Acceptance of a law

LEGISLATIVE authority in the Church is derived from God and not from the people, so that an ecclesiastical law receives its binding force not from the will of the people but from the will of the legislator, made known by the promulgation of a law. An ecclesiastical law, then, binds those for whom it is made, independently of the acceptance of the law by the people (Can. 218).

Practically, however, if a law is not accepted or acted on by the people, it may in various circumstances be said no longer to be of obligation. If the law was never put in force, and acts contrary to it were known to and connived at by authority, the law may be said not to bind for want of acceptance. Really it does not bind because the ruler does not urge it, but tacitly consents to its non-observance. Similarly, if the greater and saner portion of a community do not observe a law, it may be presumed that it is not the legislator’s will to bind the rest. It is obvious that there is question here only of disciplinary laws, for if the law decides matters of faith, obedience is at once imperative.

It is the duty of Bishops to make known to their people and to execute new laws made by the Holy See, especially if the new laws were sent to them for the purpose, or if it is thought likely that they will be useful to the diocese.

If, however, a Bishop thinks that a new pontifical law is not suited to his diocese, he not only may, but it is his duty to represent the matter to the Holy See, and in the meantime the obligation of the law is suspended. If the Holy See, after weighing the matter, insists on the observance of the law, obedience must be rendered to lawful authority. + Ben. XIV, De Synodo, 9, c. 8.

IV. Quality, or species, of obligation. The obligation of a law or precept is the obligation of that virtue from whose motive or formal object the law or precept was passed. The reason is that the species of obligation must be drawn from the species of moral goodness which is intended and imposed by the legislator or preceptor. But the species of moral goodness intended and imposed by the legislator is the same as the motive from which laws or precepts are passed. Hence, for example, the law of the Lenten fast induces an obligation of the virtue of abstinence; the law of the natural fast before Holy Communion induces an obligation of the virtue of religion. Consequently, he who transgresses the former sins against abstinence; he who transgresses the latter sins against religion (St. Alphonsus, V, 33). These things will be clearer once the motives from which diverse laws and precepts are passed have been set forth. Now:

1. Natural laws and positive-divine laws are passed from the motive of that virtue whose moral goodness the act has by its nature; for God is considered to intend this moral goodness. Hence, for example, the act of rendering to someone his strict right obliges from commutative justice.

2. Human laws are considered to have been passed in this way:

a) If the act imposed by its nature has the moral goodness of some virtue, the law is considered to have been passed from the motive of that virtue; for the legislator is deservedly presumed to intend that moral goodness. Nevertheless it can happen that the legislator "draws the act to some other special virtue, or to opposition with some other special virtue" (St. Alphonsus, V, 33); suppose the case in which the Church prohibits, also from the motive of religion, an act unjust by its nature, of which sort is, for example, the sale of a sacred thing for a price greater than the value of the material. Then the seller sins both against justice and against religion (St. Alphonsus, loc. cit.). It can also happen that the legislator is induced extrinsically or remotely by a motive other than the moral goodness which is in the act to pass the law. Thus, for example, the Church is also led by the motive of religion when she prescribes that a fast be observed before certain feasts. But this does not prevent the legislator, in the precept itself, from regarding only the moral goodness which is in the act; hence one who does not observe a fast of this sort sins against abstinence alone, and not against religion.

b) If the act imposed is indifferent by its nature, it should be gathered from the declaration of the legislator, from the words of the law, or from the circumstances, from the motive of which virtue the law was passed.

Corollary. He who transgresses a law does not sin against obedience, because in fact laws are not passed from the motive of that virtue.

3. By what reason precepts, strictly so called, are passed is difficult to determine. We think it must be said as follows:

a) Parents and masters, considered according to common estimation, are presumed to command from the motive of obedience; and this cannot be denied if there is question of an act which by its nature does not have moral goodness. Hence the transgressor of the precept commits a sin of disobedience; this does not prevent the prohibited matter from also being able to contain an injury of another virtue, for example, chastity.

b) Superiors of religious,¹ considered according to common estimation, are presumed to command from the motive of obedience if they command without addition, and this can scarcely be denied if there is question of an indifferent act; from the motive of religion, if they add: in virtue of obedience, or: in virtue, or by force, of the vow. Nevertheless, as was said about parents, the prohibited matter can also involve an injury of another virtue.

c) A vow obliges from religion alone, unless the thing promised to God is already owed from elsewhere.

Corollary. Although any sin, as we shall note in its own place, involves manifold foulness, such as disobedience, ingratitude, irreverence toward God, etc., nevertheless those foulnesses or malices are not found in the sin according to formal species, because they are not prohibited from the formal motive of obedience, gratitude, reverence, etc. Hence also, which it helps to note specifically because of the singular difficulty, a sin of injustice, for example theft, does not contain the species of sin against charity, because an act of injustice, for example theft, is not prohibited from the motive of charity, but from the motive of justice; for the act of leaving or restoring to each one his own right by its nature involves the moral goodness of justice, not of charity. Likewise a sin against charity, for example scandal, is not opposed to justice, because the act by which someone is for another an occasion of spiritual ruin does not involve the moral evil of injustice.

¹ Cf. Raus, Obedientia religiosa ut est virtus et votum.

III. Acceptance of propositions condemned by a note lower than heresy. Besides the sins explained under I and II, which exclude faith, there are others by which believers who retain faith in some way sin against faith, for example if someone culpably is ignorant of things which according to the above notes must be known; likewise if someone maintains propositions condemned by a note lower than heresy; concerning these we must speak more fully.¹

I set forth first can. 1324: "It is not enough to avoid heretical depravity, but it is also necessary diligently to flee those errors which more or less approach it; wherefore all must also observe the constitutions and decrees by which evil opinions of this sort have been proscribed and prohibited by the Holy See." And can. 2317: "Those who pertinaciously teach or defend, whether publicly or privately, a doctrine which has indeed been condemned by the Apostolic See or by a General Council, but not as formally heretical, are to be barred from the ministry of preaching the word of God or hearing sacramental confessions and from any office of teaching, without prejudice to other penalties which the sentence of condemnation may perhaps have established, or which the Ordinary, after warning, has judged necessary for repairing scandal."

1. What are the lower notes? Among these:

a) Some directly signify the falsity of a proposition. Thus: 1. proximate to heresy is that which denies what is proximate to faith, that is, what is commonly held as revealed, but not yet defined as such by the Church; 2. erroneous is that which denies what is theologically certain, that is, what, by mediation of another naturally evident truth, is certainly gathered from revealed doctrine; 3. proximate to error is that which denies what is most probably deduced from revealed doctrine; 4. rash is that which is defended against the common opinion without a solid argument.

b) Others directly indicate that some proposition is brought forward incautiously. Thus: 1. savoring of heresy or suspected of heresy is that which, after inspection of the words and various circumstances, gives occasion for suspecting that some other heresy is in the author; 2. savoring of error or suspected of error is that which gives occasion for suspecting that another erroneous proposition is admitted by the author; 3. ill-sounding is that by which matters pertaining to faith and morals are brought forward beside and against the received manner of speaking; 4. offensive to pious ears is that which states something that weakens the piety of the faithful, or expresses something in such a way that a similar effect follows.

c) Others directly designate some evil influence of a proposition. Thus: 1. scandalous is that which gives those hearing it occasion of spiritual ruin; 2. contumelious is that which is opposed to the honor due to another; it is called blasphemous if it inflicts injury upon God or the things of God as such; 3. schismatic is that which is opposed to the unity of the Church.

2. To what extent must account be taken of the lower notes? Account must be taken of them as follows:

a) If some note has been inflicted on some doctrine by the Church, that doctrine must be held as such, for example as scandalous, contumelious, etc. (can. 1324, 2317). Yet one who does not take account of the lower notes, although he sins, nevertheless is not thereby already a heretic. Sometimes, however, he will easily fall into heresy, for example if someone admits a proposition which is called erroneous; for one who denies what is certainly gathered from revealed doctrine by mediation of some naturally evident truth will easily deny revealed doctrine itself. Besides this, those who externally do not take account of the lower notes must also be accused of scandal.

b) As regards doctrinal declarations issued either by the Supreme Pontiff, yet not by definitive judgment, or by a Congregation which can issue declarations of this sort, as, for example, the Holy Office, as regards these declarations, I say:

alpha) Some subjection is certainly required, as is clear from the Apostolic Letter of Pius IX to the Archbishop of Munich;² likewise from the decree of the Holy Office Lamentabili,³ which Pius X confirmed by his Motu Proprio on November 18, 1907; finally, from those things which Pius X declares in the same Motu Proprio concerning the Biblical Commission: "We declare for the present and expressly command that all, every one, are bound in conscience by the duty of subjecting themselves to the judgments of the Pontifical Council on Biblical matters, pertaining to doctrine..., just as to the decrees of the Sacred Congregations pertaining to doctrine and approved by the Pontiff; nor can all those who impugn such judgments in words or writings avoid the mark both of withheld obedience and of rashness, or therefore be free from grave fault." Besides, it seems altogether consonant that the Church can in some way delegate to others the power of the magisterium, which is not merely doctrinal but authoritative. Now to this right and faculty there corresponds in subjects the obligation of taking account of the things which are taught by those to whom the aforesaid power has in fact in some way been delegated.

beta) External subjection is certainly required; for this at least must be gathered from the documents cited. Indeed, that it is required under grave obligation is clear both from the fact that a grave matter is involved, and from the cited words of the Motu Proprio of Pius X.

gamma) Authors quite commonly teach that even internal assent is required, and it is rightly deduced from the Letter of Pius IX and the obvious sense of the other documents. Nor should you object that the Church lacks the faculty of imposing merely internal acts. It cannot impose acts of this sort by its own authority, but it can do so by vicarious authority (n. 117). Firm assent, however, is not required, because definitive decrees are not in question; rather, an opinionative assent suffices, an assent which, moreover, the said decrees truly deserve. For first, the Sacred Congregations consist of men most versed in the matters which pertain to their province. Then those men in Rome have continual intercourse both with the Supreme Pontiff and with the whole episcopate, so that the sense of the universal magisterium becomes known to them more easily. Finally, it is difficult to deny that, especially upon those to whom the Supreme Pontiff has in some measure delegated his magisterium, something of the divine assistance promised to the Church redounds. Besides this, opinionative assent seems to be required under grave obligation, because the matter seems grave. Yet:

delta) It is licit, provided internal assent is furnished, to study further the matter which the decrees regard, even with the intention of inquiring whether they are true or not. This seems to follow from the nature of the thing, since the Roman Congregations cannot settle the question. But when the question has not been settled, it is licit to undertake further inquiry, and that even with the intention that the truth may be made clear. This is confirmed by the letters given by Cardinal Vaughan to Wilfrid Ward.⁴

epsilon) It is licit afterward, for a very grave cause, to withhold assent first given, indeed even to adhere to the contrary opinion; for example, as regards a learned man, if, after the matter has been investigated further, he finds a new and grave reason; as regards the less learned, if other grave and God-fearing authors already withhold assent or adhere to the contrary opinion.

Now that reason for denying assent, indeed for adhering to the contrary opinion, will occur more easily if the matter concerns decrees of the Pontifical Council on Biblical matters than if it concerns decrees of other Congregations, in other words, if it concerns scriptural matter rather than dogmatic or moral matter. For in biblical matters, whose decision often depends on external arguments both critical and historical, new arguments are more easily found than in a moral or dogmatic matter, which is often decided by internal arguments alone. For the same reason it seems it must be said that an assent equally efficacious as that owed to decrees of other Congregations is not owed to decrees of the Pontifical Council on Biblical matters. For since it can happen more easily that new arguments are found, the fear of error is greater. Indeed I would not say that decrees of the Pontifical Council have less authority in themselves; but the condition on account of which it is licit to withhold assent will more easily exist; hence the fear of erring is greater.

zeta) Finally, it is not illicit to propose new arguments which have been found, certainly with due reverence.

¹ Cf. Waffelaert, Annotationes in tractatum de virtutibus theologicis, n. 229 sq.; besides, different authors explain several lower notes in different ways.

² December 21, 1863.

³ July 3, 1907.

⁴ Cf. The Guardian, June 4, 1897.

II. To distributive justice is opposed the acceptance of persons, as it is called.

"For the equality of distributive justice consists in this, that different things are assigned to different persons according to proportion to the dignities of persons. Therefore, if someone considers that property of the person on account of which that which is conferred on him is owed to him, there will not be acceptance of the person, but of the cause. ... For example, if someone promotes another to a teaching office on account of sufficiency of knowledge, here the due cause is considered, not the person; but if someone considers, in him on whom he confers something, not that on account of which what is given to him would be proportionate or due to him, but only this, that he is this man, for example Peter or Martin, there is here acceptance of person, because something is attributed to him not on account of some cause which makes him worthy, but is attributed simply to the person.

"Moreover, whatever condition does not make toward the cause on account of which he is worthy of this gift is referred to the person: for example, if someone promotes another to prelacy or to a teaching office because he is rich, or because he is his blood-relative, there is acceptance of person. Yet it happens that some condition of a person makes him worthy with respect to one thing, and not with respect to another; as blood-relationship makes someone worthy that he be appointed heir of an estate, but not that an ecclesiastical prelacy be conferred on him. And therefore the same condition of person, considered in one matter, makes acceptance of person, but in another does not make it.

"Thus, therefore, it is clear that acceptance of persons is opposed to distributive justice in this, that action is taken apart from proportion" (St. Thomas, II-II, q. 63, a. 1).

98. • Acceptance of law is the submission by which subjects, at least as to the greater and sounder part, formally or virtually accept a law.

Principles. - I. Per se, law as to force of obliging in no way depends on the acceptance of the people; otherwise, together with the power of the Superior, all authority of laws would collapse, and therefore the subversion of the whole social order would follow. It is also clear from proposition 28 condemned by Alexander VII, which lies thus: The people do not sin, even if without any cause they do not receive a law promulgated by the Prince ¹. - Thus all.

¹ Yet the condemnation in reality strikes only those who say that there is no sin even when without any cause the law is not received.

And indeed the Salmanticenses (On Law, ch. 1, nos. 98 and 101) less considerately accuse very many theologians and canonists, as though they had taught that laws, not only civil but also ecclesiastical and indeed even Pontifical, borrow force of obliging from the acceptance of the people. But now the Doctors alleged there in reality intend hardly anything other than what the Author proposes here in the second principle.

II. Per accidens, sometimes a law not accepted does not oblige, by reason of the tacit or express consent of the Superior, or by reason of a privilege or tolerated custom. It is clear from practice in various cases, and from the common consent of theologians. - St. Lig., no. 138.

99. Questions. - QUESTION 1. Whether a law obliges if the greater and sounder part of the people has not accepted it?

I answer. No, if the Prince does not urge it; for although the first ones not accepting the law sinned ², nevertheless the others are free from fault on account of the presumed consent of the Superior. - St. Lig., nos. 137-139.

² Since the Doctors unanimously agree, generally speaking, that those sin who are the first not to receive a law promulgated by the Prince, yet they establish otherwise when the greater and sounder part of the people, which is the Author's hypothesis, has not accepted the law. But the reason is clear, because the sounder part of the people consists of learned, upright, and prudent men. Moreover these, and very many almost all who adhere to these, would not resist a law unless some grave inconvenience, or scandal, or disturbance were rightly feared from it: which certainly effect that by the help of epikeia the will of the Prince can be benignly conjectured, and therefore the obligation of the law can be considered suspended until, either through appeal, if the law came from an inferior magistrate, or through a supplication offered to the Prince, matters may be fittingly arranged. And thus indeed the Doctors commonly. Therefore the Salmanticenses (On Law, ch. 1, no. 107), from whom St. Alphonsus (book 1, no. 139), and from St. Alphonsus the Author borrowed these things, did not well join to the present hypothesis a response which agrees with a very different hypothesis.

QUESTION 2. Whether a law obliges in doubt whether it has been accepted?

I answer affirmatively, because it must be presumed accepted, unless the contrary is clear: for the fact is presumed which by law had to be done, according to the rule reported above, no. 76. - St. Lig., no. 97.

QUESTION 3. Whether a law of the Church obliges which, some civil government prohibiting it, was not accepted?

I answer affirmatively per se, because the Church received her power from Christ, not however from the civil power; and therefore she is altogether independent of it. For to her it was said by Christ: Whatever thou shalt bind..., shall be bound, etc. Matt. 16. 19. - St. Lig., no. 137.

QUESTION 4. Whether Bishops can refuse to admit pontifical laws?

It must be denied. For Bishops, although they are Princes in their own Churches, are nevertheless subject to the Roman Pontiff, the immediate Vicar of Christ on earth, and the head and governor of the whole Church. Therefore they must obey him, and thus provide an example of obedience to their own subjects, by promulgating the pontifical law and procuring its observance in their diocese. Except, however, if grave reasons stand in the way; for then Bishops not only can, but ought to explain these reasons to the Holy See, but afterward they will be held to acquiesce in its definition. - See Benedict XIV, On the Synod, book 9, ch. 8.

271. In order that ecclesiastical law may oblige, it in no way needs the acceptance of the community or of secular authority.

1. It does not need the acceptance of the community; for ecclesiastical power does not come from the community, but from Christ Himself, as was proved in the Treatise on the Church. Hence the force of pontifical laws per se does not depend upon the acceptance of the bishops, since they are bound to obey the Roman Pontiff even in those things which regard the discipline and government of the Church; nor does the force of episcopal laws depend of itself upon the acceptance of priests, since they ought to obey their bishops.

Yet if some bishop understands that some pontifical constitution, concerning some head of discipline, can induce some harmful effect in his diocese, he not only can, but even ought, to represent his reasons to the Roman Pontiff.¹ "Nor," says Benedict XIV (loc. cit.), "have the Roman Pontiffs ever refused to lend an ear to the reasons of inferiors; and, as often as they recognized these to be sufficiently valid, they in no way refused to exempt some provinces or dioceses from the law of their general constitutions, as to that kind of discipline of which we are now treating." - Now, during the whole time of supplication, the obligation of the law is more probably suspended;² but when the Apostolic See has pronounced judgment, one must stand wholly by this.

¹ Thus Benedict XIV, op. cit., lib. IX, c. 8, n. 3.

² Reiffenstuel, in tit. De Constitut., n. 145.

272. 2. It does not need the acceptance of the civil authority, or the royal placet. Sometimes princes have opposed the promulgation of ecclesiastical laws in their kingdom, or prohibited pontifical bulls from entering the kingdom without the royal placet.³ This abuse, reproved many times by the Supreme Pontiffs, Vatican thus condemned:⁴ "Wherefore we condemn and reprobate the opinions of those who say that this communication of the supreme head with pastors and flocks can licitly be impeded, or who make the same subject to secular power, so that they contend that those things which are established by the Apostolic See or by its authority for the government of the Church have no force and value unless they are confirmed by the placet of the secular power." In fact the Church is a complete society, independent from the State (De Ecclesia, n. 109-110), and in spiritual matters she is endowed with supreme authority.

³ The royal placet, among others, was advocated by Van Essen, De promulg. legis et de placito regio; whom these refuted: Zaccaria, Antifebronius vindicatus, t. IV, diss. 12; Bouix, op. cit., p. 11, sect. 2, c. 4; Tarquini, diss. de placito regio; Cavagnis, Instit. juris publici, ed. 3a, t. II, lib. III, n. 2-23.

⁴ Vatican, sess. IV, c. 3 (Denzing., n. 1675).

Yet sometimes the Church, for the good of peace and to avoid greater evils, tolerates that the royal placet be obtained by bishops; sometimes also, in concordats, some use of the placet is conceded.

200. Notion. The promulgation of a law is its authentic manifestation made by the legislator. Promulgation is distinguished both from the divulgation and from the notice of the law. For promulgation is the public announcement of a law made by command of the legislator with some solemnity according to received usage; but divulgation is the declaration of the promulgation itself made by trustworthy private persons.⁸⁷ But notice or knowledge of the law is something subjective, namely, although the law has been sufficiently promulgated and indeed even divulged, nevertheless it can be unknown by some subjects. It is plain of itself that divulgation is not required for inducing the obligation of a law; on the contrary, knowledge of the law is required in order that the law oblige in second act, or that its transgression be formally sinful. But it is asked whether even promulgation is necessary for inducing the obligation of law.

⁸⁷ Cf. Billuart, De leg. diss. 3, a. 2.

201. Necessity of promulgation. Although promulgation more truly does not pertain to the very essence of law, as was said above,⁸⁸ nevertheless no human law actually obliges before it has been authentically promulgated. For it would be true tyranny if a human legislator wished to urge the observance of some law before subjects could even arrive at authentic notice of the law. But authentic notice of a law cannot be had without authentic promulgation. Whence it is said in the Decretals:⁸⁹ "It is not necessary, when a constitution is solemnly issued or publicly promulgated, to inculcate knowledge of it into the ears of each one by a special mandate or letters; but this alone suffices, that he who knows it to have been solemnly issued or publicly promulgated is held to its observance." - By these words is indicated not only the necessity of promulgation, but also when sufficient promulgation is judged to be present. For it is not necessary for sufficient promulgation that the law be manifested to each subject individually or actually be known, but it is required and suffices that each subject can (morally speaking) have knowledge of the law.

⁸⁸ n. 143 note.

⁸⁹ c. 1, X, 1, 5; cf. Cod. iur. can. c. 8, § 1.

202. Mode of promulgation. a) The mode of promulgation for civil laws neither was nor is the same in all regions. Today civil laws are usually promulgated in some so-called official gazette.

b) Laws of the Supreme Pontiff formerly were affixed to the doors of Basilicas, or "at the entrance of Campo de' Fiori,"⁹⁰ and thus were sometimes presumed to have been sufficiently promulgated. Sometimes they were also transmitted to individual bishops or other ecclesiastical superiors. But now these pontifical laws are promulgated by publication in the official commentary of the Acta Apostolicae Sedis, unless in particular cases another mode of promulgating has been prescribed; and they exert their force only when three months have been completed from the day which is placed on the number of the Acta, unless from the nature of the matter (for example, a declaration of divine right) they bind immediately, or in the law itself a shorter or longer vacancy has been specially and expressly established.⁹¹ Hence, for example, if the periodical of the Acta Apostolicae Sedis was issued on January 1, all laws published in it ordinarily do not oblige except from April 1 beginning, although perhaps they were made before January 1.

c) Episcopal laws begin to oblige immediately from promulgation, unless something else is provided in them; but the mode of promulgation is determined by the bishop himself.⁹² According to the practice now commonly in force, episcopal laws are usually promulgated by so-called pastoral letters or in the official diocesan periodical gazette. - As to the laws of other prelates, particular statutes must be attended to.

⁹⁰ Cf. our Man. iur. can. q. 19: "in acie campi Florae," that is, "at the entrance of the flower market."

⁹¹ Cod. iur. can. c. 9. Concerning the computation of time see c. 34, § 3.

⁹² Cod. iur. can. c. 335, § 2.

203. Acceptance a) on the part of the people is not necessary in order that human laws induce obligation. This indeed is plain of itself for ecclesiastical laws, because the legislative power of the Church by no means depends upon the people, but upon Christ himself. The same also holds for civil law, at least if these laws are just and if the so-called plebiscite is not required, as still sometimes comes into use in Switzerland. But the reason is that otherwise all authority of laws would collapse and the subversion of the social order would follow. Hence Alexander VII condemned proposition 28: "The people do not sin, even if without any cause they do not receive a law promulgated by the prince."⁹³ - It is plain of itself that the people neither ought nor can accept human laws which injure natural or positive-divine right, for example, laws which persecute the Church. For it is necessary to obey God rather than men; and therefore against unjust laws of this kind the so-called passive resistance must be opposed, as was already said above in n. 181. But even when other laws are promulgated which to the sounder part of the people seem not suitable to the circumstances of affairs, appeal can be made to the legislator, and meanwhile the obligation of the law is suspended from the presumed consent of the legislator.

b) Laws of the Supreme Pontiff do not even depend on acceptance by the bishops; for the Pope has supremacy not only of honor, but also of jurisdiction in the whole Church. Nevertheless, if at some time a bishop reasonably thinks that in his diocese, on account of singular circumstances existing there, some new pontifical law would cause true harm, he can for a time refrain from publication of that law; then, however, he must as quickly as possible seek an authentic explanation in the Roman Curia. "Nor," as Benedict XIV says,⁹⁴ "have the Roman Pontiffs ever refused to lend an ear to the reasons of inferiors; and as often as they recognized these to be sufficiently valid, they by no means refused to exempt some provinces or dioceses from the law of their general Constitutions, as to that kind of discipline concerning which we now treat." - Since any good bishop having union with the Apostolic See is not to be presumed a disobedient son of the Church, the priests and faithful of the diocese are excused from the observance of some new pontifical law which the bishop has not yet published in his diocese. This indeed can especially have a place in liturgical law; for example, in some places songs are still sung in the vernacular language during Mass or sacramental Benediction, although this is prohibited by common law.

⁹³ Billuart discusses the acceptance of law broadly and well (diss. 3, a. 3). Cf. also St. Alphonsus, Theol. mor. l. 1, n. 138.

⁹⁴ De syn. dioec. l. 9, c. 8, n. 3.

204. c) Finally, no ecclesiastical laws (neither pontifical nor episcopal) need acceptance on the part of the civil government. For the Church is a perfect society, autonomous and altogether independent from civil government. Whence the Vatican Council⁹⁵ strenuously declared: "We condemn and reprobate the opinions of those who say that this communication of the supreme head with pastors and flocks can licitly be impeded, or who render the same subject to secular power, so that they contend that those things which are established by the Apostolic See, or by its authority, for the governance of the Church have no force and value unless they are confirmed by the approval of secular power." Therefore the "royal approval" is required neither for promulgation nor for acceptance of an ecclesiastical law. But sometimes in Concordats entered into with civil governments the Church has conceded to the power of the republic some right of intervening even in ecclesiastical matters, for example, in the election of bishops, in the administration of ecclesiastical goods, etc.

⁹⁵ Sess. 4, c. 3 (Denz. n. 1829). Cf. Pius IX, encyclical Quanta cura of December 8, 1864; prop. 28 of the Syllabus: "It is not lawful for bishops, without the permission of the government, even to promulgate the apostolic letters themselves" (Denz. n. 1728).

162. DEFINITION. Acceptance of law is the formal or virtual consent of the people (at least as to its greater and sounder part) to the observation of a duly promulgated law (I, 138).

163. PRINCIPLES. I. The acceptance of the people is not required for the essence and obligation of law. The reason is that if the acceptance of the people were necessary, the prince could no longer, when the people resisted, sufficiently consult the common good. Add that a power cannot be called legislative in the true name if the people could resist it at will. Hence deservedly was the proposition condemned: "The people does not sin, even if without any cause it does not receive the law promulgated by the prince" (proposition 28 from those condemned by Alexander VII).²

Therefore: 1. In States, as they say, representative and democratic, the people, through its deputies, indeed participates in instituting laws, but ought to obey laws rightly published; otherwise the whole order of society would be overthrown.

2. A doubt having arisen, namely whether the law has been accepted, does not remove the obligation (I, n. 97, 6; III, n. 112). For the law possesses, and the presumption of obedience on the part of subjects also possesses, nor is the principle just stated weakened by this doubt.

3. Acceptance on the part of princes is not required in order that ecclesiastical laws oblige. Therefore the Church rightly rejected the royal placet (Vatican Council, III). It can happen, however, that the Church does not wish to urge the observance of her laws if, on account of the detraction of princes, their observance would become too onerous (cf. n. 201), or if their promulgation has been impeded (cf. Sweens, Theol. fund., n. 276, concerning the Royal Placet).

164. II. Defect of acceptance brings it about per accidens that law sometimes does not oblige. The reason is that laws whose observance is neglected finally pass into desuetude; or because they are revoked by the legislator expressly or tacitly.

Therefore a law DOES NOT OBLIGE (I, 139; H. Ap., II, 11 ff.): 1. If it has not been accepted for ten years. For such a space of time certainly suffices, with the legal consent of the prince standing, for prescribing against a law not yet introduced, as is commonly taught. Indeed, although it has already been accepted, but afterward for a continuous ten years has passed into desuetude, it is probable that it no longer obliges. This is certain among all, if the custom has endured for 40 years (cf. n. 265). See VI, n. 664, where the obligation of physicians to warn the sick concerning confession is treated.

2. If the greater and sounder part of the people has not admitted the law; for although desuetude has not yet been prescribed, and although the first non-acceptors of the law sin by the very fact that they reject it (I, 97), nevertheless the others are not held to the law; for the prince is presumed not to wish to bind these to observing what has not been received by the greater part, and therefore becomes either plainly useless or too onerous to the lesser good part.

3. If the law is difficult of observance, or contrary to prevailing custom, and besides, the circumstances are such that if they had been foreknown by the legislator, he certainly would not have made the law: which is judged from the decision of prudent men. Likewise, if the people had petitioned for revocation, and the prince does not urge observation, he is probably presumed not to wish the law then to oblige; otherwise, if he urged it, or from prudence kept silence (cf. n. 264, 1).

165. IT IS ASKED. Whether it is lawful for Bishops not to accept pontifical laws?

Resp. It is not lawful. For Bishops ought to obey the Roman Pontiff, not otherwise than the other faithful; indeed more than they, because they ought to furnish an example to them. Except, however, the case in which, on account of the circumstances of places, they judge that the law would be less accommodated to their Churches, or even harmful: in which case, they can and must set forth the reason to the Holy See. Meanwhile the Pontiff is deservedly judged not to wish to oblige before he has written back; but afterward all are bound to acquiesce in his definition (Benedict XIV, de Syn., l. 9, c. 8).

122. • Acceptance of law is the submission by which subjects, at least as to the greater and sounder part, accept the law formally or virtually.

Principles. - I. Of itself, law as to the force of obliging in no way depends upon the acceptance of the people; for otherwise, together with the power of the Superior, all the authority of laws would collapse, and therefore the subversion of the whole social order would follow. It is established also from proposition 28 condemned by Alexander VII (see p. xiv).

II. Accidentally, sometimes a law not accepted does not oblige, by reason of the tacit or express consent of the Superior, or by reason of a tolerated privilege or custom. It is established from practice in various cases, and from the common consent of theologians.¹

123. Questions. - Quaer. 1° In what cases does a law not accepted accidentally not oblige?

Resp. 1° If the time which has elapsed from the non-acceptance is sufficient to induce a legitimate contrary custom.

2° If the sounder and greater part does not observe the law, and from the circumstances it is presumed that the prince, since he does not insist on observance nor punish transgressors, does not will to oblige anyone.

3° If the law is contrary to a flourishing custom, very difficult, and moreover the circumstances are of such a kind that, if they had been foreknown by the legislator, he certainly would not have made the law.²

The reason is that in all these cases the consent of the legislator is present, at least tacit consent.

124. • Quaer. 2° Does a law oblige in doubt whether it has been accepted?

Resp. Affirmatively, because, unless the contrary is established, the fact is presumed which had to be done by law (n. 67, 2°). Except if there is present solitary probability that the law has been abolished or never began.³

Quaer. 3° Does a law of the Church which has not been accepted because some civil government prohibits it oblige?

Resp. Affirmatively of itself, because the Church received its power from Christ, not from civil power; and therefore it is altogether independent of it. For to the Church, not to civil power, was it said by Christ: Whatever you shall bind . . . shall be bound, etc.⁴

Quaer. 4° Can Bishops not admit Pontifical laws?

Resp. Negatively. For Bishops, although they are Princes in their own Churches, nevertheless are subject to the Roman Pontiff, the immediate Vicar of Christ on earth, and head and governor of the whole Church. Therefore they must obey him, and thus furnish an example of obedience to their own subjects, by promulgating the pontifical law and procuring its observance in their diocese. Except, however, if grave reasons stand in the way; for then Bishops not only can, but must expose these reasons to the Holy See, and afterwards they will be bound to acquiesce in its definition. - See Benedict XIV.¹

273. Human laws can be formed either by the imperative act of the legislator requiring observance from subjects: these are constituted or legal right, which ordinarily is written; or by the observance of subjects to which the consent of the legislator is added: these are customary right.

1. Custom from the nature of the thing is a legitimate source of right. Namely, it is conformable to reason that manners introduce law: for those things which are spontaneously observed by the members of society and are born from social development are to be held (unless something stands in the way) as accommodated to the character of the subjects and conformable to the common good; whence they cannot fail to be sanctioned by a prudent superior. Hence custom, which is usually defined as "legal right introduced by long-standing manners of the community with some consent of the legislator," was generally admitted in Roman Law; but not so in modern civil law, either for introducing, abrogating, extending, or restricting law, unless exceptionally, if it is expressly indicated in the law, as happens in the matter of contracts and commerce.

2. Written law can be issued in various forms, and by whatever forms of decree, letter, code, or collection; also of response and sentence, although these two are more fitting for interpreting a law already borne than for introducing a new one. Likewise it is formed by a various process for various times among various peoples; today the received process is the following: it is proposed by ministers of the state or by members of the legislative assembly, is publicly discussed in the assembly and accepted by vote, and is sanctioned by the supreme power.

1. Cf. Belgian Constitution, a. 27, 39, 69.

But it befits the nature of constituted law: a) that the superior not bear a law without the counsel of the prudent; b) that it be expressed in clear and brief words in the language of the society to which it is directed; c) that it be proposed in writing: indeed it could be handed down orally, yet by writing better provision is made for the perspicuity and sincerity of the law. Nevertheless all these things are not strictly required that a law obligate.

274. Promulgation has been made in various modes at various times and among various nations. In Roman Law, from the year 538, under the emperor Justinian, it had to be made in individual provinces or metropolitan cities.

Today, in cultivated regions, it is usually made by an act of the king or supreme magistrate of the republic, by which he testifies concerning the law established and the law itself becomes public right by an announcement had in the official newspaper; but it begins to obligate after the time which has been established.

Thus in Belgium, according to the law of February 28, 1845, art. 2, confirmed by the law of April 18, 1898, modified December 28, 1909, art. 4 (conformably to the Belgian Constitution, art. 129), it is done by an authentic testimony made by the king concerning the existence of the law and by public insertion commanded by him in the official newspaper of the State, Le Moniteur; and laws obligate in the whole kingdom on the tenth day after the day of publication, unless otherwise established in the law, or unless accidentally it was impossible for citizens to know it, for example, on account of war, a great inundation, etc., or for subjects who are outside the kingdom: for law openly supposes the possibility of knowing it (art. 1, law of August 2, 1822). In France, from the decree of November 5, 1870, law obligates after one full day has elapsed after the official journal has reached the capital city of each district. In Italy laws obligate on the fifteenth day from the day of publication.

275. Thesis. For the value or obligating force of human law, the approving acceptance of subjects, or acceptance of right, that is, consent to observance of the law borne, is not required per se.

It is proved: 1) The Apostle, Rom. XIII, 2, says without restriction or exception: He who resists power resists the ordinance of God; but he resists power who does not accept the law borne by it.

2. If acceptance were required, this would be either from defect of will in the legislator or from defect of power. Not the first: for if he bears a law in preceptive words and urges it with penalties, it is an open sign that he wills to obligate to it; moreover the common good can require that he break the resistances of subjects. Not the second, because power in its exercise is not restricted at the nod of subjects; otherwise the efficacious direction of society would be impossible; and moreover then it would not be a power of commanding and prescribing in the true sense, but a mere faculty of giving and proposing counsel, by which the common good cannot be sufficiently procured.

3. Whence Alexander VII condemned the proposition (28): "The people do not sin even if without any cause they do not receive a law promulgated by the prince" (cf. Syllabus, prop. 63).

Nevertheless per accidens acceptance is necessary, if the legislator does not will to obligate otherwise, or if that right is reserved to the people in the law (as in Switzerland for certain laws there is a referendum to the people); but then acceptance is not of a law already constituted, but concurs toward constituting it.

276. A fortiori, executive acceptance of fact, or the observance itself of the law, is not required for giving value to a law.

Nevertheless it can be necessary for conserving the force of law, not directly, but indirectly. For if a superior is unable to obtain fulfillment of the law from the greater or saner part of the community, it can be fitting that he not urge observance of the law; for by urging he could be an occasion of ruin to subjects without fruit. In which case the obligation does not fail directly from non-acceptance by the people, but indirectly from the tacit or presumed consent of the legislator, who is judged, if he does not urge the law, not to will the ruin of souls. But when such a law is judged revoked cannot be determined generally, but is left to the judgment of the prudent.

By difference from Roman Law, present-day civil law, because it denies all force to custom, does not admit that after promulgation a law is suspended by recourse to the legislator, nor that it ceases by non-reception or by not being brought into use; whence the consent of the legislator cannot be supposed.

329. Ecclesiastical laws can be formed just as other human laws can: either by an imperative act of the legislator requiring observance from the subjects, or by the observance or custom of subjects, to which the consent of the legislator is added.

In former times many ecclesiastical laws were introduced by custom, several of which have now been consigned to writing; but even today custom is able to introduce law, as we shall explain in q. 3, art. 7, but always with the consent of the legislator (can. 25); these laws are called customary right.

Now, however, laws are ordinarily constituted by an imperative act of the legislator; whence these laws are called constituted right, which ordinarily is written.

It belongs to the nature of constituted law: a) that the superior not make a law without the counsel of prudent persons; whence Pontiffs are accustomed to consult congregations, and bishops have the counsel of the chapter; indeed at least every ten years a diocesan synod is to be celebrated (can. 356, § 1), in which nevertheless the bishop alone is legislator, the others having a merely consultive vote (can. 362); b) that the intention of obligating be expressed in clear and brief words and in the language of the society to which it is directed, such as Latin in the Western Church; c) that it be proposed in writing, by which provision is better made for the perspicuity of the law. This can be done under various forms of decree, letter, code or collection, even response and sentence, although these two are more suited to interpreting a law already enacted than to introducing a new one; indeed under the form of an instruction, which nevertheless is rather a declarative norm and a directive rule to be observed, accessorily completing the law, in which nevertheless certain secondary points can be imposed by prescriptive ordination. Yet no determined form is to be observed by precept in the formation of laws.

330. Ecclesiastical laws take on various forms.

Today there are enumerated:

1. apostolic constitutions, which are issued in the name of the Roman Pontiff or proceed immediately from him, in the more solemn form of a Bull, and are concerned with graver business;

2. apostolic letters, which are issued under the form of a Bull or under the less solemn form of a Brief, for less grave business, especially of the order of governance or administration; letters are called encyclicals when they are directed to the bishops of the whole world, or to a notable part of them, e.g., at least of one or several nations;

3. decrees or general decrees, which the Roman Pontiff composes either in an ecumenical council or through the Roman congregations;

4. decretal letters or responses which take occasion from another's relation (to a consultation or petition), and rescripts by which another's petition is satisfied (can. 36 sq.);

5. consistorial allocutions, which are had by living voice in consistory: for the external forum they are authentic if they are reduced to writing and consigned by officials;

6. the Code of Law, or collection of the principal disciplinary laws of the Church, whose prescriptions are distinguished not by articles as in civil law, but by canons;

7. decrees of particular councils;

8. statutes, by which rather are designated laws enacted by an inferior power, e.g., episcopal or diocesan statutes, or ordinances of the internal governance of moral persons, e.g., capitular or religious statutes.

331. The mode of promulgating laws, just as of forming them, was variously used by the Pontiffs.

a) During the first twelve centuries, they promulgated their constitutions by sending them into the provinces, through clerics of most approved faith, either to individual bishops, or to metropolitans or patriarchs, who took care that they be transmitted to the bishops;

b) at the beginning of the thirteenth century, they began to promulgate authentic collections of canon law by sending them with a Bull to the more celebrated academies: thus Innocent III, in the year 1210, promulgated the collection of his decretals by letters directed to the University of Bologna;

c) in the course of the same century, they ordered certain Bulls to be promulgated by affixing them in the place of their residence, especially at Rome (e.g., at the doors of the Lateran Church; the basilica of St. Peter in the Vatican, and the Apostolic Chancery, or in the square of the Campo de' Fiori), with this clause, that such promulgation would suffice for the law to obtain its whole force: thus Martin IV in the year 1281 issued a Bull against Michael Palaeologus, and Boniface VIII used the same mode against Philip the Fair.

Such promulgation made in a central place such as Rome suffices for the law to have the force of obligating: for it is the chief city of the whole world, whose communication with the whole world is immense, to which almost all nations come together, in which not only kings have their legates but almost all prelates have their procurators, who can render them more certain concerning new laws; whence a new law promulgated there is very easily divulged.

This mode of promulgation thereafter was generally retained by the Supreme Pontiffs, although it was never the only one: for certain things were accustomed to be promulgated by transmission to nuncios, metropolitans, bishops, etc., such as encyclicals and decrees issued by congregations; or even by promulgation in individual dioceses or even parishes, as was done for the decree of Trent concerning clandestine marriages and was usually done for penal law, invalidating law, law removing jurisdiction, or for constitutions which regard a part of the Church.

d) But now Pius X decreed (constitution of September 29, 1908) that an official commentary be issued (Acta Apostolicae Sedis), in which he willed pontifical constitutions, laws, decrees, and other decisions of the Roman Pontiff and of the Sacred Congregations and Offices to be inserted and published to the public, and in this way promulgated, whenever there is need of promulgation and no other provision has been made by the Holy See. The Code ratified this, can. 9: "Laws enacted by the Apostolic See are promulgated by publication (that is, not by insertion alone, but by publication or some making public) in the official commentary of the Acta Apostolicae Sedis, unless in particular cases another mode of promulgating has been prescribed."

332. When a promulgated law begins to obligate. - Once the promulgation of a general law has been made at Rome, the law obligates at the time designated by it; but if none is designated (as formerly often took place), some said that it obligates at once, that is, on the following day; others, better, gradually after a time sufficient for divulgation, more or less according to the distance of places; others finally, only after two months, and indeed everywhere, even in the place of promulgation: for the time in which the law can arrive in a human way at the ears of subjects is to be assessed by the judgment of the prudent, which formerly in Roman law was assessed at two months; therefore one must stand by it where the time is not determined. But this assessment is not demonstrated to be applicable to the laws of the Church; then the Roman Curia declared nearby persons guilty of transgressing the law before two months had elapsed; and on the other hand there are several regions to which, after two months, knowledge of the law could not always come; finally, that assessment does not seem capable of being made for all times, even those in which the means of divulgation become much easier. Whence the second opinion seems true, the last was held probable by many, and the first is altogether improbable.

Now, however, the time has already been designated universally, and canon 9 of the Code has force: "Laws enacted by the Apostolic See are promulgated... and exercise their force only after three months have been completed ('as they are computed in the calendar, with the first day counted,' can. 34, § 3) from the day which is appended to the issue of the Acta, unless from the nature of the matter they bind immediately, or in the law itself a shorter or longer vacatio has been specially and expressly established."

From the nature of the matter, laws immediately bind which are concerned with the matter of faith and morals, condemn books and place them in the Index, or declare those things which suffer no delay and must be applied immediately.

Acceptance of law is the submission by which subjects, at least as regards the greater and sounder part, accept the law formally or virtually.

I say, 1st. Of itself, a law, as regards its force of obliging, in no way depends on the acceptance of the people; otherwise, together with the power of the superior, all authority of laws would collapse, and thus the subversion of the whole social order would follow. This is also clear from proposition 28, condemned by Alexander VII, which stands thus: "The people do not sin, even if without any cause they do not receive a law promulgated by the Prince."

I say, 2nd. Accidentally, sometimes a law not accepted does not oblige by reason of the tacit or express consent of the superior, or by reason of a privilege or tolerated custom. This is clear from practice in various cases and from the common consent of theologians. - Cf. St. Alphonsus, n. 138.

Question 1. Does a law oblige if the greater and sounder part of the people has not accepted it?

Response. If the greater and sounder part of the people, on account of a reasonable cause, does not accept a law for a time, with this end, that it may obtain from the Prince its dispensation or abrogation, then from a benign interpretation the obligation of the law can be held as suspended, until the matter is settled. If on the contrary the law is rejected absolutely and forever, without any recourse to the Prince, by the greater and sounder part of the people, those not accepting it sin, until the law has been abrogated by legitimate desuetude; for it does not depend on their will that the law oblige or not oblige, though excepting the case in which the law is not accepted because it suffers from some intrinsic defect. Meanwhile the lesser part, which is prepared to observe the law as soon as it will be accepted by the greater part, more probably does not sin, speaking of itself, while it omits its observance; because the Prince is not judged to wish that what has not been accepted by the greater number be observed by the fewer with their great inconvenience. Cf. St. Alphonsus, nn. 137 and 139. - Suarez, lib. 3, cap. 19, n. 13. - Salmant. cap. 1, n. 107.

Question 2. Does a law oblige in doubt whether it has been accepted?

Response. Affirmatively, because it ought to be presumed accepted, unless the contrary is clear. For a fact is presumed which by law was to be done, according to the rule of law related above, n. 66. - Cf. St. Alphonsus, n. 97.

Question 3. Can Bishops not admit pontifical laws?

Response. ... It must be denied. For Bishops, although they are princes in their own churches, are nevertheless subject to the Roman Pontiff, the immediate Vicar of Christ on earth and head and governor of the whole Church. Therefore they must obey him, and thus furnish an example of obedience to their own subjects, by promulgating the pontifical law and procuring its observance in their diocese. Yet except if grave reasons stand in the way: for then Bishops not only can but ought to set forth these reasons to the Holy See, and then they will be bound to acquiesce in its definition. See Benedict XIV, de Synod. dioeces. lib. 9, c. 8.

I say: No law, whether civil or ecclesiastical, depends upon the acceptance of the people.

It is proved 1° from Scripture. The Apostle says, Hebr., XIII, 17: Obey your prelates, and be subject to them. Rom., XIII, 1: Let every soul be subject to higher powers. And 2: He that resisteth the power, resisteth the ordinance of God. Nowhere is this or a similar clause or exception added: « If you shall wish to obey, » nor would it be understood except absurdly.

It is proved 2°. If law, whether civil or ecclesiastical, did not oblige except dependently upon the acceptance of the people, this would proceed either from defect of will in the legislator, who would not will his law to oblige except under this condition, or from defect of power. But neither can be said. Therefore. — The major contains the foundations of the adverse opinion. — Proof of the minor. Not from defect of will; for by the very fact that the legislator bears his law in preceptive words and urges its observance, it is an open sign that he wills it to oblige independently of the consent of subjects. Not from defect of power, as if legislators held it from the people under this restriction: « If the people consent. » Above all, ecclesiastical power is in the supreme Pontiff immediately from Christ; likewise in the Bishops, or at least through the mediation of the supreme Pontiff. Civil power is in many by right of war, and not from the people. As to others who hold it originatively from the people: by the very fact that the community conferred it upon the prince without express restriction, as happens commonly, the prince alone is superior, and he alone holds the dominion and use of the conferred power independently of the people. Therefore, whether the people will or not, the prince has absolutely legislative power, which all are bound to obey.

It is confirmed. Legislators can compel refractory subjects by inflicted penalties to observe their laws.

Therefore also to accept them. Therefore the power they have of enacting laws and obliging does not depend upon the acceptance of subjects.

You will say: A law accepted and observed is abrogated through the contrary custom of the people and ceases to oblige. Therefore, a pari and a fortiori, a law refused by the people from the beginning does not begin to oblige.

I answer. I distinguish the antecedent. A law is abrogated by contrary custom through the consent of the legislator, tacit or declared in law, and ceases to oblige; I concede the antecedent; otherwise, I deny the antecedent and the consequent.

You will insist: In Gaul, Spain and Belgium pontifical laws have no force unless they have been accepted in the supreme courts and permitted to be promulgated, or, as they commonly say, unless they have been fortified by the royal placet. Therefore.

I answer. These are privileges, or, as they call them, liberties from the concession or consent of the Sovereign Pontiffs.

[You will ask what is to be understood by the liberties and immunities of the Gallican Church, and what must be thought concerning them.

I answer. Gallican writers have referred these liberties generally to two heads, namely to temporal things and to spiritual things.

As to the first head, more studious than is just of royal power, they rejected, as contrary to the dignity and independence of the kingdom, certain temporal rights which, from the customs and political constitutions of several nations, had been attributed to the holy See. Moreover, on account of temporality, they assigned to the secular prince the nominations to episcopal sees and the collation of benefices, with enjoyment of vacant revenues which they pronounced to be regalia. To these, resting upon the same foundation, they added appeals from abuse, reserving them to the secular forum.

As to spiritual things, the Gallican doctrine is contained in those words which Bossuet wrote in his Defense of the Declaration of the Gallican clergy, lib. XI, cap. 14: « Let the sum of our liberty be so to preserve the newer laws established by pious or necessary institution as to have regard for the older, and by them to sustain the discipline that is slipping away; certainly let us strive with every hope to preserve the common right and in it the venerable remains of ancient right, and to repudiate arbitrary right and extraordinary mandates, and in these let us place the greatest part of our reverence toward the Catholic Church: since we understand that the more studious each one is of the ancient discipline, the more he ought to hold dear the majesty of the Catholic Church and of the Apostolic See. » The foundation of this doctrine in common right, independently of the assent of pontifical authority, the Gallicans laid down, as Gibert testifies, who says, Corp. juris can., proleg., part. I, lib. XV, append. sect. 2: « National Churches are not subject to the Roman laws which they have not received, and they do not need the consent of the Apostolic See in order not to receive them; but it suffices that these seem repugnant to them to the customs of their nations. » In favor of this schismatical proposition they invoke ecumenical councils, and especially that of Ephesus, from which was commanded « that to each province its own rights which it has had from the beginning be preserved pure and inviolate. » From this they inferred that the rights and customs of particular Churches have the same force as the laws of the universal Church, as sanctioned by general councils; and since they held a general council to be above the Pope, they further concluded that these customs could not even be changed by the Roman Pontiff unless the consent of the particular Churches intervened.

Those liberties were proclaimed by several bishops and deputies of the provinces, Louis XIV commanding and his ministers pressing, in the assembly of the Gallican clergy of the year 1682. We shall refer the whole text of this celebrated and ill-fated Declaration below, when we treat of the primacy of the Roman Pontiff. Let it suffice here to express the sense of the four articles: 1° The Roman Pontiffs have no power over kings and princes and in temporal things, neither direct nor indirect. 2° A general council is above the Pope. 3° Apostolic power must be moderated by the canons consecrated by the reverence of the whole world, and against it avail the rules, customs and institutions received by the kingdom and Church of Gaul. 4° In questions of faith the supreme Pontiff has only the principal parts, and his judgment is not irreformable unless the consent of the Church intervene. — Hence, it seems, this assembly vindicated illegitimate immunities for the Gallican Church, not only in temporal matters, but even in things pertaining to faith and morals.

Those liberties and immunities are defined generally by some canonists: « The right constantly to follow the received canons of the universal Church and the customs of ancient Gaul, whatever be decreed anew to the contrary. » More briefly and better could they be defined: « The right which the Gauls claimed to themselves of retaining, out of the laws of the Church, only those which pleased them. »

I say: The fundamental doctrine of the liberties and immunities of the Gallican Church is altogether to be rejected.

It is proved. That doctrine is to be rejected which is false, absurd and dangerous. But such is the said doctrine. Therefore. The minor is proved.

1° This doctrine is false. 1° The Gallican Declaration was reproved by the holy See. Innocent XI denied bulls of canonical institution to ecclesiastics who, after subscribing the celebrated Declaration in the assembly of the clergy of the year 1682, were coopted by Louis XIV as bishops. Alexander VIII, his successor, by the constitution Inter multiplices, given January 30, 1691, declared all the acts of this assembly null, invalid, and destitute of all force. Innocent XII likewise did not grant bulls of institution to new bishops unless they had first abjured the Declaration, and the king had abrogated the edict by which he had prescribed its publication and observance. But all these things prove that the holy See held the principles of the Declaration to be false. Therefore.

2° By his constitution Auctorem fidei, given August 28, 1794, Pius VI condemned very many propositions proclaimed in the Synod of Pistoia, among which the following are noted: the 6th « The doctrine of the synod whereby it professes itself persuaded that « the bishop has received from Christ » all the rights necessary for the good governance of his « church; » just as if superior ordinances looking whether to faith and morals, or to general discipline, were not necessary for the good governance of each diocese, the right of which rests with the supreme Pontiffs and general councils for the universal Church; schismatical, at least erroneous. » The 5th « Likewise, that it says it is persuaded to itself that « the rights of the bishop received from Jesus Christ for governing » the Church can neither be altered nor impeded, and, where » it happens that the exercise of these rights has been interrupted » for any cause whatsoever, the bishop can and ought always to return » to his original rights, whenever the greater good » of his church requires it; » in that it implies that the exercise of episcopal rights can be impeded or coerced by no superior power whenever the bishop judges with his own judgment that this is less expedient for the greater good of his church; inducing into schism and subversion of hierarchical governance, erroneous. » But these propositions accord with the doctrine of the Gallican Declaration. Therefore. Therefore we must stand by the words of Clement XIV writing to his nuncio at the king of Gauls, July 26, 1766: « Although such liberties are admitted in the Gauls, far from having been approved by the holy See and by the universal Church, they are on the contrary reproved by these. »

2° This doctrine is absurd. For it is absurd to suppose that Christ, when he constituted his Church and committed it whole to Peter and his successors as supreme pastors and rectors to be governed, willed or permitted that some particular Church should not be subject to this governance in all things. But the Gallican doctrine supposes this. Therefore.

3° This doctrine is most dangerous. For Pius VI condemned it as « inducing into schism and subversion of the hierarchy of governance. » Indeed from this doctrine flows the autonomy or independence of each particular Church, since the individual ones could decline even in matters of greatest moment the ordinances of supreme authority, and constitute for themselves their own discipline. They could likewise everywhere oppose local doctrines to doctrinal sentiments of the holy See, or at least, according to the fourth article of the Gallican Declaration, render them of no force, by not consenting to those definitions and holding themselves negatively toward them. Thus are shaken the legislative power and the magisterium of the Pope, to whom is divinely committed the office of ruling and teaching the universal Church. Thence also it follows, as long experience has proved, that what is detracted from pontifical authority is quasi-necessarily transferred to secular power, whence the divine constitution of the Church of Christ is gravely injured; so that Fenelon could say excellently of immunities of this kind that, if they are liberties toward the Pope, they are servitudes toward the king. But the doctrine from which such consequences follow is most dangerous. Therefore.

You will say: It can happen that pontifical decrees are not congruent with the genius and morals of some nation. But these decrees are enacted not for destruction, but for edification. Therefore that nation is not bound to observe them.

I answer. The major and minor being conceded, I deny the consequent. For it is supposed that that nation, in the case, can reject or neglect the apostolic mandates with full right. But this is false; for laws of this kind obtain obligatory force toward all once they have been promulgated. If therefore, beyond the intention and prevision of the legislator, they cannot be put into execution without great disturbance of the public tranquility, it belongs to the bishops, upon whom rests the office of vigilance for the good of souls, to open to the supreme Pontiff the inconveniences which they dread; who, according to his supreme wisdom, will determine what is to be done, and what shall have been determined will remain. Whence

I say: Ecclesiastical right today in Gaul is determined by common right and by the convention entered into under the name of Concordat between the civil government and the holy See.

Proof of the 1st part. Besides the Gallican liberties and immunities, which the holy See has constantly reproved, legitimate customs could formerly creep into the churches of Gaul, and certain privileges were granted to them by the supreme Pontiffs: from which there coalesced a certain proper particular right, not indeed of the Gallican Church, which has never been held by the holy See as a corporate body having canonical existence, but of the diverse provinces and dioceses. But this ancient order was entirely destroyed and abolished by Pius VII through the bull Qui Christi Domini, by which, all the dioceses of Gaul having been suppressed, he erected new ones. For it is read in that constitution: « We suppress, annul and extinguish forever the title, denomination and whole present state of the hereunder-written archiepiscopal and episcopal churches, together with their respective chapters, rights, privileges and prerogatives of whatsoever kind... So that all the above-said archbishoprics and bishoprics... must be held hereafter as no longer existing in their first state, because either wholly extinguished, or to be erected into a new form... Notwithstanding customs even immemorial. » From which it evidently follows that the newly created churches were instituted not according to the pristine particular right, which was altogether abolished, but according to common right. Therefore they are subjected to common right in all those things in which derogation was not made by the supreme authority.

It is confirmed by these words of Cardinal Orioli, prefect of the Congregation of bishops and regulars, acting as the part of the cardinal ponens: « Although [in the bull Qui Christi Domini] nothing is expressly stated regarding the abrogation of former customs, nevertheless this abrogation seems to be admitted as something necessarily consequent. »

Proof of the 2nd part. In the year 1801, between Pius VII and Napoleon Bonaparte, who presided over the government of the Gallican republic under the title of first consul, there was entered the Concordat by which derogation was made from common right in many things. But it was certainly lawful for the supreme Pontiff, by reason of his supreme power and of the present necessities, to consent to these derogations. Therefore.

If perhaps legitimate customs should have been introduced or should be to be introduced according to the canonical rules on customary right, they pertain or will pertain to the particular right of the churches.]

A certain ecclesiastical law was duly promulgated at Rome, and knowledge of it was spread through the Catholic world by periodicals. The bishops of a certain region, however, did not promulgate it in their dioceses, nor did they urge its execution; it was not commonly observed, and indeed some of its prescriptions were acted against in good or bad faith. Titius, a young man of excellent character who cultivates theological studies, conceives anxieties and difficulties from this because the doctrine handed down by theologians concerning laws does not seem to agree with practice. Hence he has recourse to his confessor and asks for the solution of his difficulties. Therefore it is asked:

1. Is promulgation required in order that a new law may bind subjects, and what kind?

2. Is acceptance by the people required in order that a law may bind?

3. Does a new law abrogate contrary customs?

4. What is to be said concerning the case?

1. For the answer to this question, see p. 74.

2. Must a law be accepted by the people in order to be binding?

The question concerns ecclesiastical law and the answer must be in the negative, for the obligation of a law comes from the will of the lawgiver, not from the subjects. In spite of this, however, the fact that a law is not put into execution and is not observed may incidentally take away or suspend its binding force. This may happen in various ways. The bishops, whose duty it is to see to the observance of ecclesiastical laws, may know of serious difficulties which stand in the way of the observance of some particular law, and they may have reported in this sense to the Holy See. If in such cases the Holy See insists on the observance of the law, the bishops should enforce it; but if the Holy See says nothing, the law may be considered as suspended for the present. Or it may be that on account of the difficulties in the way the observance of the law was not insisted on; in such a case the law will not bind practically, with the tacit consent of the legislator, or, after a certain time, on account of the prevalence of a contrary custom.

3. Does a new law abolish contrary customs?

A new ecclesiastical law abolishes general customs to the contrary, but it does not abolish particular customs, unless the law contains a clause specially revoking them.¹

1 C. 1, de Constit., in 6; St. Alphonsus, lib. i, n. 109.

4. The case. Titius, a theological student, is distressed because he thinks that practice does not agree with the theory put down in the books about the binding force of a law. There a law is said to bind independently of its being received or not by the people. However, he notices that a certain law was duly promulgated in Rome, and it became known by being published in the papers. And yet the bishops in a certain country did not publish it in their dioceses, nor urge compliance with it, nor was it commonly observed; on the contrary some of its provisions were infringed. So Titius goes to his confessor and asks him for an explanation. The confessor will doubtless tell Titius that either the law in question was never meant for the dioceses which he has in view, or that the bishops have referred the matter to Rome, or that the difficulties in the way of observance are so great that the bishops think it best to say nothing about the law for the present. In any case Titius need not distress himself about the matter, which chiefly concerns the bishops; let him be ready to observe the law if and when it is enforced, and he may in the meantime do as others do, for we are here considering a merely positive law and its binding force.