Article I: On Legislative Power

138. NOTIONS. Legislative power is the legitimate authority of making laws. It is a certain species of jurisdiction, whose notion therefore must be set forth beforehand.

JURISDICTION (from right and to speak) is the faculty of someone having public authority and eminence over others, for their rule and governance. Therefore every act which a Superior exercises from a public office belongs to jurisdiction, such as to make laws, to dispense in them, to judge, to punish, etc. (Polman, l. 2, n. 495).

DIVISION. It is divided 1. Into civil and ecclesiastical. The former concerns secular causes and the temporal governance of the republic. The latter regards causes pertaining to the worship of God and spiritual good.

This, by reason of origin, is either of divine right or of merely ecclesiastical right. It is of divine right if it has been granted immediately by God, as the power of the Roman Pontiff, or at least if it has been divinely instituted, as the power of a Bishop; but it is of merely ecclesiastical right if it has been given from the ordination of the Church, for example, through law or privilege, as the authority of a regular Prelate, Vicar general, etc. Now, by reason of OBJECT, it is of the internal or external forum. Jurisdiction of the internal forum (or of conscience) has for its object causes which regard the relations of man to God alone, for example, to absolve from sins, to dispense in vows, in occult things, etc. It is ordered primarily and directly to the advantage and governance of the individual, whether it is exercised in the penitential forum or outside it. Jurisdiction of the external forum has for its object causes which regard the relations of man to the external community of the Church, for example, to confer benefices, to dispense in a public irregularity. It is ordered primarily and directly to the good of the community.

2. Into contentious or judicial jurisdiction and voluntary or extrajudicial jurisdiction.

The former is ordered to settling lawsuits, and must be exercised according to the rules prescribed by law. It belongs to this to define civil and criminal causes, which demand their own tribunal, to decree penalties, etc. It is called contentious from the contention of the parties. The latter regards ordinary governance and is exercised according to prudent judgment, according to rules of equity. It belongs to this to legitimate, to adopt, to dispense, to confer offices and benefices, etc. This can also be exercised validly, indeed (at least for the most part) lawfully, outside one's own territory. But contentious jurisdiction cannot be exercised in another's territory unless the explicit or at least tacit consent both of the judge of this place and of the contending parties themselves is added.

3. Into ordinary and delegated.

Ordinary is that which belongs to someone by proper right, by reason of office or dignity, to which it has been stably annexed by force of some law, custom, or privilege, such as is the jurisdiction of the Supreme Pontiff, of a Bishop, of a regular Prelate, etc. Delegated is that which is not had from proper right, but which is legitimately given by one having ordinary jurisdiction.

These things concerning jurisdiction having been premised, let us speak: 1. concerning the author of ecclesiastical law; 2. concerning the author of civil law.