ARTICLE I: ON ECCLESIASTICAL LAW

169. • Ecclesiastical law is said to be that which is made by ecclesiastical power for the right government of the Church and the eternal salvation of souls.

The collection of various ecclesiastical laws is called Canon Law; but a threefold collection of these laws is distinguished: ancient, new, newest, and from this comes the division of Canon Law into ancient, new, newest. Yet of ancient law, which extends from the age of the Apostles up to the twelfth century, almost no account is had today; for the laws of that age are contained, for the most part, inserted in more recent Law. Therefore either the discussion is about new Law, which extends from the twelfth century up to Trent; or about newest Law, which extends from Trent up to our age. The first is contained in the Body of Canon Law; the second in Trent itself, in the Bulls, Briefs, and Rescripts of Pontiffs issued after the Body of Law was closed; likewise in the Declarations of the Roman Congregations and in the Rules of the Apostolic Chancery.

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

I. The first volume contains the Decretum 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. Thus it is usually indicated: cap. Jejunium 7, dist. 76; or also dist. 76, cap. 7.

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

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

II. The second volume contains the Decretals omitted by Gratian, or issued 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; but they are cited in this manner: cap. Pervenit 28, de Appellationibus, or Decretal. lib. 2, tit. 28, c. 28. A chapter indicated in this latter way is much more easily found.

III. The third volume contains the book called the Sixth, 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 contains the Decretals issued 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 Sexto, or apud Bonifacium.

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 issued 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 Clementinis.

The Extravagants of John XXII are Constitutions which he issued in the earlier years of his pontificate. They are so called because they wander outside the Body of Law collected thus far. They are usually indicated thus: Extrav. Joannis XXII, tit. 4, c. 1.

The Common Extravagants, so called because they were issued by John XXII and by several other Pontiffs, are themselves divided into five books, which have chapters with titles. But these are ordinarily cited in this way: cap. Vas electionis, de Haereticis; Extravag. communib., or Extrav. comm. lib. 5, de Haereticis, c. 2.

Gregory XIII took care that the whole Body of Canon Law, diligently emended, be published at Rome by the Bull "Cum pro munere pastorali." But it is certain that the seventh book of the Decretals and the Institutions of Lancellotti, which are found placed at the end of Canon Law, do not have force, since they are private collections, endowed with no Pontifical confirmation. Likewise the Decretum of Gratian, although emended several times by the care of the Roman Pontiffs, and although it is everywhere cited, nevertheless "it has been received among all," says Benedict XIV himself, "that whatever is contained in it has as much authority as it would have had of itself if it had never been inserted in the Collection of Gratian."¹ But the remaining parts of Canon Law oblige, unless they have been abrogated by contrary law or by legitimate custom. (N) p. 479.

The laws of newest Law have not yet been collected into a Body of Law.

171. Questions. - Quaer. 1° What must be held 1) concerning the Rules of Law; 2) concerning the titles of the Decretals; 3) concerning the superscriptions and summaries of chapters; 4) concerning the glosses and notes which are found in the Body of Law?

Resp. to 1). Under the title de Regulis Juris, at the end of Book V of the Decretals, and at the end of the Sixth of the Decretals, certain general sentences are inserted, which briefly contain established law concerning diverse matters having the same reason. Let this be an example: "Every thing is dissolved by the same causes by which it is born," which declares concerning various obligations that they cease by the same causes by which they are introduced, and can be applied, for example, both to a law, which is dissolved by the same efficient cause, namely the legislator, by whom it was born, for instance if he dispenses in it or abrogates it, - and to contracts, which, just as they exist by mutual consent, are also dissolved by mutual consent. - They have the force of law as to cases not excepted. Thus from the Rule of Law just cited the contract of marriage is excepted, which, although it is born from mutual consent, nevertheless is not dissolved by the same. Hence the axiom: There is no rule without exception. Those exceptions are called fallacies by the Doctors, and they become known either from the nature of the thing, or from the law itself, or from general custom.

Resp. to 2). The titles of the Decretals, like the Rules of Law, are authentic in the authentic books, since they are from the legislator himself; but they do not have the force of law, or of a Rule of Law, unless they refer a complete sense, such as, for example: "That, issue not having been joined, one not proceed to witnesses," etc.; "Lest, the See being vacant, anything be innovated." Since the titles of the Decretals were originally written in red letters, and briefly present the matter of the chapters which are contained under them and which were written in black character, the axiom prevailed: "from the red to the black the inference has force"; and the contrary: "from the black to the red the inference does not have force," or what is said in the title is said in the individual chapters which are contained under it; but many things are said in the chapters which are not said in the title under which they are placed.

Resp. to 3). Superscriptions are those words which indicate whence the text of the chapter was taken, or to whom it is directed. In the authentic books they are authentic, and from these a valid argument is deduced. - Summaries are words by which private doctors summarized the chapters; they are not authentic, but serve for the convenience of readers.

Resp. to 4). A gloss is a fuller explanation of the canons made by authors; but a note is a briefer illustration or addition of citations. Neither has authentic force, but only doctrinal force.

172. • Quaer. 2° What are the principal Roman Congregations, and what are their various offices?

Resp. The principal ones are:

1° The Congregation of the Council (of Trent), or of Cardinals. It consists entirely of Cardinals, who are called interpreters of the 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 it for the observance of the Council; afterward, moved by the necessities of affairs, Sixtus V endowed it also with the power of interpreting decrees of the Council which pertain to the reform of morals or discipline and seem doubtful.

2° The Congregation of Bishops and Regulars. It too wholly coalesces from Cardinals. As the name indicates, it undertakes two things 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 controversies and lawsuits of Regulars of both sexes, to be known and decided according to the Sacred Canons.

3° The Congregation de Propaganda Fide. It was instituted by Gregory XV by the Constitution Inscrutabili, January 22, 1622.

Its office is to distribute the lands to be evangelized among various missionaries, and to send them there with very ample faculties; to propose some of them to the Supreme Pontiff that they be created Bishops, or only Vicars or Prefects Apostolic; to decree concerning various affairs which sometimes arise between missionaries of various Orders and the Ordinaries of places. -

Moreover it resolves questions, or cases of conscience, which are proposed by missionaries, and sends to them instructions, ordinances, etc., according as the good administration of affairs demands. (E) p. 479.

Urban VIII added to it a College or special Seminary under the same name of Propaganda Fide, in which youths of various infidel or heretical nations are educated, who then spread the faith in their regions.

By his Apostolic Letters of January 6, 1862, Pius IX divided the Congregation de Propaganda into two parts: one for the Latin rite, and the other for the Oriental rite.

4° The Congregation of Sacred Rites. Besides Cardinals, it also consists of Consultors, Prelates or Regulars. It defines and orders the Sacred Liturgy and those things which pertain to it. The examination of causes of Beatification and Canonization of Saints is also commemorated 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 office, but of great moment for the good of society both ecclesiastical and civil: namely it takes care of books which are published, lest through them anything against Religion and good morals be propagated among Christians. Those which it judges harmful to the faithful it accurately notes, forbids, and refers into the Index, which therefore is called the Index of prohibited books, so that the faithful may abstain from reading them as from poisonous 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 irreligious things. 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 resolving 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.

Besides the Congregations there are also sacred tribunals, both gracious and contentious. We mention one gracious tribunal, the Sacred Penitentiary, since the rest scarcely pertain to our matters and circumstances. But the Penitentiary is a tribunal instituted for imparting certain graces 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 marriage, as will be said more fully in its place. To it also belongs to solve practical doubts, or to resolve difficulties which are proposed to it.

173. • Quaer. 3° What force do the Declarations and Decrees of the Sacred Congregations have?

Resp. 1° Looking at the source from which they are derived, they have the same force as if they had immediately proceeded from the Roman Pontiff; provided however they are authentic, that is, subscribed by the Prefect and Secretary of the respective Congregation and furnished with the seal of the same.

2° They have that force even if they are not explicitly confirmed by the Supreme Pontiff.

3° Yet they are not infallible unless they are confirmed by the Supreme Pontiff, and by him speaking ex Cathedra.

The 1st is proved. For they are given by commission of Apostolic authority. - The 2nd from the same reason, and besides from the Response of the Sacred Congregation of Rites, May 23, 1846. - The 3rd: for infallibility is not delegable, since it is personal and proper to the Roman Pontiff.

Quaer. 4° Do the Declarations and Decrees of the Sacred Congregations always have universal force?

Resp. 1° Affirmatively, if either they are issued by the Sacred Congregations as universal; or, by removing the ambiguity of law, they comprehensively interpret the sense of a universal law. The reason is plain of itself from what was said in this number under question 3.

Resp. 2° Negatively, if they are given in cases altogether particular, on account of special adjuncts of things or singular conditions of place, which is to be gathered from the exposition of the case and from the fact. This is plain from the Response of the Sacred Congregation of Rites, April 8, 1854. But whether particular responses of this kind must necessarily be extended to similar cases is disputed probably on both sides;¹ but it is certain that they generally have doctrinal force in altogether similar cases, since they are responses of men most versed in those matters.²

Quaer. 5° Must Declarations and Decrees having universal force be promulgated in order to oblige?

Resp. Affirmatively, if they are extensive; negatively, if they are comprehensive. The reason is plain from what was said at n. 143. III. But they are judged sufficiently promulgated if they have already been universally spread in the Church either by the use of many years, or by the report of authors commonly referring them.³

Quaer. 6° Is there some authentic collection of the Declarations and Decrees of the Sacred Congregations?

Resp. Affirmatively, namely of the Sacred Congregation of Rites (Gardell.), of the Council (Thesaur. Resol.), of Indulgences (Prinzip.).

Quaer. 7° Whence does it happen that some responses of the Sacred Congregations seem sometimes to contradict themselves?

Resp. This is accustomed to happen for a threefold cause. For in them there was question either of singular cases, which had to be resolved differently on account of diverse circumstances of places and things; or of doubtful questions not yet discussed, to which, if an immediate response must be given, the Congregations usually adhere to the more common opinion, not decisively, but doctrinally;¹ or of decisions, as they call them, a posteriori - not a priori - which are given not according to strict law and considered nakedly, but with account had of that special case, and then the decision is usually given with some addition, for example, affirmatively or negatively, as in the case, as it lies, etc.

174. • Quaer. 8° What is the sense of certain clauses which often occur in the responses of the Sacred Congregations?

Resp. Especially the following are accustomed to occur.

a) Dilata, that is, the response is deferred, so that the matter may be subjected to maturer examination, as being of difficult solution.

b) Affirmative et amplius, - Negative et amplius, that is, when the matter has been discussed enough and more than enough in the Sacred Congregation, and has been decided as it lies by full votes, such a question is no longer admitted.

c) Nihil, that is, the petition is not admitted, as unsuitable.

d) Relatum or Lectum, that is, when the request had been reported or read in the Sacred Congregation, it was not admitted.

e) Reponatur, or no response is given, but the petition is placed in the Archives of the Sacred Congregation.

f) Detur decretum generale. This obtains when there is question of a grave matter which is neglected by many.

g) Spectare ad Episcopum, or Orator adeat Episcopum, namely that he himself provide according to canonical ordinances, not according to his own whim.

h) Non congruere, - Non expedire, that is, the Congregation does not think it fitting that what is asked be conceded; therefore it does not will to grant the sought grace, nor is it granted.

i) Orator rem deferat ad Ordinarium et ejus judicio se dirigat, or the thing requested is not conceded by the Sacred Penitentiary, but is remitted to the Ordinary, so that, if he has the faculty, he may provide for the matter according to his prudence; otherwise he should either obtain the faculty, or, if he judges that this is not expedient, he should enjoin what must be enjoined.

j) In decretis, - In decisis, or the prayers, not heard and repeated by the petitioner, are not to be heard.

k) Ad mentem, or besides the solution of the doubt something else is observed or declared by the Sacred Congregation, which, if it is secret, is manifested only to those to whom the response is directed; otherwise it is added to writings publicly drawn up with these words: the sense is, etc.

l) Facto verbo cum Sanctissimo, or: Ad Dominum Secretarium cum Sanctissimo, or that the Congregation does not have the faculty of granting the grace, and therefore the Secretary is ordered to refer the Rescript of the Sacred Congregation to the Supreme Pontiff, who is accustomed to approve the judgment of the Congregation and to grant the grace.

m) Providebitur in casibus particularibus, or that the case which was proposed generically and indeterminately must be proposed determinately.

n) Gaudeat impetratis, or the petitioner ought to be content with the grace obtained, and the extension of the same, or another which is newly requested, is not conceded.

o) Sanctissimus annuit pro gratia, arbitrio et conscientiae Episcopi, or the grace has been conceded and nothing is lacking for it to have full effect except execution, which the delegate cannot deny unless perhaps there underlies a canonical cause, not set forth to the Holy See, which by law impedes it. (O) p. 479.

175. • Quaer. 9° What concerning Bulls, Briefs, and Pontifical Rescripts?

Resp. 1° Bulls are certain Constitutions of the Roman Pontiffs, regarding, for the most part, weightier business, and formerly written in Teutonic character, now in Latin, on parchment. They are called Bulls from the leaden seal adhering by small cords. But today, with certain exceptions, a seal of red color is impressed on the paper, bearing the images of the Apostles Peter and Paul, with the inscription of the name of the reigning Pontiff drawn around. Acta, T. XI, p. 465.

They receive various names from various objects. Some are gracious, which contain a free conferral. - Others of justice, which regard the administration of justice. - Others consistorial, which are dispatched in Consistory. - Others half-bulls, which are brought forth by a Pontiff not yet consecrated, and do not show his name on the seal. Bulls are cited by the words with which they begin; Bullaria are called collections of Bulls.

2° Briefs are certain Constitutions of the Roman Pontiffs for matters, for the most part, of lesser weight. They are dispatched through the Secretary of Briefs, written on white and thin parchment in Latin and in a polished character. They have a seal of red pigment, bearing the image of St. Peter exercising the fishing, and therefore they are said to be dispatched under the Ring of the Fisherman.

3° Rescripts are called the responses of Pontiffs to requests. There are two kinds of them. Some are issued in the manner of familiar letters, which the Supreme Pontiffs are accustomed to give either when they are asked by those with whom they have a particular relation of friendship, or when they are asked for counsel as learned and pious men; and no force of obliging is present in them, as they proceed more from courtesy of soul than from true authority. - Others are issued in the manner of Decrees by the Pontiffs as successors of St. Peter and Pastors and Teachers of the universal Church; and therefore the greatest force is present in them, since through them pontifical right and supreme jurisdiction are exercised.

176. • Quaer. 10° Do pontifical Letters and responses not inserted in the Body of Law have the force of law?

Resp. Affirmatively, if their authenticity is established, and, in the case in which according to what was said at n. 143. III they need promulgation, they have been sufficiently promulgated, namely if they are published in that way in which laws are accustomed to be published, or if from the usage and sense of the universal Church they have already been held for many centuries as authentic and sufficiently promulgated.¹