals, the Sixth, the Clementines, the Extravagants of John XXII, and the Common Extravagants.

The first volume contains the Decree collected by Gratian, a Benedictine monk, and published in the year 1151 under the title: Concordance of Discordant Canons. The work is distributed into three parts, of which the first treats of ecclesiastical persons, the second of actions or of the matter and form of judgments, and the third of sacred things.

The first part is divided into one hundred and one distinctions, which are subdivided into chapters or canons. It is usually indicated thus: ch. Ieiunium 7, dist. 76; or also dist. 76, ch. 7.

The second part is divided into thirty-six causes; but the causes are divided into questions, and the questions into chapters. It is cited in the following manner: ch. Qui viderit 13, quest. 5, cause 32; or cause 32, qu. 5, c. 13. The Treatise on Penance, having seven distinctions, is cited thus, for example, ch. Mensuram 86, dist. 1, on Penance; or on Penance, dist. 1, c. 86.

The third part consists of five distinctions, which are divided into various chapters. They are cited: ch. Est unitas 49, dist. 4, on Consecration; or on Consecration, dist. 4, c. 49. For this part treats of the consecration of Churches, altars, etc.

The second volume contains the Decretals omitted by Gratian, or published after him, collected by St. Raymond of Pennafort, of the Order of Preachers, by command of Gregory IX, and published in the year 1230. It is divided into five books, which have titles and chapters; and they are cited in this manner: ch. Pervenit 28, on Appeals; or Decretals, book 2, tit. 28, c. 28. A chapter indicated in this latter way is found much more easily.

The third volume contains the Sixth Book, the Clementines, and the Extravagants both of John XXII and the Common ones.

The Sixth, or sixth book of the Decretals, is so called because it is added to the five books of the Decretals of Gregory IX, and has the Decretals published from Gregory IX up to Boniface VIII. It appeared in the year 1298 by the authority of Boniface VIII; it is divided into five books, which also have titles and chapters. It is cited in the same way, but there is added, in the Sixth, or under Boniface.

The Clementines, so called from Clement V, who ordered them to be collected after the Council of Vienne, over which he presided in the year 1311, are Constitutions published either by Clement himself or by the Council of Vienne. John XXII promulgated them in the year 1317 in five books, which, no less than the Decretals and the Sixth, consist of titles and chapters. They are likewise cited in the same way, but there is added in the Clementines.

The Extravagants of John XXII are the Constitutions which he himself published in the prior years of his pontificate. They are so called because they wander outside the corpus of law collected thus far. They are usually indicated thus: Extrav. of John XXII, tit. 4, c. 1.

The Common Extravagants, so called because they were published by John XXII and by several other Pontiffs, are themselves divided into five books, which have chapters with titles, but not numbered. They are ordinarily cited thus: ch. Vas electionis, on Heretics; Common Extravag., or Extrav. comm., book 5, on Heretics, c. 2.

Other Constitutions of the Councils of Constance and Trent, and of the Roman Pontiffs, were published afterward, but have not yet been collected into the corpus of Law.

126. Questions. - QUESTION 1. What are the Roman Congregations, and what are their various offices?

I answer: The following are enumerated: the Congregation of the Council, the Congregation of Bishops and Regulars, the Congregation de Propaganda Fide, the Congregation of Sacred Rites, the Congregation of the Index, the Congregation of the Holy Office, the Congregation of Indulgences and Relics, the Congregation of Immunity.

1. The Congregation of the Council (of Trent), or of Cardinals. It consists wholly of Cardinals, who are called the interpreting Fathers of the Sacred Council of Trent, and one of whom is distinguished by the title Prefect of the Congregation. Pius IV had first instituted this for the observance of the Council of Trent; afterward, moved by the requirements of affairs, Sixtus V endowed it also with the power of interpreting the decrees of the Council in those matters which pertain to the reform of morals or discipline and seem doubtful.

2. The Congregation of Bishops and Regulars. It also wholly coalesces from Cardinals. As its name indicates, it undertakes two matters to be treated: namely, those things which regard the good administration of the dioceses of the whole Catholic world, and those things which pertain to knowing and settling, according to the sacred Canons, the controversies and disputes of Regulars of both sexes.

3. The Congregation de Propaganda Fide. It is composed of Cardinals alone. It is wholly occupied in procuring the propagation of the Faith throughout the world. The College called de Propaganda Fide, for forming Missionaries, founded at Rome by Urban VIII, pertains to its cares.

4. The Congregation of Sacred Rites. Besides Cardinals, it also consists of Consultors, Prelates or Regulars. It defines and orders the sacred liturgy, and the things which pertain to it. The examination also of the causes of Beatification and Canonization of the Saints is numbered among its offices.

5. The Congregation of the Index, instituted by St. Pius V. In it Cardinals and several other learned men have a place. It exercises one sole office, but one of great moment for the good both of ecclesiastical and of civil society: namely, it has the care of books which are published, lest anything through them be able to be propagated among Christians against Religion and good morals; those which it judges harmful to the faithful, it accurately notes, forbids, and reports in the Index, which therefore is called the Index of prohibited books, so that the faithful may abstain from reading them as from poisoned pastures. Yet sometimes books are prohibited both by the Congregation of the Holy Office and by the Pontiff himself through particular Briefs and dogmatic Constitutions, especially if they savor of heresy.

6. The Congregation of the Holy Office, or of the sacred universal Inquisition. It is called Supreme, and consists both of Cardinals and of Prelates and Theologians.

It belongs to it to take cognizance of heresy, and also of suspicion of heresy, or of other irreligiosities. It was instituted by Paul III and confirmed by Sixtus V.

7. The Congregation of Indulgences and Relics. It has the faculty and office of settling all difficulties and doubts concerning Sacred Relics and Indulgences. It consists of a number of Cardinals to be determined by the Supreme Pontiff, and of other Prelates and Theologians.

8. The Congregation of Immunity, which coalesces from Cardinals and a few others. It inspects and takes cognizance of causes concerning ecclesiastical immunity, whether real, personal, or local.

127. • QUESTION 2. What is to be said concerning the sacred tribunals, gracious and contentious?

I answer: 1. Three gracious tribunals are numbered, namely: the Sacred Penitentiary, the Dataria, and the Roman Chancery.

1. The Penitentiary is a tribunal instituted for granting certain favors in the internal forum. Its office is to grant faculties of absolving from sins and censures reserved to the Pope, dispensations in vows and irregularities, and also generally in occult impediments of matrimony, as will be said more fully in its place. It also pertains to it to solve practical doubts, or to settle difficulties which are proposed to it.

The Sacred Penitentiary consists of one Major Penitentiary from the College of Cardinals, and of minor Penitentiaries taken from different religious orders. Pius IV reformed this Sacred Congregation in the year 1562, and St. Pius V completed the reform.

2. The Dataria has been so called from the style customary in Chanceries, because it notes the date, or epoch, of the favor conceded. It is a very ample tribunal by reason of the business referred to it, and of the favors which proceed from it. For from there proceed the erections, unions, divisions, and suppressions of Cathedral Churches, creations of new canonries or dignities, collations of reserved benefices, and public dispensations of impediments of matrimony.

The Dataria is constituted from a Datary, who is called Prodatary if he is a Cardinal, as almost always happens, a Subdatary, and several subordinate officials.

3. The Chancery wholly excels among the gracious tribunals. It is the tribunal of the Pontiff, through which Apostolic letters are drawn up, written, and expedited. The origin of that office is not certain. That office is of primary dignity, and its Chancellor precedes the other ministers of the Roman court. He has several officials under him, of whom some are major Prelates.

I answer: 2. Among contentious tribunals the Roman Rota holds the first place, about which we shall report very few things. Concerning its origin and the reason for its name there is not sufficient certainty. But the Roman Rota is a pontifical tribunal, instituted for taking cognizance of and deciding contentious causes brought from the whole Catholic world to the court of the Pontiff. The judges from whom this tribunal is constituted are twelve, taken from different parts of the Church. Among these, eight are Italians, two Spaniards, one Frenchman, and another German. Thus from the Constitution of Sixtus IV. All these are called auditors of the Roman Rota, because, as they say, formerly they were mere auditors and reporters of causes, but not judges properly so called.

128. • QUESTION 3. What is to be said concerning pontifical Bulls, Briefs, and Rescripts?

I answer: 1. Bulls are certain Constitutions of the Roman Pontiffs which for the most part regard weightier business, and are expedited in the Apostolic Chancery, inscribed on somewhat dark and thicker parchments, in Lombardic or Teutonic character. They are called Bulls from the seal, either leaden or golden, displaying on this side the images of the Holy Apostles Peter and Paul, but on that side the name of the Pontiff, which adheres to a cord of silk or hemp.

They obtain various names from various objects. Some are gracious, which contain the conferring of a favor. - Others are of justice, which regard the administration of justice. - Others are consistorial, which are expedited in the Consistory. - Others are half-bulls, which are made by a Pontiff not yet consecrated, and in the seal do not display the name of the same. Bulls are cited by the words with which they begin. Bullaria are called collections of Bulls.

2. Briefs are called certain Constitutions of the Roman Pontiffs for business for the most part lighter. Through the Secretary of Briefs, written on white and thin parchments, in Latin and in an elegant character, they are expedited. They have a seal of red wax, on which the image of St. Peter engaged in fishing is impressed, and therefore they are said to be expedited under the Ring of the Fisherman.

3. Rescripts are called responses of the Pontiffs to requests. There is a twofold kind of them. Some are issued after the manner of familiar letters, which the Supreme Pontiffs are accustomed to give either when they are petitioned by those with whom they have a special relation of friendship, or when they are asked for counsel as learned and pious men; nor is any force of obliging inherent in these, since they proceed more from courtesy of mind than from true authority. - Others are issued after the manner of Decrees by the Pontiffs, as successors of St. Peter and Pastors and Teachers of the universal Church; and consequently the greatest force is inherent in these, since through them pontifical right and supreme jurisdiction are exercised.

129. • QUESTION 4. Whether pontifical Epistles, and responses not inserted in the corpus of Law, have the force of law?

I answer: Yes, if their authenticity is established, and they have been sufficiently promulgated; namely, if they are published in that manner in which laws are usually published, or if from the usage and sense of the universal Church already for several centuries they are held as authentic and sufficiently promulgated. - St. Lig., no. 106. - Apostolic Man, no. 34.

130. • QUESTION 5. Whether the Declarations and Decrees of the Sacred Congregations have the force of law?

I answer: 1. The Decrees and Declarations of the Sacred Congregation of Rites are to be held as oracles of the Pontiff himself: thus from the Bull Immensa of Sixtus V, and from the decision of that same Sacred Congregation on 23 May 1846, which Pius IX approved and confirmed. The very common opinion holds that Declarations and Decrees of this kind oblige even in similar cases, and the jurisprudence of the Sacred Congregation and of the Tribunals of the City favors it.

I answer: 2. But the Declarations and Decrees of the other Congregations oblige as laws in the particular cases for which they are made. Whether in similar cases? It is controverted. Some with Benedict XIV affirm that they strictly oblige in every case, provided they have been fortified with the seal and subscription of the Cardinal Prefect, and the Pontiff has been consulted. And this is the more common and more probable opinion. - But others deny this, and say that they do not oblige unless they have been published by mandate of the Pontiff and promulgated for the whole Church in such a way that the Pope declares that he wishes them to be observed by all the faithful; yet they attribute so great an authority to them that they prefer them to the opinions of any private persons whatsoever, and think they are not to be abandoned except for gravest reasons. - Bouvier ¹.

¹ St. Alphonsus (book 1, no. 106) holds both opinions as equally probable, and indeed he alleges not fewer doctors for the second than for the first. But he also shrewdly adds with Laymann that in doubt whether they themselves have the force of obliging, a certain obligation cannot be urged, although great weight must certainly be attributed to them.

There is added also a stronger reason for the second opinion, namely that it is not easy, and therefore not always safe, to transfer the opinion of a Sacred Congregation to similar cases. For it is not clearly established what reason moved the Sacred Congregation to this opinion rather than to that one, especially because concerning the same matter plainly opposite opinions, namely according to the diversity of circumstances, have proceeded from a Sacred Congregation. Therefore, since it is difficult to know what circumstances impelled the opinion, for that very reason the transfer of the opinion to other cases can very easily be fallacious. Thus, for example, certain persons with labor wholly vain gathered together opinions of the Sacred Congregation in order to prove that the marriages of heretics, which are celebrated clandestinely in places where the Tridentine decree concerning that matter had been promulgated, are generally invalid; to which opinion Pius VII, in letters given to the Archbishop of Mainz on 8 Oct. 1803, concedes scarcely any degree of probability. Benedict XIV indeed discloses the cause of the error (In Declarat. year 1741 concerning Dutch marriages, § 2), that those persons did not advert that those decisions or decrees had been issued in certain particular cases and with attention to the circumstances then set forth: which decrees indeed (as he himself warns, On the Synod, book 6, ch. 6, no. 4) had not always been conformable even among themselves because of the variety of circumstances which now were present in one species of fact, now were lacking in another.

Yet others distinguish more aptly in this question merely comprehensive Declarations from extensive ones. They call them comprehensive when the declared sense does not depart from the proper and usage-received signification, so that it is according to the tenor and property of the words of the law, and only interprets it. But they call them extensive if they depart from that proper signification of the words, and beyond that which the words, accepted properly and according to the common sense, denote, they decree, prohibit, dispense, etc.

Now if 1. they are merely comprehensive, as Pius V and Gregory XIII wished, and 2. they have been given after the Pontiff has first been consulted, and in his name expressed in the letters, and 3. they are produced in authentic form, namely with the seal of the Sacred Congregation, and with the subscription of the Cardinal Prefect and Secretary, as Urban VIII wished; then they are to be held authentic, and therefore have the force of law not only with regard to those to whom the responses are given, but also with regard to others. Nor is it an obstacle that declarations of this kind are not solemnly promulgated. For a merely comprehensive declaration does not require a special and solemn promulgation, since it does not establish new law, but merely explains law already established and promulgated. But if the declaration itself does not come to the knowledge of all, only this will follow from that: that one who acts against the explained sense of the law is excused both from fault and from penalty on account of ignorance, until the declaration becomes known to him either from the authentic letters of the Sacred Congregation, or from an authentic copy of them, or from a relation worthy of faith, just as happens concerning other laws.

But if the Declarations are extensive, of which sort, for example, are many decrees concerning the celebration of Masses or concerning the Reform of Regulars, these do not have the force and authority of law unless they are made by special mandate of the Pontiff and are legitimately promulgated. The reason is plain, because by the very fact that they are not contained in the words of the laws accepted in their proper sense, they are already new laws, which require legislative power in the one declaring. But the Sacred Congregation from its institution indeed has the power of interpreting, but not of establishing laws. Therefore. Confer Pichler (Prolegom., no. 46), Schmalzgrueber (Introductory Dissertation, nos. 373-377), and Reiffenstuel (Prooemium in Ius Canonicum, nos. 130-134).

St. Ligorius observes that the promulgation of Declarations of this kind can be made in multiple ways: namely, either by special mandate of the Pontiff, or by use of several years, or by the report of authors commonly referring them ². - St. Lig., List of Retractions, 2nd series, p. 2. - Scavini, On Laws, ch. 4.

² When, according to what has been said, Declarations of this kind are such that they need legitimate promulgation, but this has never been had, even if they are commonly referred to by authors, this nevertheless will not suffice for the force of obliging to accrue to them.