Chapter — Vermeersch, On Forbidden Books
Chapter IV: Abrogation of the Earlier Law
Words of the Constitution
18. I. At the end of the Preamble itself, the Supreme Pontiff sets down a most ample abrogation of the earlier law when he says: "We will that these alone have the force of law, the Rules published by order of the Holy Synod of Trent, the Observations, the Instruction, the Decrees, the Admonitions, and every other statute and command of Our predecessors concerning this matter being abrogated, with the sole exception of the Constitution Sollicita ac provida of Benedict XIV, which, just as it has been in force up to now, so we will to remain wholly in force for the future."
II. Therefore:
The statutes which were prefixed to the Index are abrogated
19. 1. By the first enumeration there are suppressed, under their proper indicated title, most of the general statutes which, in editions of the Index, were prefixed to the catalogue itself. They are, namely: the Rules of the Index, promulgated by order of the Sacred Tridentine Council; the Observations of Clement VIII on Rules IV and IX, and of Alexander VII on Rule X; the Instruction of Clement VIII for those who are to devote labor to books, both to be prohibited and to be expurgated, and also to be printed; the Decrees of Benedict XIV concerning prohibited books not expressly named in the Index; the Admonitions of the Sacred Congregation of the Index, March 4, 1878, January 7, 1836. The Constitution Sollicita ac provida of Benedict XIV is omitted, since it still remains in force; also the Mandate of Leo XII and the Most Recent Addition (concerning censures), which have material confirmation in the new Constitution.
And any other dispositions concerning this matter
Extent of this abrogation
As to extension
2. By the universal words which follow the enumeration, this abrogation is made most ample. But we declare its extensive amplitude thus: Excepting the Constitution Sollicita, which is expressly confirmed, and saving perhaps a future exception to be introduced by Decrees or Responses of the Congregations, every sanction of the superior pontifical law concerning the censorship or prohibition of books is suppressed. Nor does it matter whether it is a general or special law distinctively concerning this subject, or whether the disposition concerning censorship or prohibition is part of another law which principally treats another matter.
I say, saving perhaps a future exception. For it happens that the breadth of dispositions of this kind is afterwards sometimes opportunely tempered by "restrictive" Declarations of the Holy See. Thus, after the Constitution Apostolicae Sedis had been promulgated, which suppressed all censures latae sententiae of the superior law, it nevertheless wished the Declaration of Pius IX to remain in force, namely the excommunication laid down against missionaries who trade.1
Concerning the censorship or prohibition of books. For the Supreme Pontiff says: concerning this matter. Therefore it is not of itself repugnant that a special law be preserved which indeed does not prohibit a book, but subjects a certain use of it to a special solemnity. Cf. the things which we shall discuss concerning liturgical books.
Moreover, we prove our conclusion:
a) From the words by which, at the end of the Preface, the Supreme Pontiff both negatively abrogates every other statute and command concerning this matter, and positively designates his present Decrees as the single source of law in this matter; he wills that they alone have the force of law, and that the sacred Council for marking books use them alone.
b) From the end. The Holy Father wishes to effect this, that "a certain and clear norm of acting in this kind be available to all." Nothing contributes more to this end than to have, collected in a single Constitution, as in a certain Code, all the laws concerning the same matter. On the contrary, if particular dispositions which wander through various Constitutions and were already partly obsolete still had to be approached,2 who would not see with how many doubts and questions that effect would be impeded?
c) From the examples given in the Constitution itself. If he had wished a less ample abrogation, why in articles 47 and 48 would the Supreme Pontiff have judged that the excommunications latae sententiae promulgated by Pius IX in the recent Constitution Apostolicae Sedis had to be expressly confirmed? For those excommunications do not so much prohibit something in our matter as they are penal sanctions of an existing prohibition. Why, in articles 31, 32, and 34, did he have to recall special dispositions concerning documents pertaining to causes of beatification,3 and Decrees issued by the Sacred Congregation of Propaganda Fide for Missionaries?
d) From the fact that, if you circumscribe the abrogation to those statutes which were prefixed to the Index,4 or even to others which are general by their object, the clause "every other statute and command concerning this matter" accomplishes scarcely anything. For by express words those things are suppressed which were contained in the volume of the Index. But what other general statutes in force can be designated?
e) From authority. Dilgskron,5 Cardinal Gennari,6 Hollweck,7 Planchard,8 and Wernz9 seem to think with us; hence, for example, Gennari and Hollweck compare the effect of our Constitution with the similar effect which the Constitution Apostolicae Sedis had for censures latae sententiae.
That correction of law is odious, as J. V.10 objects, what obstacle does that present? Are we thereby forbidden to understand words according to their proper sense, and as the end of the law demands?
1 Promulgated by the encyclical letter of Propaganda Fide, March 29, 1873 (Collectanea P. F., nn. 351, 352).
2 Thus, those who hold that the sanctions of Urban VIII concerning the narration of miracles still remain in force must send the reader back to the works of Benedict XIV, so that he may fish out from them the texts of the two protestations which we have seen inserted in no book!
3 Sacred Congregation of Rites, July 23, 1661.
4 The distinguished Pennacchi, n. 34, seems to do this.
5 Analecta Ecclesiastica, 1897, pp. 129, 130, 226.
6 Monitor Ecclesiasticus, loc. cit., pp. 13, 14.
7 Op. cit., p. 16.
8 Revue Theologique Francaise, loc. cit., nn. 4-7.
9 N. 110, note 45.
10 Nouvelle Revue Theologique, vol. 30, p. 109.
Intrinsic force of the abrogation
20. III. Moreover, this abrogation has a most full efficacy, or in its intensity is very strong. The Supreme Pontiff wills that, from this promulgation of his, even those dispositions which materially sound like the ancient ones draw their force solely from it. Pius IX did not do thus in the Constitution Apostolicae Sedis, but confirmed the ancient law in the parts which agreed with his Constitution, so that they received their force also from the authority of the old canons. Therefore, while in declaring the Constitution of Pius IX one immediately had to look back to the earlier jurisprudence, here, on the contrary, above all from our Constitution itself, as Pennacchi says,1 that is, from the connected discourse, from the end of softening the law which the Legislator professes, questions are to be solved and the sense is to be determined.
Whether the suppressed Decrees are plainly useless
Only when this criterion is lacking, or remotely and secondarily, is appeal most usefully made to the understanding of the earlier age. For in this case the mind of the Supreme Pontiff becomes doubtful, and there is place for the principle of harmonizing the new law with the old. Cf. concerning these principles the letter Redditae Nobis, sections 9-13, which Benedict XIV, as a private Doctor, wrote on December 5, 1744.
1 Op. cit., n. 34. Cardinal Gennari is somewhat otherwise in Monitor Ecclesiasticus, loc. cit., p. 14. Cf. also Wernz, n. 110, note 45.
Whether customs have been suppressed
21. IV. What of custom, I mean of a particular custom of places which has been contrary to this law?
1. No clause of the law abrogates particular customs of places, if they have been legitimate. For they are not taken away by a general law, "unless it is expressly provided in the law itself."1 But in our Constitution no clause, not even generically, commemorates them, whereas the Constitution Apostolicae Sedis contains the most ample revocations of them. Nor does the end of our law demand this severity, so long as the matter concerns certain secondary mitigations which had prevailed even in those places where the laws of the Index undoubtedly were in force, and which can be composed with general obedience to our Constitution. We judge that these, if they have been legitimately prescribed, can still be retained. In explaining articles 7 and 41, examples of mitigations of this kind will occur. Genicot,2 the Archiv fur katholisches Kirchenrecht,3 and several others are with us; nevertheless Wernz is against us,4 since he considers only our written Constitution.
What custom can be legitimate
But the custom of plainly setting aside those prohibitions which contribute so greatly to protecting faith and morals seems to many not to be capable of being reasonable. So Fessler.5 Gopfert denies that this reason is effective,6 since this custom tended only to this: that those who would read reprehensible writings without detriment would not commit a sin against ecclesiastical laws, a case which otherwise would be very frequent. And in truth, can the faithful not, by the counsels of a prudent confessor, avoid the excessive danger of delusion, on account of which that custom would seem unreasonable?
Nevertheless, a general exemption from the laws of the Index, even one resting on custom, cannot stand with the manifest intention of the Legislator, by which he commands that "Catholic men throughout the whole world obey these decrees religiously." Yet he prudently knows how to urge the force of his law. Cf. below concerning England.
1 C. Licet 1, De Constitutionibus, in Sexto. Cf. Reiffenstuel, I, 4; or I, 2, nn. 498, 499; Laymann, Ius canonicum, in book 1, title 2, chapter 1 in Sexto, n. 12.
2 Loc. cit., I, n. 455.
3 Vol. 78, p. 187.
4 N. 110, note 46.
5 Cited by Arndt, op. cit., n. 90, p. 104.
6 Op. cit., p. 322.
What value the reformed catalogue of the Index preserves
22. V. Once the new Index has been promulgated, the former one is abrogated. Yet it preserves usefulness for declaring doubtful points, if perhaps any things occur in the new Index that are obscurely stated, or even for correcting material errors if any have slipped in when ancient Decrees are being referred to. For the Legislator certainly does not wish to change the Decrees to which he refers his subjects.