Article — Prümmer, Manuale Theologiae Moralis
Article I. On the Author of Human Law
165. We presuppose as certain and known from Apologetics that there belongs to the Church a true and perfect legislative power. For the Church is a perfect society, of its own right and altogether independent from any other society whatever. Wherefore Pius IX in the Syllabus condemned proposition 19: "The Church is not a true and perfect society, plainly free, nor does she possess her own proper and constant rights conferred upon her by her divine founder; but it belongs to the civil power to define what the rights of the Church are, and the limits within which she can exercise those same rights."1 - With these things presupposed, it must be said which persons in the Church have legislative power. They are the following:
1 Denz. n. 1719. Cf. also nn. 1504, 1505, 1866-1888.
166. 1. The Supreme Pontiff can exercise legislative power for the universal Church and any part of it, and indeed independently of bishops, or an ecumenical council, or any other human authority whatever.2 For Christ conferred upon Peter and all his legitimate successors, that is, the Roman Pontiffs, the power of ruling the whole Church, by these words: "I will give to you the keys of the kingdom of heaven,"3 and: "Feed my sheep."4
In our times the Supreme Pontiff is accustomed to exercise this legislative power by means of the Sacred Roman Congregations, which are eleven: 1. the Congregation of the Holy Office; 2. the Consistorial Congregation; 3. the Congregation concerning the discipline of the Sacraments; 4. the Congregation of the Council; 5. the Congregation set over the affairs of Religious Sodalities; 6. the Congregation of Propaganda Fide; 7. the Congregation of Sacred Rites; 8. the Ceremonial Congregation; 9. the Congregation for extraordinary ecclesiastical affairs; 10. the Congregation concerning seminaries and Universities of studies; 11. the Congregation for the Oriental Church. - To these Congregations there are added: 1. three tribunals, namely, the Sacred Penitentiary, the Sacred Rota, the Sacred Signatura; 2. five offices, namely, the Apostolic Chancery, the Apostolic Datary, the Apostolic Camera, the Secretariat of State, the Secretariat of Briefs to princes and of Latin letters. A longer and deeper treatment of all these things we leave to ecclesiastical law. The things necessary to be known for the moral theologian seem to be the following:
a) According to the present discipline, none of the enumerated Congregations (Tribunals and Offices) can make universal laws unless the express approval of the Supreme Pontiff accedes.5
b) Particular decrees and responses have the force of a precept for those only to whom they are directed.6 Nevertheless, even from particular decrees the mind of the legislator can be understood, and therefore such particular decrees can prudently be held as directive norms even in other regions, unless, however, this is specially forbidden.
Concerning the competence of the individual Congregations, these things are noted very briefly:
2 Cod. Iur. can. c. 218.
3 Matt. 16:19.
4 John 21:17.
5 "But in all and singular the above-enumerated Congregations, Tribunals, and Offices, let this above all be solemnly observed, that nothing grave and extraordinary be done unless it shall have first been signified by the moderators of the same to Us and to Our successors for the time being. Moreover, any decisions whatsoever, whether by way of grace or by way of justice, need pontifical approval, excepting those for which special faculties have been bestowed upon the moderators of the same Offices, Tribunals, and Congregations, and always excepting the sentences of the tribunal of the Sacred Rota and of the Signatura given concerning their competence" (Const. Sapienti consilio of June 29, 1908). The same is established by Cod. iur. can. c. 244, § 2.
6 Cod. Iur. can. c. 17, § 3.
167. 1. Congregation of the Holy Office, which before the Constitution Sapienti consilio of June 29, 1908, was also called the Congregation of the Holy Inquisition, is supreme among all the Congregations, and the Supreme Pontiff himself is its president. To its competence there especially pertain: a) to guard the doctrine of faith and morals, and therefore to judge concerning the crime of heresy or concerning suspicion of this crime; to pass censure upon books, and to grant license to read prohibited books; b) to give dispensation upon the impediments of mixed religion and disparity of cult; c) to handle those things which are required by the so-called "Pauline privilege"; d) to it also has been devolved that matter concerning indulgences which regards doctrine, but what regards their use and concessions pertains to the Sacred Penitentiary; e) it alone is competent concerning all those things which regard the Eucharistic fast for priests celebrating Mass.7
7 Ibid., c. 247.
168. 2. Consistorial Congregation, of which likewise the Supreme Pontiff himself is prefect, treats almost all things which pertain to bishops and secular prelates and to the governance of dioceses; for example, it belongs to it to found new dioceses, to divide dioceses already established, to choose or confirm new bishops, to institute the administrator of a diocese, to judge concerning the obligations of bishops, to receive the reports of bishops concerning their dioceses, etc. In places, however, which are subject to the Sacred Congregation of Propaganda Fide, all these things are reserved to this Congregation.8
8 Ibid., c. 248, § 2.
169. 3. Congregation concerning the discipline of the Sacraments was newly founded by Pius X through the Constitution Sapienti consilio of June 29, 1908, and to it was committed the whole legislation concerning the discipline of the sacraments; for example, matrimonial dispensations (except the two enumerated above which pertain to the Holy Office), dispensations for receiving orders, provided there is question of secular clerics; for religious clerics must obtain all dispensations from the Congregation set over the affairs of Religious Sodalities. - Those things which pertain to ceremonies in administering the sacraments have been entrusted to the Congregation of Sacred Rites; but those things which pertain to the dogmatic doctrine of the sacraments, for example, whether they are valid or not, are treated by the Holy Office.
170. 4. The Congregation of the Council takes care of the whole discipline of the secular clergy and of the Christian people. Wherefore it belongs to it to take care that the precepts of the Church are observed, of which kind are fasting (except the Eucharistic fast, which pertains to the Congregation concerning the discipline of the Sacraments or to the Holy Office), abstinence, tithes, the observance of feast days, with the faculty of relaxing the faithful from these laws; to moderate those things which regard pastors and canons, likewise those things which pertain to pious sodalities, confraternities, Mass stipends, benefices, offices, ecclesiastical goods, diocesan taxes, and other things of this kind. To the same belong all those things which refer to the celebration and recognition of provincial and plenary councils and to the meetings or conferences of bishops.
171. 5. The Congregation set over the affairs of Religious Sodalities is called "most occupied," because to it pertain the affairs of the whole religious state of both sexes with vows, whether solemn or simple; likewise the affairs of Third Orders, and of those assemblies which, without vows, lead a religious life in common. Wherefore to this Congregation is reserved the granting of all9 dispensations and faculties which Religious Sodalities seek for themselves, for example, from interstices, from vows emitted, of secularization, of appeal against the commands of superiors, etc. But it is plain that a religious confessor who, for example, seeks the faculty of absolving his penitent from some reserved case, must approach the Sacred Penitentiary and not this Congregation. - Likewise this Congregation settles controversies both between bishops and religious, and between religious themselves, and between religious families. But if affairs of this kind are to be treated in the contentious forum, then they pertain to the Sacred Rota.
9 Cf. Decree of March 24, 1919 (Act. Ap. Sed. XI, 251). The only thing excepted seems to be dispensation concerning the Eucharistic fast for priests celebrating Mass. For this dispensation is not granted except by the Holy Office (Cod. iur. can. c. 251, § 3).
172. 6. The Congregation of Propaganda Fide has very great powers, but only in mission lands. All ecclesiastical affairs of those lands are subject to its jurisdiction; nevertheless, to other special Congregations it must refer a) those things which pertain to faith; b) to matrimonial causes; c) to general norms concerning the discipline of sacred rites;9a d) those things which pertain to religious missionaries, insofar as they are Religious (but not insofar as they are missionaries).10 To the same Congregation likewise are subject societies of ecclesiastics and seminaries which have been founded exclusively for this end, that in them missionaries for foreign missions may be trained.
9a Cod. iur. can. c. 252, § 4. Notwithstanding this statute, the Sacred Congregation of Propaganda Fide seems again to have obtained broader faculties.
10 But some religious institutes of missionaries, for example, the Congregation of the Immaculate Heart of the Blessed Virgin Mary, have obtained the privilege that even as religious institutes they should be subject to the Congregation of Propaganda Fide.
173. 7. The Congregation of Sacred Rites treats all things pertaining to the liturgy; it bestows insignia and honorific privileges pertaining to the sacred rites or ceremonies; it conducts processes of beatification and canonization. Concerning the historical section for ancient causes cf. Act. Ap. Sed. XXII, 67. In the year 1903, on September 7, a new catalogue was issued containing the faculties granted to this Congregation.11
11 Cf. Acta Pont. I, 391 sqq.
174. 8. The Ceremonial Congregation provides concerning ceremonies to be carried out in the Pontifical Chapel and Hall, and also concerning the sacred functions which Cardinals perform outside the Pontifical Chapel; likewise it takes cognizance concerning the precedence of Cardinals and Legates whom various nations send to the Holy See.12
12 Cod. iur. can. c. 254.
175. 9. The Congregation for extraordinary ecclesiastical affairs is chiefly occupied with affairs which concern the Church and diverse civil governments, for example, in making or changing Concordats, and sometimes also in establishing or dividing dioceses and in naming bishops.13
13 Ibid., c. 255 and Letter of Pius XI of July 5, 1925 (Act. Ap. Sed. XVIII, 89).
176. 10. The Congregation concerning Seminaries and Universities of studies governs all those things which pertain to the discipline, temporal administration, and studies of seminaries;14 likewise it moderates studies in Catholic universities, even those which are administered by Religious; it gives the faculty of conferring academic degrees; it can also itself give to some learned man the title "doctor honoris causa."
14 From the Motu proprio of Benedict XV of November 4, 1915 (Act. Ap. Sed. VII, 493 sqq.) and from Cod. iur. can. c. 256. Cf. Act. Ap. Sed. XIX, 329 and 393, and XXII, 93 sqq.
177. 11. The Congregation for the Oriental Church treats all affairs which refer either to persons, or to discipline, or to the rites of the Oriental Churches; wherefore this Congregation, for Churches of the Oriental rite, possesses all the faculties which the above-mentioned Congregations obtain for Churches of the Latin rite, the competence of the Holy Office nevertheless remaining intact.15
These are the eleven Congregations now existing in the Roman Curia. Concerning the Tribunals and Offices of the Roman Curia there is no leisure here to act. Cf. our Manual of Canon Law, q. 104 sq. Concerning only the Tribunal of the Sacred Penitentiary, which sometimes the confessor must approach, let a few things be noted. According to the current discipline, the Sacred Penitentiary (ordinarily) now grants no dispensations for the external forum, as formerly used to happen. But for the internal forum it has ample powers even for Orientals (Act. Ap. Sed. XXII, 394): it grants absolutions from censures and reserved sins, gives condonations of ecclesiastical goods, sanations, matrimonial dispensations, etc.; moreover, it judges concerning all things which regard the use and concessions of indulgences.16
15 Cod. iur. can. c. 257 and Act. Ap. Sed. IX (1917), 529 sqq.
16 Benedict XV, Motu proprio of March 25, 1917 (Act. Ap. Sed. IX, 167). Cf. Act. Ap. Sed. XXVII, 97.
178. 2. Ecumenical councils, which are assemblies of bishops convoked from the whole world for judging and establishing concerning ecclesiastical matters under the authority of the Roman Pontiff, have the most ample faculty of making laws. Bishops gathered in an ecumenical council are not mere counselors of the Pope, but true legislators; whence also each one is accustomed to subscribe to the Acts of the council: "I, defining, have subscribed." But in order that an ecumenical Council truly have law-making power, it is required that it be rightly convoked, rightly celebrated, and rightly confirmed. Especially the last is required, namely, true confirmation by the Supreme Pontiff; if this is lacking, the decrees of the council are not true laws.17 More broadly concerning all these things is treated in ecclesiastical law.18 Since the Pope, as supreme ecclesiastical legislator, is above every council, he can also change all laws of ecclesiastical right made by some ecumenical council. Thus, for example, Pius X changed the law of clandestinity made by the Council of Trent.
17 Cod. iur. can. c. 227.
18 Cf. our Manuale iur. can. q. 21.
179. 3. Bishops can make laws for their own diocese, and indeed either immediately by themselves, or by means of plenary or provincial councils,19 or diocesan synods. The reason for this law-making power is that bishops have been placed by the Holy Spirit "to rule the Church of God."20 Concerning this law-making power it must be noted: a) in diocesan synods legislative power belongs to the bishop alone, but not to pastors and others convoked to them;21 b) decrees of a plenary or provincial council oblige in the individual dioceses of that kingdom or province; c) bishops can indeed by their own authority dispense in laws which have been made in a diocesan synod, but not in laws of provincial and plenary councils, except in particular cases and for a just cause.22
The reason is that bishops are above a diocesan synod, but are subject to a provincial as well as a plenary council rightly approved or reviewed; but in a particular case they can dispense in the statutes of such councils.23
Concerning Other Ecclesiastical Legislators. Besides the legislators enumerated, there still exist several others in the Church, for example, legates a latere, apostolic nuncios, capitular vicars, regular superiors, general chapters, or congregations in religious institutes, etc. Concerning all these we cannot treat here in Moral Theology, since this matter pertains to ecclesiastical law, and their legislative power often depends upon an altogether special delegation.
Abbesses and other religious superioresses can indeed make precepts and statutes (obliging even in conscience), but not laws properly so called; for they lack true and perfect ecclesiastical jurisdiction.
19 Cf. Holy Office, September 10 (30), 1896, in Collect. de Prop. Fide n. 1952; cf. also ibid. n. 2013.
20 Acts 20:28. That this text is to be understood of bishops is clear from the Council of Trent, sess. 6, c. 4, on orders.
21 Benedict XIV, De syn. dioec. l. 2, c. 5, n. 6-8; Cod. iur. can. c. 362.
22 Cod. iur. can. c. 291.
23 Cf. Bonacina, De leg. disp. 1, q. 2, punct. 1, n. 14, and Act. Conc. plen. Americae latin. (a. 1899), n. 995.
180. On civil law-making power. That there exists in civil society a true law-making power, and that it is independent in its own order, there is no reason for us to prove.24 For civil society is also a perfect society and consequently has true legislative, judicial, and coercive power. But who in diverse kingdoms is able to make laws depends upon the form of government, or of the so-called "Constitution." In a few kingdoms of today the supreme prince alone (whether male or female) can make laws; but in several other kingdoms the supreme prince ratifies laws made by the legislative body, for example, by Parliament. Even a queen, if she is truly the prince, can make laws, for a woman is capable of civil jurisdiction.
24 Cf. Leo XIII, encyclical Diuturnum of June 20, 1881, on civil principality, and encyclical Immortale Dei of November 1, 1885.