§ 1. On the Author of Ecclesiastical Law

139. PRINCIPLES. I. The Pope can make laws for the whole Christian world. For it is of faith that the Roman Pontiff has, by divine right, supreme, universal, and immediate jurisdiction in the Church. "For he is the head of the whole Church, Father and Doctor of all Christians, and to him, in Blessed Peter, the full power of feeding, ruling, and governing the universal Church was handed down by Our Lord Jesus Christ." Thus (after the Council of Florence) the Vatican Council (Sess. 4, c. 3).

140. The Roman Pontiff ordinarily establishes and promulgates his decrees through the Roman Congregations.¹ "By their voice," says Benedict XIV (Instit. 107, n. 6), "the Apostolic See declares its opinions" (cf. n. 169). But this must be noted, that the decrees of the Roman Congregations, if you except comprehensive declarations of laws, do not acquire the force of law unless the supreme confirmation of the Supreme Pontiff and the command of promulgation have been added. One Congregation can be excepted, namely the Congregation of Sacred Rites, which of itself, even when the Supreme Pontiff has not been consulted, has the right of establishing laws, as is drawn from the decree of May 23, 1846 approved by Pius IX. It is said: can be excepted, because there are not lacking those who deny this (Heiner, Kath. Kirchenr., 1912, p. 275), or admit it only with restriction (Piscetta, Theol. mor., I, n. 297).

The Constitution Sapienti consilio, issued by Pius X on June 29, 1908, clearly circumscribes the competence of each Congregation (cf. A. A. S., I, p. 9 ff.).

141. II. A Bishop, provided he has been canonically instituted and has taken real possession of his See, can make laws for his diocese. Doctors indeed disagree concerning the origin of this power. Some with Vasquez contend that it is derived immediately from Christ to the Bishop; others with St. Thomas and St. Antoninus say that it is derived only mediately and is communicated by the Supreme Pontiff. And this controversy indeed was agitated in the Council of Trent with great heat of minds. Today, however (Craisson, Man. Jur. can., n. 868), the second opinion has become much more common. Pius VI himself, in the Brief to the Bishop of Motula, September 16, 1788, asserts: "the episcopal dignity as to order is immediately from God, and as to jurisdiction from the Apostolic See."

It must be noted: 1. The Supreme Pontiff cannot take away from Bishops all legislative power, but he can indeed limit it, reserve some things to himself, etc. (cf. Lehmkuhl, I, n. 213).

2. The ordinations of Bishops are judged to be only precepts, not laws, unless they have been made in a diocesan Synod. Indeed a Bishop can make laws outside a Synod (after the Chapter has been heard); but in this case he must declare that he wishes to establish a stable law for all (Noldin, Gopfert, Lehmkuhl). It does not matter if the Chapter dissents, provided the matter does not concern things in which the consent of the Chapter, according to the Canons, is required for the validity of the act: for example, if they would yield to the prejudice of the Chapter or Clergy, that is, to the violation of a right already acquired (I, 104; H. Ap., II, 33). But where no Chapters yet exist, or where the right of the Chapter has been abrogated by contrary custom, the Bishop is not bound to hear it, as is self-evident (Konings, Theol. mor., n. 102, 3).

3. Archbishops and Patriarchs cannot make laws in suffragan dioceses, unless they have this from custom. They can, however, settle lawsuits brought from them to themselves.

4. Bishops can do nothing against common right; but they can fortify their own laws with sanction (S. C. C., 1878).

142. III. Ecumenical Councils for the whole Church, national Councils for a nation, provincial Councils for a province, diocesan Councils for a diocese, can establish laws. The reason is that each Council is gathered either by established law or by pontifical authority, but their decrees receive strength from the approval of the Supreme Pontiff.

It must be noted. 1. An ecumenical Council does not possess its authority unless the Pontiff presides over it through himself or through Legates, and confirms its decrees. For the Church cannot be represented when its head is absent; and an ecumenical Council derives its force and infallibility from the Supreme Pontiff (I, n. 121; ed. G., I, p. 107).

2. From the Constitution of Sixtus V, in the year 1588, the decrees of provincial Councils must be sent to the Sacred Congregation of the Council, so that they may be reviewed and, if necessary, amended. In the year 1896 the Holy Office declared that these Councils enjoy the power of making laws. Read the Constitution Sapienti consilio of Pius X, with the statute de Ordine servando, c. 7, a. 4, 6. The CONFIRMATION of Synods by the Apostolic See can be made in two ways, carefully to be distinguished: in common form, or in specific form: 1. Statutes are said to be confirmed in COMMON form if only it is said that nothing worthy of censure is contained; and regularly there is made only this simple revision, which attributes to them no new right or efficacy. 2. Confirmation is said to be made in SPECIFIC form if they are confirmed by Apostolic authority with the clause motu proprio and from certain knowledge. A statute confirmed in specific form, since it has put on the nature of a pontifical law, no one of inferiors may derogate from; indeed, from this confirmation a statute receives such powers that it prevails over common right to which it would be contrary. Thus Benedict XIV (de Syn., l. 13, c. 5, n. 11).

143. IV. The cathedral Chapter, when the see is vacant, enjoys legislative power, since it succeeds into the place of the Bishop (I, 104). Nevertheless, since jurisdiction, divided among many, is exercised with difficulty, the Council of Trent ordered that, within eight days from the known vacancy of the see, the Chapter elect a capitular Vicar, into whom all jurisdiction, whether ordinary or delegated by law, is irrevocably transferred. But when the see is vacant, neither the Chapter nor the capitular Vicar can abolish diocesan statutes. They can only dispense in them, or suspend their execution. "When the episcopal see is vacant," says Innocent III (Decret., l. 3, tit. 9, c. 1), "nothing ought to be innovated."

144. V. Finally, those persons enjoy legislative power to whom jurisdiction of the external forum has been communicated by the Supreme Pontiff, such as Prelates who obtain quasi-episcopal jurisdiction, for example Abbots by ordinary right, and Apostolic Vicars by delegated right. Likewise, Prelates of regulars, within the limits of their jurisdiction, can establish true laws, or perpetual statutes, whether in the general Assemblies of the Order, or in another way, according to their own constitutions approved by the Holy See.

But parish priests do not have jurisdiction of the external forum, and therefore cannot, not even for removing abuses, make laws or decree penalties. Hence, if they need external and judicial help, they must recur to the Bishop. Cf. Trent, Sess. 24, c. 1, de ref. Matrim.

Nor similarly can Abbesses or Superioresses of Nuns make laws properly so called. Nevertheless they can, for the right governance of the monastery, give precepts; indeed they can oblige under grave matter to observing them (I, 104; IV, 52). See Lugo, Resp. moral., l. 6, dub. 6, n. 8-9.

For nuns the Pope, the Bishop, the Superior general of orders of men who have an order of women annexed, can establish laws.

145. The RIGHT OF THE CHURCH is divided into written and unwritten.

I. WRITTEN RIGHT contains special or general ecclesiastical laws. The special laws for diverse places report the statutes of provincial Councils and Synods. Concordats also pertain to particular right. The general laws of the Church are contained in a threefold collection, by which ancient right, new right, and newest right are constituted.

Ancient right extends from the age of the Apostles to the twelfth century. Those old laws are found inserted in more recent right. New right runs from the twelfth century to the fourteenth century, and is contained in the Body of Canon Law. Newest right consists of all the laws which were established after the Body of Canon Law was closed. Concerning all these things the Canonists treat at length. Cf. Devoti, Inst. Can., Proleg., c. V, VI, VII.

II. UNWRITTEN RIGHT embraces tradition and custom. Tradition is the mandate of the legislator which, announced to peoples by the living voice, has come down even to us. Custom is right introduced by the very manners of men. Both draw obligation with them.

146. The BODY OF CANON LAW is the complex of ecclesiastical laws. It consists of six parts, which are: the Decree of Gratian, the Decretals, the Sixth, the Clementines, the Extravagants of John XXII, and the Common Extravagants.

The DECREE OF GRATIAN (that is, the collection of Decrees, published in the year 1151 under the title "Concordance of Discordant Canons," made by the work of Gratian, a monk from the Order of St. Benedict) consists of three parts; of which the first treats of ecclesiastical persons, and is divided into 101 distinctions, which again are distributed into chapters or canons. It is cited in the following way: Chapter Jejunium 7, dist. 76; or also: Dist. 76, c. 7. The second part, which treats of actions or of judgments, is divided into 36 causes; but the causes are divided into questions, and the questions into chapters, or canons. It is cited: Chapter Qui viderit 13, quest. 5, caus. 32; or: Caus. 32, q. 5, c. 13. The third part treats of sacred things, and consists of 5 distinctions, which are divided into various chapters or canons. It is cited: Chapter Est unitas 49, dist. 4, de consecrat.; or: De consecrat., dist. 4, c. 49.

The DECRETALS, or the Five Books of Decretals, collected by St. Raymond of Pennafort, O.P., by order of Gregory IX and published in the year 1234, have titles and chapters. They are cited in this way: Chapter Pervenit 28, de appellationibus; or Decretal., book 2, tit. 28, c. 28. Cf. De Angelis, Prael. Jur. can.

The SIXTH, or Sixth Book of the Decretals, is so called because it was added to the five books of the Decretals, and contains the Decretals edited from Gregory IX up to Boniface VIII. It came forth 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 6 (in the Sixth).

The CLEMENTINES, so called from Clement V, who after the Council of Vienne (over which he presided in the year 1311) ordered them to be collected. They consist of Constitutions edited either by Clement himself or by the Council of Vienne. John XXII promulgated these in the year 1317. They are cited: Clem., Si plures 3, de praebendis; or Book 3, tit. 2, c. 3, in the Clementines.

The EXTRAVAGANTS OF JOHN XXII are Constitutions which he himself edited in the earlier years of his Pontificate. They are called extravagants because they wander outside the Body of law collected up to this point. They are accustomed to be cited in this way: Extrav. Joann. XXII, tit. 4, c. 1, or: Extrav., tit. 4, c. 1.

The COMMON EXTRAVAGANTS, so called because they were edited by John XXII and by several other Pontiffs, are likewise divided into five books, and these into titles and chapters. They are cited: Extrav. comm., book 5, tit. 3, c. 2; or: Chapter Vas electionis, de haereticis, Extrav. comm.

Gregory XIII, by the Bull Cum pro munere pastorali, took care that the whole Body of Canon Law, diligently emended, be published at Rome. But it is certain that book VII of the Decretals and the Institutiones of Lancellotti, which are read appended at the end of the Body of Law, do not have the force of law, since they possess no Pontifical confirmation. The same must be said of the Decree of Gratian. For, although it was several times emended by the care of the Roman Pontiffs, and is everywhere cited by authors, nevertheless, Benedict XIV testifying (de Syn., l. 7, c. 15, n. 6), "it has been received among all that whatever is contained in it has only as much authority as it would have had of itself if it had never been inserted in the collection of Gratian." But the other parts of canon law universally oblige, unless they have been abrogated by a contrary law or legitimate custom (I, n. 105).