Case 1. The Promulgation of Law

Titius, the missionary rector in England, doubts whether he would incur the suspension which, in the Fourth Council of Westminster, decree XI, number 9, was enacted against ecclesiastics initiated into sacred orders who “are present at stage performances in public theaters or in places temporarily serving for the use of a public theater,” if he were present at performances which a certain confraternity of young people of both sexes was accustomed sometimes to give in the elementary schools of his mission. He therefore asks his bishop to resolve the doubt. The bishop refers the matter to a meeting of all the bishops which was to be held shortly afterward for conducting business. They decide that all performances other than those presented by boys or girls, even in elementary schools, are comprehended by the provincial law. The diocesan bishop communicates this decision to Titius and afterward to several of his other priests when occasion arises. Notwithstanding this decision, grave doubts about the proposed question still trouble Titius. Hence he asks:

1. To whom does it belong to interpret a law?

2. What kind of promulgation is required in order that a law may bind?

3. Who are subject to laws enacted in a provincial council?

4. What is to be said concerning the case?

1. To whom does it belong to interpret an ecclesiastical law?

Law is interpreted authentically by the legislator, and such interpretation has the force of law if it be duly promulgated. It is interpreted doctrinally by theologians and canonists, whose authority is worth as much as it proves. It receives a customary interpretation from the way in which it is observed, for custom is the best interpreter of law, and from the practice of the curia, or the way in which it is applied in the ecclesiastical courts.

2. What sort of promulgation is required that a law may bind?

All are agreed that due promulgation is required in order that a law may have binding force. Promulgation is not a mere diffusion of knowledge concerning the existence of a law procured through the public press or by similar means. It is a publication of the law made by lawful authority, with a view to imposing an obligation on subjects to act as the law prescribes. It is left to the legislative authority to decide how a law is to be promulgated. Sometimes a special mode of promulgation is laid down in the law itself. Thus the decree Ne temere, Aug. 2, 1907, was promulgated by the very fact of its being transmitted to the Ordinaries. By the apostolic constitution Promulgandi of Sept. 29, 1908, Pius X decreed that “henceforward the Pontifical constitutions, laws, decrees, and other ordinances of the Roman Pontiffs, of the Sacred Congregations, and of the Offices, inserted and published in the said Bulletin (Acta Apostolicae Sedis) with the authorization of the secretary or of the highest Official of the respective Congregation or

Office from which they emanate, in this, and only in this manner be considered as legally promulgated, whenever promulgation is necessary and the Holy See has not otherwise provided.”

Episcopal laws are generally promulgated by being read in synod or in the churches of the diocese.

3. Who are subject to laws made by a Provincial Council?

Laws made in a Provincial Synod after recognition by the Sacred Congregation of the Council and promulgation by the Metropolitan bind all members of the Church who have a domicil or quasi-domicil within the territory represented by the synod, and who are not exempted. Even the bishops are subject to provincial laws, although they can dispense in them in particular cases. The interpretation of provincial law made by bishops either singly or gathered together in bishops’ meetings, is not authentic, but rather doctrinal, although of course a bishop can if he pleases make a law for his own diocese.¹

1 Laurentius, Institutiones Jur. Eccles., n. 228.

4. The case. Titius, a missionary rector in England, doubted whether he would incur the suspension inflicted by provincial law by the fact itself on ecclesiastics in Sacred Orders who are present at stage plays in public theaters or in places serving for the time as public theaters, if he were to be present at a play given by a confraternity of young people of both sexes in the elementary schools of his mission. He referred the doubt to the bishop, who brought it before the other bishops at their meeting. The bishops decided that all plays given by others than mere children even in schools are comprehended in the law. The decision was communicated to Titius by his bishop, who on occasion communicated it to others as well. Notwithstanding this Titius still has grave doubts on the point.

It will be clear from what we said above that the decision of the bishops has not of itself the force of law. The main question is: Does the case come under the provincial law according to its natural signification? The chief difficulty is: Are elementary schools places serving for the time being as a public theater when a play is given in them? If private theatricals were held in a school for a few friends of the confraternity, it clearly would not be used as a public theater. But if the play is not private but public, in the sense that any one who chooses to present himself is admitted, then it would seem that the very fact of a play given there makes it a place serving the purpose of a public theater for the time. It is immaterial whether payment be required or not. So that it would seem that the decision given by the bishops was a declaration of the law according to its natural and obvious sense. Of course the sense of a positive law like the one with which we are concerned may be limited or extended by custom. This law is limited by custom in England to the extent that plays given by children do not come under it. In some dioceses it is said that custom goes further and excludes from the meaning of the law plays given by amateurs in schools and other such places. Whether in any particular diocese there exists such a custom against the law, and whether it is legitimate or not, are questions of fact to be settled by the evidence.