Chapter II. On the Author of Law or on the Legislator

83. • A legislator is called a Superior in whom there is either independent and supreme, or subordinated, power of making laws for a community over which he has jurisdiction.

Principles. - I. God alone is the supreme and universal legislator, from whom necessarily the other legislators, whoever they may be, receive all their power, whether immediately or mediately. For God is the supreme and essential rule of any order whatever, and he alone enjoys supreme dominion over rational creatures, of whom he is the principle and ultimate end. - It is also clear from Scripture: By me kings reign, and lawgivers decree just things; by me princes rule, and the powerful decree justice. Prov. 8. 15, 16. - There is no power except from God. Rom. 13. 4.

II. The Church has the power of establishing laws which conduce to obtaining the end proposed to her ¹.

¹ It will happen to be most useful to have read on this argument the excellent little work whose title is Institutions of Ecclesiastical Law, by Camillus Tarquini of the Society of Jesus, professor of Canon Law in the Roman College, Rome 1862, and again 1868.

It is clear 1. from Sacred Scripture. For thus Christ says to Peter, Matt. 16. 19: Whatever thou shalt bind upon earth shall be bound also in heaven, etc. - And Luke 10. 16: He who hears you, hears me; and he who despises you, despises me; but he who despises me, despises him who sent me. - Likewise Acts 15. 28: It has seemed good to the Holy Spirit and to us to impose no further burden upon you than these necessary things, that you abstain from things sacrificed to idols, and from blood, and from what is strangled. Moreover the words: Whatever thou shalt bind... he who hears you, hears me... to impose upon you... signify the power conferred on the Church of binding or of establishing laws.

It is clear 2. from reason. For the Church is a perfect society in her own kind. Therefore she must enjoy the power readily available and necessary for her proper governance. But the Church could not provide for her own governance unless she had the faculty of establishing laws; for there are many abuses to be repressed among the faithful, and many things to be established for promoting or preserving the worship of God, and for procuring the salvation of souls. Therefore...

It is clear 3. from tradition and the constant practice of the Church, or from various apostolic Constitutions and Councils, by which disciplinary statutes were established.

84. • III. Secular Princes can establish laws which conduce to the end of temporal happiness.

It is clear 1. from Sacred Scripture, Prov. 8. 15: By me kings reign, and lawgivers decree just things... as above in the first principle. And 1 Pet. 2. 13: Be subject, whether to the king as excelling, or to governors as sent by him.

It is clear 2. from reason: for Princes have from God the power of ruling subjects, as was said above; but they could not exercise this power unless they enjoyed the faculty of establishing laws. Therefore, etc.

IV. Legitimate Superiors commanding something by a just law must always be obeyed, whether you think they received authority immediately from God, or through the people. - The reason is that in each sentence they are equally set over society to be governed by God, and therefore they possess authority received from him. Hence in practice the controversy whether secular Princes have power from God mediately or immediately is of no moment.

But the law must be considered just whenever its injustice is not commonly clear among learned and upright men; because right order requires that in doubt the presumption favor the Superior.

85. Questions. - QUESTION 1. Who in the Church have the faculty of establishing laws?

I answer. The Pope, a general Council, Bishops, and particular Councils.

1. The Pope, or Roman Pontiff, for the whole Church. For to him it was said in the person of Peter: Feed my lambs, feed my sheep. John 21. 15 and 16. But the word to feed signifies the same as to govern and rule. - Add the words of Matt. 16. 19 reported above: Whatever thou shalt bind, etc. For the Pope is the true successor of Peter in the Roman chair; he is therefore the Supreme Pontiff, the Supreme Key-bearer, Pastor of Pastors, the Vicar of Christ on earth.

2. A general Council likewise for the whole Church. For a general Council juridically represents ² the whole teaching and ruling Church; therefore it can establish laws for the whole Church. Nevertheless a general Council can do nothing unless the Supreme Pontiff, either through himself or through Legates, presides over it and confirms its decrees. For the Church, when the head or Pope is absent, cannot be represented.

² To represent here is to set present, not however to act in some way in the place of another by an office committed; which heretical sense was proper to the Jansenists.

3. Bishops for the diocese. For this is necessary for the right administration of the diocese. It is also clear from that text, Acts 20. 28: The Holy Spirit has placed you Bishops to rule the Church of God. But the Bishop receives this right in his canonical institution. Moreover a Bishop can do nothing concerning the law of the Supreme Pontiff, since an inferior does not have jurisdiction over a superior. Nor therefore can he establish anything that is opposed to the common law or weakens it. - The statutes of a Bishop, even those made and promulgated outside a Synod (with the counsel of the Chapter nevertheless having been heard), according to the truer sentence have the same perpetuity as synodal Constitutions. - Thus Benedict XIV, On the Diocesan Synod, book XIII, ch. 5, no. 1 ³. - But Archbishops and Patriarchs cannot make laws for the dioceses of suffragans, because they are not Superiors properly so called, although they can settle their lawsuits brought before them.

³ On this matter perhaps Scavini says it better thus (Moral Theology, tr. 2, ch. 1, q. 2, in note): By common usage it has been introduced that ordinances of Bishops given outside a Synod, unless the Bishops themselves expressly declare otherwise, are then only to be had as true laws when they bind all diocesan persons, both clerics and laics; otherwise they are reputed only as precepts. I said outside a Synod; for ordinances which have been established in a Synod are had as true laws by themselves going to endure perpetually, even if they regard only one group of subjects, since they are contained in the legislative code. I said unless the Bishops expressly declare otherwise; for it is always free to them even outside a Synod to establish laws for each group only. But if this is not clearly established, they are held not as laws, but as precepts from common custom. But against these things those things which Lambertini discusses in the place cited by the Author do not have much strength.

4. Particular Councils for the province. For if Bishops taken separately are able to establish laws for dioceses, similarly also in a Council, whether national or provincial, they can constitute laws for a nation or province. Nevertheless the decrees of these Councils must be sent to the Sacred Congregation of the Council of Trent so that they may be recognized. Thus from the ancient law confirmed by Sixtus V in the Bull Immensa aeterni, where it is said of the Sacred Congregation of the Council: But of provincial Councils, wherever on earth they may be celebrated, it will command that the decrees be sent to it, and it will examine and recognize each one. It is also clear from Benedict XIV, On the Diocesan Synod, book XIII, ch. 3, where he has these things: Sixtus V commanded that these decrees, before they are promulgated, be transmitted to the sacred Congregation of the Council, not indeed so that afterward they may receive confirmation from the Apostolic See, but so that they may be corrected, if perhaps anything either too rigid or less congruent with reason is detected in them. Yet it has happened more than once that provincial Councils are not only recognized by the sacred Congregation of the Council and, if there is need, amended, but also confirmed by the Supreme Pontiff, when the Metropolitans by whom they were celebrated request it, through apostolic letters. But the confirmation of Synods by the Apostolic See can be made in two ways, to be carefully distinguished: in common form, or in specific form. - See Benedict XIV, On the Diocesan Synod, book XIII, ch. 5, no. 11 ⁴; and book XII, ch. 5, no. 13. Yet neither transmission to the Sacred Congregation of the Council, and much less confirmation by the Apostolic See, are necessary for the statutes of a diocesan Synod. - Benedict XIV, ibid., book XII, ch. 3, no. 6.

⁴ Statutes are said to be confirmed in common form when they are not examined one by one, nor approved by the Pontiff motu proprio and from certain knowledge... and such a confirmation gives them nothing of new right or efficacy.

A confirmation is said to be made in specific form when cognition of the cause is premised, and the individual statutes are diligently weighed, and then, with no condition added, by Apostolic authority with the clause motu proprio and from certain knowledge, they are confirmed.... A statute confirmed in specific form, since it has put on the nature of pontifical law, no one of inferiors is permitted to derogate from it; indeed from this confirmation it receives such strength that it prevails over common law, to which otherwise it may be contrary. Thus Benedict XIV, On the Synod, books and chapters cited by the Author.

86. • QUESTION 2. Whether the Cathedral Chapter, while the See is vacant, Prelates of Regulars, and Abbesses, or Superioresses of Nuns, can establish laws?

I answer 1. The Chapter, while the See is vacant, can innovate or abrogate nothing; but it must govern the diocese according to existing laws. Nevertheless it could make statutes which were necessary for circumstances. - St. Lig., no. 104. - Gousset, no. 129.

I answer 2. Prelates of Regulars are able to establish true laws, whether in the general congregation of the Order, or in another way within the limits of their jurisdiction according to the proper constitutions of the Order ⁵. For they have statutes approved by the Supreme Pontiff which grant them this faculty.

⁵ Namely, one must inspect to whom this power has been given in the proper Constitutions of each Order. Certainly in a Chapter or Congregation, not the Prelate but the Congregation establishes laws. But if this power belongs to the General Superior, then he will not need the help of the Congregation.

I answer 3. Abbesses or Superioresses of Nuns cannot make laws properly so called, since they are not capable of ecclesiastical jurisdiction. Yet they can exact obedience in conscience concerning things commanded, or concerning those things which conduce to the progress of the Nuns according to the rules. For they have the right of commanding both from the vow of obedience emitted by subjects, and from the necessity of discipline which must be preserved in the community.

87. • QUESTION 3. What secular Princes have the power of establishing laws?

I answer. All those who enjoy supreme authority, and are not delegates of another, so that they act in his name; of this sort are Emperors, Kings, the Magistrates of a legitimately constituted Republic, etc.; but not military commanders, nor Prefects of provinces, who cannot act in their own name. - See Cases, no. 79 and following.

But if there are any who, although they act in their own name, nevertheless are subject to a Superior, the laws of these persons can be invalidated or reformed by the Superior; for example, the laws of a feudatory Prince in the civil order by the primary Prince, just as also in the ecclesiastical order the laws of a Bishop or of a provincial Council, or of a Prelate of Regulars, can be corrected or abolished by the Roman Pontiff ⁶.

⁶ This is valid also as to the decrees of an ecumenical Council; since they have no force of obliging unless the confirmation of the Roman Pontiff accedes, he can reform or reject them. Thus St. Leo I did not admit certain disciplinary canons made in the Synod of Chalcedon.