The power of making laws

No body of men could live together in peace without being subject to a supreme authority whose function it is to look after the common weal by defending the rights of all, repressing and punishing crime, and taking measures in the common interest which are beyond the power of private enterprise. God, from whom all power is derived, has willed that there should be a separate supreme spiritual authority to look after the spiritual welfare of mankind, and another to look after its temporal welfare. As Leo XIII teaches, in his Constitution Immortale Dei, November 1, 1885: ‘‘ The Almighty, therefore, has appointed the charge of the human race between two powers, the ecclesiastical and the civil, the one being set over divine, and the other over human things. Each in its kind is supreme, each has fixed limits within which it is contained, limits which are defined by the nature and special object of the province of each, so that there is, we may say, an orbit traced out within which the action of each is brought into play by its own native right. ... One of the two has for its proximate and chief object the well-being of this mortal life; the other the everlasting joys of heaven. Whatever, therefore, in things human is of a sacred character, whatever belongs either of its own nature or by reason of the end to which it is referred, to the salvation of souls, or to the worship of God, is subject to the power and judgement of the Church. Whatever is to be ranged under the civil and political order is rightly subject to the civil authority, Jesus Christ has himself given command that what is Caesar’s is to be rendered to Caesar, and that whatever belongs to God is to be rendered to God.”

The spiritual and the civil power use their authority to make laws, and in this chapter we propose briefly to indicate those who have legislative authority in the Catholic Church. z. The power of making laws resides in the supreme authority in the Church, and in any person or body of men to whom the power has been communicated.

(a) The Pope, by the primacy of jurisdiction which he receives from God, is the supreme lawgiver in the Church. 5° He exercises this function either alone or in a general council. Sometimes he acts in his own name, sometimes he uses one of the Roman Congregations for his purpose. 'The Congregation of Sacred Rites (S.R.C.) has received from the Pope authority to make laws for the whole Church in liturgical matters which have been entrusted to its supervision.

The general decrees, then, of the S.R.C. bind the whole Latin Church by their own authority. The same must be said of special decrees which are comprehensive—i.e., which merely interpret the meaning and application of a pre-existing law. Decrees made in answer to special questions, if they are not promulgated authentically, and especially if they are extensive—i.e., if they contain a new provision of law—bind the parties concerned, but probably impose no obligation on others.

(b) The Bishops, assembled in national or provincial councils, or separately in their respective dioceses, make laws for their own subjects.” A Bishop’s legislative authority is usually exercised in his diocesan synod; other ordinances are looked upon rather as precepts than laws, unless the Bishop, after consulting his chapter, specially expresses his mind to the contrary. By modern ecclesiastical law, an Archbishop has no legislative authority over his suffragans or their dioceses. He can hear appeals from their subjects, and in special cases he supplies for their neglect of duty (Can. 274).

Bishops, inasmuch as they are subject to the common law of the Church and the decrees of the Holy See, can make no law which is contrary to these.

(c) Religious Orders have power to make laws for their own members. The power is exercised according to the special Constitutions and Rules approved by the Holy See for each Order. Orders of women, however, have no legislative authority, though the superioresses, by virtue of what is called dominative power, can of course give binding precepts to their subjects.

(d) Parish priests, since they have no jurisdiction in the external forum, are incapable of making laws.

It belongs to canon law to treat more fully this and similar matters connected with laws; nor is it any part of the duty of a moral theologian to inquire what is the legislative authority in civil matters.¹

¹ Pius IX, May 23, 1846; Can. 253.

Wouters, Manual of Moral Theology

Ludovicus Wouters, C.SS.R. — 1 passage

Vol. I, Bk. I, Tr. II, Diss. II, Pt. I, Sect. III, Ch. I, Article III. On the Power of Making Laws

n. ¶1.

The power of making laws belongs to the power of jurisdiction, as it is called. Hence, for the sake of completeness and clarity, we shall speak first of the power of jurisdiction in general, then of the power of jurisdiction insofar as it carries legislative power with it.

Bucceroni, Cases of Conscience

Gennaro Bucceroni, S.J. — 26 passages

16. On the Author and the Subject of Law

A certain archbishop, when various means had been tried and other penalties imposed, could not root out an abuse which had crept too much into his diocese, by which some, for various reasons, wishing to contract marriage secretly, under pretext of infirmity or some similar thing, called the parish priest to themselves, and, with him present and two witnesses, suddenly contracted marriages before the parish priest could flee. From these marriages many scandals and dissensions arose. Therefore, by law and public edict, he not only prohibited this, but removed from parish priests, and from other priests with their license, the faculty of assisting at marriages of this sort when denunciations had not first been made; and he suspended them all as to this act of assisting and declared that marriages, if any thereafter were made in this way, would be invalid, on account of defect of the power of assisting on the part of the parish priest, or of another priest, which had now been taken away by this law.

Q. 1. Can bishops make laws? 2. Could the archbishop validly do this?

R. To the first, cf. I. M. 181. To the second, negatively. The first reason is because, since "the Council of Trent requires for the validity of marriage only the presence of the parish priest and of two witnesses, the archbishop could not invalidate marriages made before the parish priest and witnesses, such as are those of which there is question, since he truly still remains the true parish priest, retaining the title of his parish, especially since that assistance is not an act of jurisdiction in the parish priest; wherefore, even if, on account of excommunication or some other censure, he were suspended from all jurisdiction, he would still validly assist at marriage, as Sanchez teaches with the common opinion, l. 3, d. 21, n. 4." Lugo, Resp. Mor., l. 1, d. 45, n. 5. The second reason is because, "whatever may be the case concerning other matters, nevertheless in this matter the bishop cannot by his law introduce an impediment invalidating marriage beyond those which have been introduced by common law; for this, as being a most grave affair, and one from which most grave inconveniences follow, the Supreme Pontiff has deservedly reserved to himself alone, as the doctors commonly admit, whom Thomas Sanchez, l. 7, De Matr., d. 1, n. 9, Basilius Pontius, and all others follow." Lugo l. c., n. 6. It is confirmed from the response of the Sacred Congregation of the Council in the same Lugo, l. c., n. 4.

Cunegunda, abbess of nuns, commands her professed nuns and novices certain exterior exercises of mortification and penance, and decrees that these are always to be observed in the future. Exterior mortification, she says, is very useful for spiritual perfection; and it was omitted in the Constitutions approved by the Holy See, and so was left to the power and discretion of the Abbess. Moreover, she commands all equally that each one exhibit to her in writing all her virtues and all her sins, every month. The rendering of conscience, she says, was always in use among the Saints and the ancient Monks; and it is a salutary and best means of holiness and perfection, indeed to be counseled to all.

Q. 1. Can the Abbess or Superior of nuns make laws? 2. What must be thought concerning Cunegunda?

R. To the first, cf. I. M. 182. To the second: the abbess or superior of nuns can indeed, in particular cases and to particular or individual professed nuns, impose precepts in virtue of holy obedience, by force of the vow of obedience, obliging gravely or lightly, with respect to those things which pertain to regular discipline, according to the Rule and Constitutions approved by the Holy See. For otherwise nuns would profess obedience by vow in vain. To professed nuns: for precepts of this sort cannot be imposed on novices, since they have not yet emitted the vow of obedience. But since she does not have spiritual and ecclesiastical jurisdiction, she does not have the power of making laws; and so Cunegunda cannot impose on the whole Community, and in perpetuity, those exterior exercises of mortification and penance. And since they are not found prescribed in the Constitutions approved by the Holy See, they would be imposed not according to the Constitutions, but beyond the Constitutions; whence also under this head Cunegunda lacks the aforesaid faculty. For she herself cannot establish a new Constitution beyond the approved ones. - But, although the superior of nuns, as being a woman, lacks ecclesiastical jurisdiction, nevertheless she has economic power, which in itself does not depend on the Keys of the Church or on sacred Orders, but is annexed by natural law itself to any superiority, and is found in any community or society which is ruled by some superior. Hence, by force of this power, a superior can also command something to novices, and correct them, or restrain them by some moderate penalty; but this power, as is clear, is very limited and restricted. Therefore the first precept of Cunegunda is of no force.

The same must be said of the other precept of Cunegunda; which "is no less imprudent than iniquitous. Iniquitous, because she wishes to bind subjects to defame themselves concerning their offenses, however hidden, and indeed before a woman, to whom neither God nor any mortal ever wished to entrust the power of discussing the hidden places of consciences. But it ought to be judged imprudent from the fact that, for the simpler ones, it can easily become a stone of offense, and give occasion to innumerable sacrileges, while they persuade themselves that they are held to put all their offenses, however hidden, on paper, which nevertheless, shame prevailing, they will not do; nor even will they expose more to the confessor than they have noted down in writing. Indeed such superiors, by their damnable curiosity, will expose themselves to dangers of temptations while they attempt to penetrate the hidden things of consciences, which God willed to reserve to himself alone and to his vicars, namely priests." Elbel 284. - Elbel 281-284; G. 97, 98.

This is confirmed from the general Decree of the Sacred Congregation of Bishops and Regulars, 17 December 1890, in which rendering of account of conscience of this sort is prohibited, both for monasteries of nuns, even of solemn vows, and for Institutes of simple vows of either sex, only those Institutes of men excepted which are altogether ecclesiastical in nature and governance. And in the same Decree it is declared to be an abuse that "sometimes in their Constitutions manifestation of conscience had been permitted, that the pupils might more easily learn from experienced superiors, in doubts, the arduous way of perfection, and, contrary to this, by some of these an intimate scrutiny of conscience, which is reserved uniquely to the sacrament of penance, was introduced."

n. 3.

Amalia has sons of five, seven, and nine years, to all of whom she is accustomed to give meat on Friday, because, she says, they are not bound by the law of fasting; and because, since the meat was left over from Thursday, it could not conveniently be preserved until Sunday.

Exuperius, very early in the morning, departs from the place of his domicile, where a special and obligatory feast of the Patron of the place is celebrated; and he comes to a nearby place, where there is also celebrated a special and obligatory feast of the Patron of the place. In neither place does Exuperius hear Mass that day. Having returned to his homeland after some days, he finds a special fast observed there. But, since before he began the journey he had already in the morning and at midday fortified his stomach with a solid breakfast and an abundant dinner, and with meats, in the evening in his homeland he is refreshed with the customary whole supper and with meats.

Q. 1. What is the subject of law? 2. What concerning Amalia and Exuperius?

R. To the first, cf. I. M. 192 seqq. To the second: Amalia could give meat to the five-year-old son, because he is not yet habitually master of reason. But she could not give meat to the seven-year-old son, the seventh year already completed, and to the nine-year-old son; because, although these are not yet held by the law of fasting, nevertheless they are held by the law of abstinence. For they are held to observe those ecclesiastical laws whose observance is proportioned to their powers. Nor indeed, speaking in itself, is it an excusing reason that the meats are left over from Thursday and could not be preserved until Sunday.

Exuperius is exempted from grave sin because he did not hear Mass; because absent from his homeland, he could not be held by the law of his homeland, nor was he bound by the law of the place in which he was staying, because in that place he was a traveler. But having returned to his homeland, although he was excused from the law of fasting on that day on which he had returned to it, because fasting was no longer possible after several meals had been taken, he was nevertheless still held, during the remaining part of the day, to observe abstinence from meat. - G. 79-87; Elbel 367-472.

Paphnutius, a monk dwelling in Rome, on the vigil of the feast of the Purification, on which, by vow, one fasts in the City, does not fast, because, he says, Regulars by force of the privilege of exemption are not held to fasts prescribed by the authority of the Ordinary of the place.

Q. What as to the case?

R. La-Croix, l. 3, p. 2, n. 1274, speaking of religious, says: "Religious are held to ecclesiastical fasts of common law, as is clear in itself; but they are not held to those which are introduced by special custom or vow of the townspeople among whom they reside, because they are not judged part of the profane community; thus Diana, who nevertheless had said that they are obliged by a general custom received in some city. Nor are exempt religious held to those things which are introduced by Ordinaries of places, although by new law they are held to observe diocesan feasts and cessation from divine offices in time of interdict; thus Sanchez, Bonacina, Castro Palao, and others commonly with Diana."

Nevertheless Paphnutius is bound at Rome to the aforesaid fast, both because at Rome there is already such a custom that religious also observe that fast, and because otherwise wonder and scandal could easily exist for the people, especially if other monks also, led by the same reason, should themselves not observe the fast.

"If in some community of Regulars," says Benedict XIV, De Syn., l. 13, c. 4, n. 7, "an ancient custom of observing fasts which the bishop, whether in synod or outside synod, appoints had prevailed, no one doubts that the same community can be compelled thereafter to observe them: for then the obligation of fasting does not arise from the jurisdiction of the bishop, but from the custom itself, which has force for inducing the obligation of law.... similarly, not by the precept of the bishop, but by natural law, Regulars are compelled to fast on those days which the bishop has ordered to be days of hunger, if by not fasting they give scandal to others." And after he had affirmed that the fast on the vigil of St. Apollinaris, prescribed in the diocesan Synod in the year 1627, is observed in the whole diocese of Ravenna both by seculars and by regulars, he adds: "Clement XI, so that every year there might be celebrated the memory of liberation from the danger of the earthquake by which the Roman City was afflicted, established that a fast was to be observed yearly on the day before the feast day of the Purification of the Blessed Virgin Mary; and although this fast was commanded by the said Pontiff as bishop of the City, it is observed up to the present day by seculars and by regulars."

n. 6.

Zephirina, her husband having died, remained in her parish. Civilly married to Lucretius, who lived in another parish, she was led into his house. After a week they contract marriage before the parish priest of the former parish of Zephirina. Is it valid?

n. 6.

R. A woman has the domicile of her husband, and having become a widow she preserves it until she acquires another. C. I. 18; C. G. 108. But when other marriages intervene, the domicile of the woman is changed. L. 22, Ad Municip. Therefore Zephirina, although only civilly married, having been led into the house of the man living in another parish, first lost her domicile and acquired a new one. Therefore even if she had contracted marriage not after a week, but on the same day, before the parish priest of the former domicile, the marriage would have been null. - I. M. 199.

A girl, bereft of parents, left the domicile of the family, not with the mind of not returning, but so that she might be a servant for some time. Meanwhile she completed majority. - Soon, intending to enter marriage, she goes to the parish of the domicile of the parents, or of the family. - The parish priest says: Now I have no jurisdiction, and he requires delegation from the parish priest of the preceding quasi-domicile. - Had the aforesaid parish priest lost all jurisdiction?

R. Negatively. For the parish priest did not lose jurisdiction in the case, if that girl did not lose her first domicile. But in fact she did not lose the domicile. For first, children of the family follow the domicile of the parent under whose paternal power they are. L. 3, C. de Municip. But domicile is not lost without intention and fact, just as it is not acquired without intention and fact. Therefore domicile is not lost by the intention only of departing, as, for example, if someone resolves to depart from such a place and then does not depart. Nor likewise is it lost by simple departure, if someone, for example, goes off elsewhere for some time and then returns to the place of his own domicile. Therefore, in order that domicile be lost, it is required that he depart with the intention of not returning, or as one not going to return. But the aforesaid girl departed not with the mind of not returning, but only so that she might be absent for some time, and then in fact she returned. Therefore she did not lose the domicile.

Nor indeed should it be said that in the case the domicile was lost by the very acquisition of a new quasi-domicile through service in another parish. For first, from the case this acquisition of quasi-domicile is not established. For for it there is required intention and fact: the intention of remaining somewhere for at least the greater part of a year, and the fact, namely that one has truly come there. Concerning intention, nothing is established in the case. Rather the contrary is established, because she seems to have come wholly by her own will, as if precariously, and to have come only for the sake of finding service, and, this not having been found, intending to depart. Whence it is that although she remained in that place, contrary to her opinion, both for the greater part of a year and even for an entire year, as appears from the difficulty made by the parish priest, nevertheless she more truly did not acquire a quasi-domicile. And although she acquired this new quasi-domicile, she did not thereby lose the prior domicile. For if someone can have a double domicile, why will he not be able to have at the same time both a domicile and a quasi-domicile, as in fact is verified in students who for several years study, for example, in some University and afterwards return to their homeland?

Nor likewise can any difficulty be had from the fact that that girl had in the meantime attained majority,

For first, since, as long as a child of the family is under paternal power, it is not permitted to her to transfer her domicile elsewhere; therefore meanwhile the aforesaid girl retained the paternal domicile. Then from the majority which she attained, it does not follow that she had previously lost the domicile of her parents or of the family, but it follows only that, according to modern laws, she can, if she wishes, transfer her domicile elsewhere. C. I. 220, 221; C. G. 372, 374.

Vol. I, Tr. III, Chapter VI: The Author of Law · Vol. I, Tr. III, Ch. II, Art. I, § 2. On the Authority of the People and on the Secondary Forms of Human Law

Lastly, from the fact that this girl had been bereaved of her parents, it does not follow, first, as is clear, that by the death of her parents she lost her domicile; nor, as is clearly gathered from the case, did it happen that that girl had in reality stayed outside the domicile of her parents or family, except for that last and brief time of service, of which there is question. - I. M. 199.

Bucceroni, Institutions of Moral Theology

Gennaro Bucceroni, S.J. — 12 passages

Vol. I, On Laws, II. On the Author of Law

n. 180.

Who generally can make laws? - Since God is Lord of all, and has ordered obedience to superiors not only ecclesiastical but also civil, not only he himself, but they also can make laws. L. 140. Hence several laws are distinguished:

Eternal law, which is: The eternal reason and will of God commanding the natural order to be preserved and forbidding it to be disturbed. S. Aug. l. 22 Contra Faustum c. 27. It is the beginning and foundation of every law; for from it flows natural law, and from natural law the remaining laws take their force and norm. Cf. S. Th. 1. 2. q. 91. a. 1, q. 93, q. 95 a. 2, q. 96. a. 4; Wirceburg. De Legib. c. 1. a. 2.

Natural law, which is the eternal law of God promulgated to men through right reason, by which we discern what is good and what evil, the good to be done and evil to be avoided. Therefore the object of this law is that which is per se and intrinsically good or evil. In it are distinguished the first principles of morals, immediate conclusions, and mediated conclusions. Cf. S. Th. 1. 2. q. 91. a. 2. 6, q. 94; L. 102; Wirceburg. l. c. a. 3. 4. 6.

Divine law, which is law given by God through revelation. It is twofold; for one is contained in the Old Testament, the other in the New Testament. The Old Testament contained ceremonial, judicial, and moral precepts. Only the moral precepts remain to be observed today, the rest having been abrogated by the New Law. Matt. 19:17; 1 Cor. 7:19. The New Testament, besides counsels, contains precepts of catholic faith, morals, sacraments, sacrifice, and ecclesiastical hierarchy. The moral precepts are those very things which stand by natural right, and the law of the unity and indissolubility of marriage is that which, enacted from the beginning of the world, was confirmed by Christ. Matt. 19:4 seq. Cf. S. Th. 1. 2. q. 91. a. 4. 5, q. 98-108; L. 103. - The legal precepts of the Old Testament, or ceremonies, sacred things, sacrifices, sacraments of the Mosaic Law, all ceased after the Gospel was promulgated, nor can they be observed without sin. Eugene IV, B. Cantate Domino. - Wirceburg. l. c. c. 2.

Canon and civil law. The former is from ecclesiastical power, and it touches those things in the Church which regard the salvation of souls. The latter is from civil power, and moderates rights and obligations between citizens and citizens; between citizens and society and its Prince; between nation and nation. Whence private, public, and international or law of nations arises. C. 1. 13 de Const., C. 2 e. t. in 6; Inst. l. 1. t. 1. 2, l. 2. t. 1. § 11; L. 2 de Origine Iuris etc. §§; S. Th. 1. 2. q. 91. a. 3, q. 95, 2. 2. q. 57; Wirceburg. l. c. c. 3; E. M.

But the law of nations can be taken otherwise, namely insofar as it is distinguished from civil law. Appositely S. Th. 1. 2. q. 95. a. 4 says: "It belongs to the notion of human law that it be derived from the law of nature, and according to this positive law is divided into the law of nations and civil law. For to the law of nations pertain those things which are derived from the law of nature as conclusions from principles, such as just purchases, sales, and other things of this kind, without which men cannot live together with one another; which is of the law of nature, because man is naturally a sociable animal. But those things which are derived from the law of nature by way of particular determination (of certain common things, a. 2) pertain to civil law, according as any city determines something suitably to itself." And thus likewise that one must not kill pertains to the law of nations; for it is derived as a conclusion from the fact that evil must be done to no one. To punish the criminal with such or such a penalty pertains to civil law; for it is a determination of the common law of nature, that he who sins be punished. S. Th. ib. a. 2. "And therefore Caius the jurist says, L. 9 ff. De Iust. et iure: What natural reason has constituted among all men, that is preserved equally among all, and is called the law of nations." S. Th. 2. 2. q. 57. a. 3. Hence the law of nations embraces not only those things which are imposed by the very necessity of nature, as the division of goods, but also those things which flow from a certain highest suitability of nature, and which therefore are preserved by all through use and custom, by a certain implicit compact, or, when doubts arise, by an explicit compact, such as to enter a foreign region, unless danger arises from it for that region; free navigation of every sea; mutual commerce among peoples; transmission of letters; abolition of servitude, etc. - But positive law more determinately defining the various relations to be observed among nations will be able better to be called international law.

180 bis. Note: Natural law is altogether immutable, since it regards those things which by their nature are good and by their nature are evil. Against this immutability, as is clear, certain things permitted by God have no force, which because of peculiar circumstances were no longer opposed to the right order, as, for example, polygamy permitted to the patriarchs, dissolution of marriage, etc.; or were not opposed to that order because the matter is subject to divine dominion, as theft once permitted to the Hebrews. But change is not had as regards the precepts of natural law which are called primary, without which the order of things cannot exist, as, for example, the honor due to God, subjection in man of the lower part to the higher, etc.; but only as regards those precepts which are called secondary, and which regard not the very being of the order, but the perfection of the order, as, for example, the marriage of brothers and sisters permitted to the first parents. - S. Th. 1. 2. q. 100. a. 5; Wirceburg. De Legib. c. 1. a. 5.

Canon Law: The collection of canonical laws constitutes Canon Law. Yet some canonical laws are contained in the Corpus Iuris, others are outside it. The Corpus Iuris contains three Parts. The first part contains the Decree of Gratian, a Benedictine monk, around the year 1150, in which, in a threefold part, under the title on Distinctions, on Causes, on Consecration, there is treated successively of ecclesiastical persons, ecclesiastical judgments, and sacred things. This collection is not authentic; therefore the individual texts have and retain their force from themselves, not from the collection. The second part contains the Decretals by S. Raymond of Pennafort, of the Order of Preachers, in the year 1234, in which likewise, in five books, there is treated successively of persons, judgments, things, marriage, and penalties. This collection, completed and published by order of Gregory IX, is authentic, and therefore the laws contained in it have the force of universal laws from the very fact of insertion into it. The third part contains the sixth book of the Decretals, so called because it was added to the five books of the Decretals of Gregory IX. It was published by the authority of Boniface VIII in 1298; therefore the collection is authentic, and proceeds in the same order as the Decretals of Gregory. This third part also contains the Clementines and Extravagantes. The Clementines are so called from Clement V, who after the Council of Vienne, over which he himself presided in 1311, ordered the Constitutions issued by himself and by the same Council of Vienne to be collected. Therefore this too is an authentic Collection. It is divided into five books. This same third part contains the Extravagantes of John XXII and the Common Extravagantes. The former are constitutions issued in the earlier years of the pontificate of the aforesaid Pontiff. The latter are other Constitutions issued by John XXII and by other Pontiffs, divided into five books. Although all those Constitutions are genuine, nevertheless they do not constitute an authentic Collection. The other Constitutions that are present, besides these, of the Council of Constance, of Trent, and of the Vatican, and also of the Supreme Pontiffs, issued afterward, were not collected into the Corpus Iuris.

Civil Law: Roman Law is contained in the Corpus of Civil Law issued by order of Justinian in the 6th century. It embraces four parts: the Institutes of Justinian, divided into four books, which are subdivided into titles and paragraphs; the Pandects, which comprehend selected responses of jurists, to which the force of law was attributed, also called the Digest or Digests, because they contain legislation arranged in order, and are divided into fifty books, which are subdivided into titles and laws; the New Code, or repeated lectures, that is, in a second edition or publication, C. Cordi nobis, Nov. 16, 534, which contains twelve books, subdivided into titles and laws, and embraces the constitutions of Princes; the Novels, or Constitutions issued after the Code, which are not all of Justinian himself, and are genuine, although their Collection is not authentic as the three preceding parts are. Modern law is contained in modern Codes, which are divided into books, titles, and articles.

n. 181.

Who make laws in the Church? - The Church is a true and perfect society, plainly free, superior to civil society. It has power conferred on it by God not only of directing through counsels, but also of commanding through laws; nor does it enjoy only legislative power, but also judicial and coercive power. Its laws, independently of any civil power whatever, have force and oblige in conscience, and they do not only stand in matters of faith and morals, but also extend themselves to the discipline of the Church. Cf. E. M. 180. The Primacy of the Supreme Pontiff was instituted by Christ, and it is of divine right that Blessed Peter have perpetual Successors in that primacy. But the Roman Pontiff is the successor of Blessed Peter in the aforesaid primacy, not only of honor, but also of jurisdiction, over the universal Church. Likewise the Roman Pontiff is infallible when he defines a doctrine of faith and morals to be held by the universal Church. And he has supreme power of making laws for the whole Church, nor does he in any way violate the rights of Bishops by various reservations. Bishops have no power except one dependent on the Supreme Pontiff and subordinated to him. For the Church is not instituted nor administered in the manner of a republic. C. Si quis 2 de Maior., C. Ut animarum 2 de Const. in 6. Legates also make laws in their Provinces, but in the name and by the authority of the Supreme Pontiff. C. Nemini 10 de Off. legati. Legates are those who are deputed by the Supreme Princes for handling more grave affairs, or a generality of affairs.

A General Council is principally composed of all the Bishops of the catholic world. It can make laws for the whole Church. But its Decrees, in order to have force, must be confirmed by the Roman Pontiff. - A Provincial Council is principally composed of the Bishops of some province, with the Metropolitan presiding. From the Council of Trent it would have to be held every three years. It makes laws for the Province. Its Decrees are to be reviewed by the S. C. C. But they are approved in common form, so that they acquire nothing of new right; and in specific form, so that they become pontifical laws. Sixtus V, C. Immensa aeterni; Pius X, C. Sapienti concilio, Ord. serv. in R. C., special norms c. 7. a. 4 par. 6. But the Metropolitan can promulgate them by public edict. Nor indeed do the Decrees of Councils, whether plenary or provincial, lack their force unless they have been incorporated into diocesan statutes. S. O. Sept. 10, 1896. Bishops make laws in their own dioceses, namely after they have been canonically instituted in their own dioceses, Apostolic letters having been expedited and exhibited, C. Iniunctae de Elect. Extrav. Comm.; C. of Pius IX Romanus Pontifex. For they are true Rulers in their dioceses, Acts 20, 28. But a power of this kind is necessary for the right administration of the diocese. Hence Bishops can indeed make laws, each for his own diocese, even without the consent of the chapter, unless however the question concerns those things which can yield to the prejudice of the chapter or clergy. C. Novit 4, C. Quanto 5 de His quae fiunt a prael. Nevertheless the custom has prevailed that, unless it has been expressly provided otherwise, those things which a Bishop decrees outside synod, the chapter not having been consulted, do not have the force of law, but of a simple statute, which consequently ceases when the right of the Bishop ceases, by death, translation, abdication. But statutes of the Bishop, even outside synod, yet made and promulgated after the counsel of the chapter has been heard, according to the truer opinion, have the same perpetuity as Synodal Constitutions. Bishops can decree nothing against the laws of the Pontiff, nor in matters reserved to the Holy See, since an inferior does not have jurisdiction over a superior. Bened. XIV De Syn. l. 12. c. 5. n. 1, l. 13. c. 5; L. 104, l. 7. n. 6. Archbishops and Patriarchs cannot make laws for the dioceses of suffragans, because they are not superiors properly so called, although they can settle their disputes brought before them. - L. 105; Struggl q. 2. n. 6; E. M.

n. 182.

Can others also besides the Supreme Pontiff and Bishops establish laws? - A Cardinal can, by reason of his dignity, make laws in the Church of his Title. C. His quae de Mai. et obed., C. Querel. de Elect., C. of Innocent XII Romanus Pontifex, Sept. 17, 1692. But the College of Cardinals, when the Roman See is vacant, if necessity does not urge, cannot make laws; rather it must immediately apply itself to the nomination of another Pontiff. Clem. 2 de Elect., C. 3 de Elect. in 6; Pius X, C. Vacante Sede, Dec. 25, 1904, t. 1. c. 1-4.

Abbots and exempt Prelates can make laws for their territory, where they exercise quasi-episcopal jurisdiction; for legislative power is joined to jurisdiction. The cathedral chapter, when the See is vacant, can establish laws which would be necessary for various circumstances. For by right it succeeds to the jurisdiction of the Bishop. C. His quae 11, C. Cum olim 14 de Mai. et obed.; L. 104; Lugo Resp. Mor. l. 1. d. 21. n. 5. Chapters or General Congregations and Regular Prelates are able to establish true laws within the limits of their jurisdiction, according to the proper Constitutions of the Order. For they have statutes approved by the Supreme Pontiff, which grant them this faculty. Jurisdiction, namely granted by the Pope, but not by force of the vow, which, since it is personal, gives only the power of imposing precepts, but by no means of establishing law. Elbel 278-280.

Abbesses or Superiors of nuns cannot make laws properly so called, since they are not capable of ecclesiastical jurisdiction. Nevertheless they can exact obedience in conscience concerning things commanded, or concerning those things which conduce to the advancement of nuns according to the rules. For they have the right of commanding both from the vow of obedience emitted by the subjects and from the necessity of discipline which must be preserved in the community. Hence novices, although they are not bound to obedience strictly by force of a vow, which they have not emitted, are nevertheless in some way bound to obey by reason of regular discipline. For this reason "abbesses can make precepts for the right governance of the house, and even oblige under grave fault." L. 104. Cf. Schmalz. l. 1. t. 31. n. 38. 39; Elbel 281-284.

Pastors cannot establish laws. The reason is that they do not have jurisdiction in the external forum. Colleges can establish statutes for themselves, which bind their members as agreed compacts. Nevertheless the statutes of chapters in cathedral churches, etc., acquire the force of law from the approval of the Bishop. Bened. XIV De Syn. l. 13. c. 5. n. 1. If Chapters neglect to make their own Statutes, the S. C. C. commands Bishops that they themselves make Constitutions and enjoin them on the Chapter to be observed. Lucidi De Visit. SS. LL. V. 1. C. 3. § 4. n. 146. - E. M.

n. 183.

Who make laws in Civil Society? - The Prince or the people or both together, according to the varied form of government, make laws. In monarchical Governments, Princes who enjoy supreme power in civil society make laws. In representative Governments the power of making laws resides in the King, or in the President of the republic, and in the legislative Body constituted from Deputies, or also from Senators. Indeed secular Princes are true superiors in civil society, and that power is necessary for the right governance of civil society. Therefore there is no doubt that their laws can also oblige in conscience. L. 104; S. Th. 1. 2. q. 105. a. 1; E. M.

n. 184.

Note: 1. The Church, condemning liberalism, condemned errors averse to catholic doctrine, not certain forms of civil governments or political factions which are called liberal. S. O. Aug. 29, 1877. The will of the people publicly manifested by no means constitutes the supreme and independent law. A people sins by not receiving without any cause a law promulgated by the Prince. - Syll. prop. 39 seq.; E. M. 166. 168.

"The Supreme Pontiff will be able to abrogate or correct civil laws of other Princes if they are opposed to equity." L. 103. For although the Supreme Pontiff does not have direct power to establish all laws obliging in civil matters, but only in ecclesiastical matters, C. 13 de Iudiciis, C. 13 Qui filii sunt legitimi, nevertheless indirectly he has power also in this matter, insofar as he can correct civil laws harmful to the salvation of the faithful, and can supply the negligence of civil Princes, C. 1. 2 de Empt. et vend.; C. 1. 2 de Tregua et pace. And thus of ancient Roman Law "some civil laws are expressly approved by Canon Law, others expressly corrected, others neither approved nor reproved.... Approved laws without doubt oblige in conscience.... Corrected laws indeed do not oblige in conscience.... Those not reproved seem tacitly approved by Canon Law.... C. 1 de Nov. oper. nuntiat.... Likewise C. Super specula de Privil.... And Pope Gelasius, ep. 4 to Emperor Anastasius, wrote: As far as pertains to the orders of public discipline, the Bishops of religion themselves also obey your laws." L. 106. Understand these things not only of Roman Law, which once prevailed, but also of Civil Law which prevails at present. For the order of public discipline and the command of legitimate power are the reason why Roman Law is approved by Canon Law, and the same reason prevails in any well-ordered civil society. But Roman Law with Canon Law once constituted the Common Law, so called because for many centuries the whole world commonly used it.
"Certainly both the Church and the state each has its own principate; and therefore in managing its own affairs neither obeys the other, certainly within the limits constituted by the proximate cause of each. Yet from this it in no way follows that they are disjoined, much less fighting." Leo XIII, Enc. Sapientiae christianae, Jan. 10, 1880. Since each power is from God and tends to the same end, they foster one another. Hence, whenever the matter is common to each Law, Civil Law is supplied from Canon Law; and, on the contrary, what is lacking to Canon Law is supplied from Civil Law, C. 1 de Nov. op. nunc., not indeed Roman Law, which once prevailed, but that which now prevails; because each Law is mutually fostered for this reason, that each Power ought mutually to be fostered, certainly not the power which has ceased, but that which exists. Nevertheless Canon Law, when it takes interpretation from Civil Law, must be interpreted not from that which now prevails, but from Common Law; because it was established while that was commanding. - Leo XIII, Enc. Arcanum, Feb. 10, 1830, par. Nemo autem, Enc. Immortale Dei, Nov. 1, 1885; Pius X, Enc. letter to the Bishops of France Vehementer nos, Feb. 11, 1901, Enc. Letter Iamdudum in Lusitania, May 24, 1911; Bened. XIV De Syn. l. 9. c. 9 seq.; L. 104. 105. a 106; D'Annib. ed. 4. p. 1. n. 201; E. M.

n. 185.

Can tyrants make laws, so that these truly oblige? - Laws and sentences, in themselves honorable and just, made by a tyrant, oblige, whether he is such de facto, or by administration; or whether he is such de iure, or by title, but peacefully possesses the kingdom, and has not yet by prescription, by consent of the republic, by cession of the legitimate Prince, become himself a legitimate Prince. The reason is that the former has legitimate power, although he abuses it; the latter also has power, although usurped, and is bound to restore it to the legitimate Prince. For society cannot stand without some power, nor ought it ruin itself. He has power: whence this does not regard those who have usurped spiritual power. But peacefully, etc.; otherwise there is no obligation of obeying him, since he is not yet a true superior. - L. 94, H. A. tr. 8. n. 13; S. Th. 2. 2. q. 104. a. 6; Letter of Leo XIII Magna animi nostri, May 3, 1892. Cf. E. M. n. 705.

n. 186.

Note: The obligation of obeying the laws of a tyrant who has usurped power is founded on the necessity of preserving order in the community. But subjects can also perform certain things which yield to some utility of the tyrant, such as to pay certain tributes, keep watches, dig for the construction of a fortress, etc.; since these are works indifferent per se, and to refuse them would not profit the legitimate Prince, but would inflict most grave harms on the subjects themselves. But it will be altogether illicit to do other works which proximately and formally look to confirming the unjust usurpation and to inflicting damage on the legitimate Prince. La-Croix l. 2. n. 275.

n. 187.

You will resolve: If a tyrant is such by right or title, in the very act of invasion he can make no laws, nor is he to be obeyed, nor is it licit in any way to help or recognize him, so that he may acquire possession of the kingdom and be established in it. The reason is that the invasion gives him no right.

n. 188.

Whether custom has the force of law? - Custom, as it is considered materially, is a manner of acting introduced from frequent acts of the whole community, or of the greater part of the same. But formally it is a certain right constituted by morals, which is taken as law, even if law, namely written law, is lacking. Schmalz. l. 1. t. 3. n. 1. Custom has the force of law. This is clear: 1. From the common opinion of theologians. 2. From various places of either canon or civil Law, from which it is undoubtedly drawn that custom is to be held as law. Cf. tit. de Consuet.; L. 32. 33. 35. 36 de Legib.; C. I. 2. 580. 1654; C. G. a. 671. 3.

By reason; for, once a custom has been introduced, for example, against a law, the law no longer contributes to the common good; and on the contrary, once introduced beyond the law, the reason of the common good urges. - L. 107; S. Th. 1. 2. q. 97. a. 3, 2. 2. q. 79. a. 2 ad 2; Struggl q. 4. n. 28 seq.; Ithur. Cas. 53. n. 7; Bouix De Princip. p. 2. s. 6; Wirceburg. c. 5. a. 4. In the external civil forum generally, by reason of public order, no custom against law is usually admitted, neither past nor future, but only in certain matters determined by the law itself. C. I. preliminary law, year 1866, a. 48, art. 580. 1654, C. I. Comm. 1; C. H. 4 and Law May 11, 1888, a. 5. 6. 7; C. H. 5. 6; C. L. 9; C. G. 671; C. He. preliminary title a. 1. 5. But in canon law, since this Law chiefly regards the good of souls, custom has constantly been admitted, and is also admitted at present.

n. 189.

How manyfold is custom? - A threefold custom is usually distinguished: according to law, namely that which confirms and interprets an already established law by long use, Cf. Can. De istis D. 4; L. Si de interpretatione de Leg. 27 Dig.; beyond law, which introduces a new right, commanding or prohibiting something concerning which no written law is had, Cf. Can. Consuetudo D. 1; L. De quibus de Leg. 32 Dig.; against law, namely by which either a law is not received, or, once received, is abrogated or derogated. L. 107. 108. "Custom both has the force of law, and abolishes law, and is the interpreter of laws." S. Th. 1. 2. q. 97. a. 3. - C. I. 580. 1654; C. G. 671.

Besides, one custom is universal, which obliges all in the universal Church, or in the whole territory of some temporal Prince; another particular, which obliges only in some place, in some diocese, etc. The style of the Curia is reduced to particular custom, which is taken for the customary observance in the Roman Curias, and for unwritten law, and is to be observed as law from the Constitution Cum gravissimae of Paul III. - But generally the customary observance in some place is called the local style, and outside the place it has no force, Riganti on Reg. 42. n. 225, on Reg. 45. § 1. n. 97 etc. From C. I. Comm. 89, C. I. Civ. 1513, in the matter of commerce style and custom prevail over common Law. - Suarez l. 7. c. 5. n. 5.

n. 190.

What things are required for having custom? - In order that custom be legitimate several conditions are required:

That it be rational, that is, that it not be an incentive of sin, nor pernicious to the common good. Otherwise it can never acquire the force of law, since law must be honorable, useful, just. Hence there can be no custom against natural and divine law, but only against human law; nor against this in those things which break the bond of ecclesiastical discipline, C. 5. 11 de Consuet., or which can be constituted only by privileges. For since custom is an unwritten law, it can be had only in those things which can be constituted by laws. L. 39 de Legib.; L. 107; S. Th. Quodl. 2. a. 8; Schmalz. l. c. n. 7.
It is required that it be introduced by the whole community, or at least by the greater part of it, capable of being governed by law, and capable of making law; and if it cannot of itself make law, it suffices that its manner of acting can obtain the force of law, the consent of the Prince acceding. For that is judged morally done by all which is done by the greater part. But custom must be introduced by those for whom laws or statutes can be constituted. Hence not only perfect societies can introduce custom, but also imperfect ones, a province, city, diocese, chapter of canons, religious order, monastery, etc. Women cannot introduce customs against the proper laws of men, nor conversely; as neither can ecclesiastics against the laws of laymen, or conversely, unless the matter is common. Therefore clerics as regards spiritual matters are not obligated by a custom made by laymen, since laymen are incapable as regards spiritual matters of introducing custom for clerics. Private persons cannot introduce custom. L. 32 de Legib.
But it must have been introduced through repeated acts, and not interrupted until the custom is completed, voluntary acts, that is, neither from ignorance nor from error, for example if the people thinks that a law exists which in reality does not, nor extorted by force and fear, but from an intention of introducing custom and of obliging themselves, or disobliging themselves, finally public acts. For only these acts, with these conditions posited, can be had as conducing to the common good, so that then the legislator can reasonably consent to such a manner of acting. Moreover custom, since it has the force of law, must be promulgated no less than law. - Not interrupted: they can be interrupted in two ways, in fact, if the community ceases to act; in right, if the superior urges the law. With the intention of introducing custom: this mind or intention is gathered from circumstances, namely if the custom is constantly observed, and with no light inconvenience, if transgressors are punished, if pious men commonly think so. - L. 39 de Legib.; S. Th. 1. 2. q. 95. a. 4, q. 97. a. 3.
It is by no means required that good faith always be present from the beginning, for even by sinning a custom can be made which afterward becomes honorable. For custom against law has a threefold state. In the beginning, all those introducing the custom against the law sin. In progress, those using a custom introduced by their elders no longer sin, but they can be punished. In the end, they neither sin nor can be punished when using the custom already prescribed. Therefore custom cannot altogether be equated with prescription. L. 107; Schmalz. l. c. n. 6.
It is required besides that it endure for a long time. But here one must distinguish: either custom is introduced by way of connivance, namely the legislator knowing and conniving, which happens when the legislator knows that the law is not received and dissembles, although he could easily urge observance; or it is introduced by the ordinary way of prescription, the legislator being ignorant. If the first, Benedict XIV teaches that "no space of time is necessary.... For then, after a few acts tolerated by the superior, it is presumed that he by this very connivance tacitly revokes his law, and does not wish to bind by it the community to which it is displeasing." De Syn. l. 13. c. 5. n. 3; Ithur. Cas. 53. n. 7. 8. If the second, there are several who require 10 years, both as regards Roman Civil Law and Ecclesiastical Law. But others require 40 years as regards each Law. For from this Law an inveterate, long-lasting, long, long-lived custom is required. L. 32. 33. 35 de Legib.; L. 1. 2 C. Quae sit longa. Consuet.; L. 107. 139, l. 3. n. 849. And here must be recalled centenary and immemorial custom, by which all those things can be acquired which can be acquired by privilege and indult of the Prince, C. 13 de Iudic. n. 5; and it is not revoked even by a clause revocatory of any custom whatsoever having been added, "unless it is expressed, because when the superior wishes also to revoke that custom, he expresses it." L. 109.
Now custom can obtain the force of law insofar as the consent of the Prince accedes to it, either express, or tacit, which is had when the Prince knows the custom and, although he could, does not contradict it, or at least legal consent, which is that which is had beforehand through laws universally approving legitimate customs. For legal consent of this kind it is not required that the Prince know the custom; nevertheless it is required that it not be established that he was unable to protest against the custom. For if the Prince constantly resists, then no custom is made. But if no law of this kind is present, such a general will is always supposed in the legislator. For the common good demands this. - C. Cum tanto fin. de Consuet.; L. De quibus de Legib.; L. 107, l. 3. n. 290. 1009; Suarez l. 7. c. 8. 15; Schmalz. l. 1. p. 1. t. 4; Gur. Cas. 132 seq.; S. Th. 1. 2. q. 97. a. 3; E. M.

n. 191.

What if contrary custom is prohibited by law? - "If the clause is added, notwithstanding any custom whatsoever, the opposed past custom is understood to be reproved, but not the future.... But if the clause reproves any future custom whatever, still they say that it is more probable that such a custom can abrogate the law. If it is reproved... as irrational... as contrary to natural or divine law, then no custom can have force. But if it is reproved as irrational for the time in which the law is made, then from a new cause it can be rendered rational." L. 108, l. 6. n. 325 toward the end; A. S. S. v. 4. p. 26. Since every law is rational, it cannot exclude rational contrary customs after they have already been formed. Therefore, if the clause is added, any contrary custom in the future being excluded, this clause renders more difficult an arising ordinary contrary custom, and excites the vigilance of the legislator to impede it as far as possible, but it will not exclude an extraordinary, centenary and immemorial custom already formed.

Tanquerey

Adolphe Tanquerey, S.S. — 2 passages

Vol. II, Fundamental Moral Theology…, On Laws

n. 333.

I. Concerning the Author of Civil Law.

1. The faculty of making laws, as to temporal matters, resides in legitimate superiors, who are different according to the different constitution of society. Under a regime of absolute monarchy, this authority is exercised by the king, or supreme prince. Where aristocracy, or the power of the nobles, prevails, laws are established by the Assembly of nobles. Under a democratic regime, power resides in the assembly elected by the community. In most modern societies, laws are proposed by ministers of the State, or members of the legislative Assembly, and, after public discussion before the same Assembly, are accepted by vote and sanctioned by the supreme power.

Therefore it is necessary that all those upon whom the care of establishing laws lies act equitably and honorably, and intend the public good, not that of a few. Therefore they sin gravely who accept money for casting a vote for a law which is foreseen to be harmful to the public good.

n. 334.

1. A usurper, who obtains public power, of himself indeed does not have the right of making laws; but as soon as he enjoys quiet possession of the government, with the people at least tacitly acquiescing, it is necessary, on account of the public good, to obey his precepts and laws, otherwise just, until his authority is shaken off by legitimate means. Leo XIII clearly taught this: "But that in matters not unjust those who preside are to be obeyed, for the sake of preserving order, in which the foundation of public safety is found, no one doubts: yet it does not follow that, by obeying, whatever is unjust either in the Constitution or in the administration of the state is approved."¹

¹ Leo XIII, Epist. 22 Oct. 1880, to the Archbishop of Paris.

Vermeersch, Theologia Moralis

Arthur Vermeersch, S.J. — 15 passages

Vol. I, Tr. III, Chapter VI: The Author of Law

n. 186.

— It is manifest first that to him who has set forth the end and is master of those who are to be ordered to the end belongs the very ordination to the end, so that he is, before all others, legislator. Then, subordinately to him, the ordination belongs to him who must attain the end. Wherefore in a more universal way that holds which St. Thomas seems to have said concerning human power alone: "To order to the end belongs to him to whom that end is proper" ¹.

The end of the whole universe is God. Therefore God himself is demonstrated to be the first Legislator, before whom there is none; supreme, against whom no one can do anything legitimately or validly; universal, from whose command nothing is withdrawn.

Legislators next are those who preside over a community or social multitude.

These are said to represent the multitude, at least in this respect, insofar as they act for it and on account of its good. For the multitude to which the end belongs cannot, as such, act or ordain: as such, it is to be ruled and ordered, so that provision must be made for it by persons distinct from it.

The authority necessary for making an ordination is communicated by God, whether by the very will by which he wills human societies to exist - that is, by the will of the Author of nature ² - or by positive will, by which in the Old Testament he constituted Moses, Judges, Kings; by which in the New Testament he constituted the Church and handed her over to be ruled by Peter and his successors.

Observe that not even in the most perfect democracy can the making of laws belong to the multitude as such. For even where recourse is had to the so-called universal suffrage, however many members of the multitude are kept from sharing in suffrages because of incapacities, whether natural, under which children and the insane labor, or legal, of age, sex, improbity, they have no part in making laws; and matters are decided by some determinate plurality (therefore not by all).

The legislative power itself is delegable; and everywhere, from the supreme authority, by some definite manner of communication or delegation, it passes to others.

¹ In 1, 2, q. 90 art. 3 c. Cf. the commentary of Cajetan.

² But we omit the question concerning the first subject in which civil authority itself inheres.

n. 187.

— There are true human laws. If every legislative power proceeds from God, if of itself it inheres in God alone, therefore this power does not belong univocally to the other legislators and to God; and for a certain true reason God can be praised as the sole legislator, just as he is celebrated by the Church in the chant "Glory in the highest" as the sole Lord.

Nevertheless, because true power of commanding is conferred by God upon men, and there are many things which he himself permits to be ordered and defined by men, laws, from the author from whom they proceed, are truly some divine, others human.

There have been those who would deny to men the true power of causing law, who then would merely posit a condition, on which being posited, an obligation would arise from divine law, so that every right would be divine, either absolutely or conditionately. But a condition, which is sometimes necessary so that a cause may operate, does not assimilate the effect to itself as positive laws made by human authority are assimilated to the will of the human legislator, whether as to that which is commanded, or as to the force by which it is commanded, or as to the time through which it is commanded ¹.

¹ Cf., for example, Schiffini, Principia, n. 608, where he distinguishes cause from condition by this, that condition influences nothing, so that, with an equivalent condition substituted, the causality can remain the same in number.

n. 188.

— Jurisdiction. Furthermore the power of making laws belongs to the power of a more universal character which is called jurisdiction. This is the power of ruling a multitude, or of directing it efficaciously, both through laws and through precepts, judgments, and penalties. And in truth, in all these ways, right is declared, that is, in a general or particular way there is established that which can be demanded under the title of some justice.

n. 189.

— Laws of one commanding illegitimately. Of themselves, laws and sentences ought to be brought forth by legitimate authority. Yet those brought forth also by usurpers will oblige, if these possess the realm peacefully and are tolerated by the commonwealth. The reason is the very necessity of the common good, which requires that the community be able to be efficaciously directed to its end by him who has care of it. The legitimate Prince is judged to have ratified this, or God himself supplies his consent.

Indeed by positive compact, before the most recent war, it had been sanctioned that an invader of territory could issue decrees which, while he occupies the region precariously, would seem necessary for preserving peace.

But beyond that necessity and the reason of his own security he cannot command. The facts themselves clearly demonstrate that abuses can easily be committed in this matter.

n. 190.

Summary

— In some true sense, God is the sole Legislator. Dependently upon him, by communicated power, human legislators are also true legislators: these represent the multitude, at least insofar as they act for it. Their will is a true cause of obligation, not a mere condition.

Legislative power is part of the power of jurisdiction, that is, of the power of efficaciously directing a subject community to its end through laws, judgments, and penalties.

Because of the necessity of the commonwealth, the commands of a usurper can also be efficacious, whether from the consent of the legitimate Prince or from God himself.

Vol. I, Tr. III, Ch. II, Art. I, § 2. On the Authority of the People and on the Secondary Forms of Human Law

n. ¶1.

Certain things remain to be said concerning the authority of the people and concerning the secondary forms of human law. We shall consider here two secondary forms of human law: one, which is secondary with attention to the mode of promulgation, and is unwritten law or custom; the other, which accedes as a complement of the principal law, and is instruction or decree.

n. 256.

I. - On the Authority of the People

— Principle. The people, at least that people which, in a perfect society, either by God Himself, as in the Church, or by another legitimate constitution ¹, is subject to the legislative power of those governing, as such, is not the legislator. Wherefore it must receive the law which has been made, nor does a law formally cease because it is not accepted. Wherefore also the people does not have the power to introduce a new law; nor is it the authentic interpreter of laws.

But from the reasonable or benign will of the legislator, it can do many things for the firmness and interpretation of constituted right, as also for the origin of new right.

¹ We say this because St. Thomas and the scholastics of themselves acknowledge political power in the multitude itself, as long as it has not been transmitted to the prince. Cf. St. Th. 1, 2, q. 97 art. 3 ad 3; 2, 2, q. 57 art. 2 c. and ad 2.

n. 257.

— I. The action of the people upon the firmness of law. The force of law does not depend on the acceptance of the people; and Alexander VIII reprobated this proposition 28: "The people does not sin, even if without any cause it does not receive a law promulgated by the Prince." Wherefore, when it is a question of a new pontifical law, bishops and inferior prelates ought to bring it into use. Nevertheless:

If they prudently judge that a pontifical law is less fitting for their dioceses, bishops are permitted reverently to open the matter to the Pontiff, and, while the response is awaited, meanwhile, by epikeia, to hold the law as suspended. We judge that this, because of parity of cause, also holds concerning an inferior prelate to whom the commands of a greater Superior are committed to be executed.
If a law is altogether harsh, which could not be observed without a great change and disturbance of things, the subjects themselves will be able either to appeal from an inferior to a superior power (yet not from the Pope to a Council, since a Council is not above the Pontiff), and meanwhile, from the prudently conjectured mind of the Prince or by epikeia, to hold the obligation as suspended. Cf. Ballerini-Palmieri, I, tr. 3, n. 293.

Yet of itself an appeal by which subjects appeal from the bishop to the Roman Pontiff does not suspend their obligation of obeying.

If it is sufficiently established that a law is neither actually observed by most nor will be observed, the Prince is not judged to wish to urge the obligation as regards the few of better will, so that they are excused from it. Besides, a legislator who knows that his law is not observed by the greater part of the people and is silent about the matter is himself judged to revoke the law. Hence that celebrated saying: "Laws are confirmed by the morals of the people." But acceptance of the law by the people is to be presumed in doubt; and a legislator urging his law is of himself to be obeyed, because subjects each ought to follow their head rather than the remaining members.
The prudent discretion which can accompany the observance of law, and not rarely ought to accompany it, also allows this to happen: that if certain things received in dioceses and confirmed by usage are to be changed, the mandate of the Ordinary be awaited (Maschiat, Prolegomena I. C., § IV, 22).
A law, from the will of the Prince itself, can formally be removed by desuetude or contrary custom. Concerning this matter, below.

n. 258.

— II. Concerning the power of the people in the interpretation of law. Although the people is not the authentic interpreter of the law to which it is subject, nevertheless the mode by which it observes the law is much more easily approved by the legislator, who, on account of the common good itself, is judged to accommodate his mind to that usage. Wherefore in c. 29 it is said: "Custom is the best interpreter of laws."

n. 259.

— III. Concerning the power of the people in the origin of a new law. The people cannot introduce a truly obliging law except through custom. We must now treat of this.

n. 260.

II. On Custom

— I. Notion and conditions. Custom, as a thing of fact, is a frequent mode of acting and an inclination arising therefrom to act similarly. That fact sometimes brings forth custom as a thing of right, which is defined: right introduced by the long-standing morals of the people. For this to happen, various conditions are required, that is:

Some consent of the legislator, without which there is no law. The Code expressly establishes this concerning ecclesiastical custom: "Custom in the Church obtains the force of law solely from the consent of the competent ecclesiastical Superior" (c. 25). But that consent is not necessarily special, formally given to such or such a usage; general consent suffices, which is called legal, and is contained in a law by which customs furnished with certain endowments are generally held as ratified. Thus c. 27 acknowledges customs contrary to law, c. 28 customs beyond law; but canon 29 expressly commends customs which interpret law.

Nothing such occurs in modern civil right, by which customs contrary to law are of themselves rejected. Yet the civil legislator does not have the power to avoid every force of custom. And thus there are forensic customs which are a reason for magistrates to settle lawsuits outside all written right.

The people, as the subject of custom. When it is a question of a custom which has the force of law, there is required "a community which is capable at least of receiving ecclesiastical law" (c. 26), that is, a community for which a law is made. It is not enough that a law can be made concerning it. Cf. what was said above, n. 171. Such is the universal Church, a diocese, a religious Order, and its province; but not a parish or a religious house which is not a monastery of its own right. In the examples adduced, to every community capable of custom there is added a special legislative authority. Thus a bishop can establish diocesan laws, and a religious Order can establish constitutions or decrees for the Order. And there are provincial chapters, yet not of all or of most religious institutes, which establish proper ordinances of the province. But neither a cathedral chapter ¹ nor a pastor nor domestic authority establishes special right for a parish or house.
The morals of the people, that is, frequent, uniform, public, deliberate acts of the greater part of a community of this kind, so done that in the people there is a certain inclination toward them which the legislator would not oppose without some disturbance of the people. This inclination of itself will not be lacking where it is a question of abrogating a law; but where the question is of introducing an obligation, acts knowingly done (or without error of law), with the intention of obligating oneself, will very rarely be had; yet this, from c. 28 itself, is then required.
A long duration of time. Before the Code, a probable opinion was content with the space of ten uninterrupted years. Yet the Code, cc. 27 and 28, wills that a custom which introduces a new obligation or derogates from law be legitimately prescribed through forty continuous and complete years. But against a law which has prohibited future customs, only a centenary or immemorial custom can prescribe (c. 27). Cf. immediately below, n. 262, c.

Yet no time is required in a custom which the legislator tacitly approves and which is said to be by connivance. For then custom promulgates his own lawmaking will. Such is easily the usual interpretation of a law, from c. 29, which shows the favorable will of the legislator.

Reasonable morals, that is, such that although they are contrary to the present law, they can be sanctioned by the legislator as useful to the community. For since a community can often be led to its common good by two or more modes, it is not repugnant that a law and a contrary custom are both reasonable.

But usages cannot be reasonable which are repugnant to natural law or positive divine law (c. 27), or which break the nerve of ecclesiastical discipline, or provide license or occasion for sinning.

"A custom which is expressly reprobated in the law is not reasonable" (c. 27, § 2). Yet it can happen that, circumstances having changed, it afterward becomes reasonable.

¹ Capitular statutes are rather conventional. Cf. Wernz, Ius Decretalium, I, n. 94, against Bouix, De capitulis.

n. 261.

— Corollaries or scholia. 1. Custom differs formally from written law, not by the origin of obligation, not by efficacy, but by promulgation alone.

It differs from prescription properly so called, because prescription affects only private rights, but custom affects the very objective right of the community; because any private man prescribes unto his own private good against the private right of another, while the active subject of custom is the people; and custom is properly prescribed against no one, since it is valid from the will of the legislator; because prescription, but not custom, generally exacts good faith. Yet because of the continuous use and the space of time which custom requires, it becomes the object of prescription, and there is speech of a prescribed custom.
The nature of the thing is not changed when custom is reported in a written document, unless the writing itself is formally promulgated.

n. 262.

— II. Division. a) From efficacy or effect, custom is distinguished as according to law, beyond law, and contrary to law.

The first, which is also called inhesive, declarative, consists in the very common observance and therefore confirmation of the law.

Custom beyond law introduces an obliging norm which is opposed to no preceding one. Thus the obligation of the breviary, which now for the first time, by canon 135, has been promulgated in writing to all clerics of major orders. Thus many customs which explain the sense of an obscure law.

Custom contrary to law removes a preceding right in whole or in part. And observe that there is this difference between custom and the law of a particular legislator, that a special custom can derogate from a common law, while a particular legislator can do nothing against common right. For custom draws its force from the will of the universal legislator;

b) From extension, one custom is general, another special or particular. In ecclesiastical right, that which belongs to the whole Church is sometimes called most general; that which belongs to one ecclesiastical province or kingdom, general; that which belongs to a lesser community, special.

To special custom is referred the style of the curia, or the uniform mode either of deciding certain causes or of proceeding in the examination of a cause. It is said more strictly of a tribunal than of an administrative curia. A style of this kind, when it is used under the eyes of the Legislator, easily takes on the value of custom by connivance;

c) From duration, one custom is ordinary, or of long time; centenary, or of very long time; and immemorial, whose origin escapes at least common memory. For the proof of this, in canon law, it is required that witnesses by sight depose that they have seen the practice for forty years, and by hearing, that they have received from their elders that the same has always been observed.

Centenary and immemorial customs are privileged customs.

And although an immemorial custom surpasses a centenary one, in the Code they are practically equated. Cf. cc. 5 and 30, where both are excepted from the suppression made by the Code or by laws of contrary customs; c. 27, where both are said to be able to derogate from a law which prohibits customs; c. 63, where both are said to introduce the presumption of a conceded privilege. Therefore whatever can be obtained by privilege can be obtained by customs of this kind. Yet a clause which abolishes centenary customs does not yet touch immemorial customs.

N.B. Observe from St. Alphonsus himself, l. 3, n. 290, that "if it is probable that there is a custom," practically the obligation of the law to which that custom derogates ceases. Cf. Lehmkuhl, I, 189.

n. 263.

— III. Cessation. 1. Custom ceases intrinsically if it has become unreasonable. 2. Extrinsically, it ceases both by a contrary custom legitimately prescribed and by a law which suppresses it. Concerning that law these things must be held. A particular law abrogates particular contrary customs. And therefore, although customs are in force by the force of a general law permitting and sanctioning them, a bishop, in a matter where he is competent, can by diocesan law abolish diocesan customs ¹. A general law does not obrogate particular customs, unless it expressly provides this, as if it should say, "no contrary custom notwithstanding." For the clause "notwithstanding contrary custom," according to the interpretation received before the Code, is not yet judged to abrogate any custom other than a general one. But unless express mention has been made of them, a clause revoking any custom whatever does not suppress centenary or immemorial customs (c. 30). Nor is an immemorial custom removed by a clause which mentions centenary ones alone. Yet both are taken away by a clause which declares contrary customs to be corruptions.

In certain arguments, for example of rites, whose uniformity is greatly urged, the Holy See more difficulty admits that a custom which is opposed to liturgical law can be reasonable. Yet not every negative response to the question, "Can such a custom be tolerated?" demonstrates that the custom was previously unreasonable. For the Holy See could have used the occasion of the question to abrogate the custom positively.

Concerning previously existing customs which are contrary to the statutes of the Code, this particular thing is decreed by c. 5: all are abolished, unless the Code expressly provides otherwise, or unless they are centenary and immemorial. These, provided the Code has not declared them corruptions, "will be able to be tolerated, if the Ordinaries, according to the circumstances of places and persons, judge that they cannot prudently be removed." Those words invite Ordinaries to try to abolish them; but if they themselves have positively done nothing, they seem tacitly to connive at the custom, which therefore will continue to be in force. That is, that a former custom be tolerated, no positive action of the Ordinary seems necessary.

¹ Cf. Aichner, Comp. iuris can., p. 33.

n. 264.

III. - On Instruction or Decree

— Notion. The more principal and general definitions of right must be completed by secondary and more particular dispositions by which provision is made for the execution of the former. Those determinations can be contained in the law itself; but not rarely they are reserved to a certain less solemn form of an obligatory norm, which in canon law is called by the name of instruction, but in civil law rather royal decree or decree of the president of the commonwealth. Therefore, in civil law it proceeds from a power distinct from legislative power, which is called administrative or executive. But in canon law instructions are made through the same Congregations which the Supreme Pontiff has not rarely used for establishing laws.

Instruction indeed of itself denotes a simple declarative norm, whose direction is to be observed, rather than its literal observance is to be urged. Thus, on 19 September 1671, the Sacred Congregation of Propaganda Fide said that the resolutions of the Holy Office and Propaganda Fide were communicated by it "not as definitions, but as simple instructions," by which, in occurring doubts, they could and should be governed ¹. Yet not rarely certain points, especially secondary ones, are defined and imposed authoritatively by instructions. Thus, the Instruction of the Holy Office of 7 June 1867 imposed a stricter notion of quasi-domicile than was being handed down by the most approved authors: yet the competence of a pastor to assist at marriages then depended on that notion. Thus, when the death of a prior spouse must be proved, the instructions of the Holy Office of 13 May 1868 and 29 August 1890 are to be followed. Wherefore Wernz, I, n. 146, III, only warns that we not attribute the force of universal law to all instructions.

That distinction between laws and instructions is clearly rendered in the Motu Proprio Cum Iuris canonici, 15 September 1917, by which Benedict XV reserved authentic interpretation of the Code to a special Commission. For it has this to our matter: the Sacred Roman Congregations are not to issue new general decrees now, unless... Therefore their ordinary office in this kind will be both to care that the prescriptions of the Code are religiously observed, and, if the matter bears it, to issue instructions which bring greater light to the same prescriptions of the Code and produce efficacy (A.A.S. 1917, t. 9, p. 483). It also happens that general chapters of regular Orders mandate that instructions be made by the Superior general.

To give examples, the Normae de sacra praedicatione, which the Sacred Consistorial Congregation established on 28 June 1917, acceded as an instruction to the encyclical letter Humani generis, 15 June 1917 (cf. A.A.S. 1917, t. 9, pp. 318 ff. and 305 ff.).

Recently, to its responses concerning the force of the general decree Inter reliquas, 1 January 1911, on religious bound to military service, the Sacred Congregation for Religious added a true instruction (A.A.S. 1919, t. 11, p. 321 ff.).

Now further, these instructions and royal or presidential decrees are directed to the same community for which the law is destined, and they obligate it likewise. Yet these differences stand between laws and complements of this kind: 1. that they cannot derogate from the law which they complete; 2. that therefore, if certain things cannot be composed together, the law, although prior, is to be preferred to the later instruction; 3. that, when the law has been suppressed, the instruction, as accessory, must cease together with the principal.

N.B. Beware lest you confuse decrees of the civil executive power with general decrees of the Sacred Congregations, which are often true laws made in a less solemn form.

¹ Collect. Paris. Constitutiones S. Sedis, n. 5.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 16 passages

Vol. I, Pt. I, Tr. III, Ch. III, Article I. On the Author of Human Law

n. 165.

165. We presuppose as certain and known from Apologetics that there belongs to the Church a true and perfect legislative power. For the Church is a perfect society, of its own right and altogether independent from any other society whatever. Wherefore Pius IX in the Syllabus condemned proposition 19: "The Church is not a true and perfect society, plainly free, nor does she possess her own proper and constant rights conferred upon her by her divine founder; but it belongs to the civil power to define what the rights of the Church are, and the limits within which she can exercise those same rights."¹ - With these things presupposed, it must be said which persons in the Church have legislative power. They are the following:

¹ Denz. n. 1719. Cf. also nn. 1504, 1505, 1866-1888.

n. 166.

166. 1. The Supreme Pontiff can exercise legislative power for the universal Church and any part of it, and indeed independently of bishops, or an ecumenical council, or any other human authority whatever.² For Christ conferred upon Peter and all his legitimate successors, that is, the Roman Pontiffs, the power of ruling the whole Church, by these words: "I will give to you the keys of the kingdom of heaven,"³ and: "Feed my sheep."⁴

In our times the Supreme Pontiff is accustomed to exercise this legislative power by means of the Sacred Roman Congregations, which are eleven: 1. the Congregation of the Holy Office; 2. the Consistorial Congregation; 3. the Congregation concerning the discipline of the Sacraments; 4. the Congregation of the Council; 5. the Congregation set over the affairs of Religious Sodalities; 6. the Congregation of Propaganda Fide; 7. the Congregation of Sacred Rites; 8. the Ceremonial Congregation; 9. the Congregation for extraordinary ecclesiastical affairs; 10. the Congregation concerning seminaries and Universities of studies; 11. the Congregation for the Oriental Church. - To these Congregations there are added: 1. three tribunals, namely, the Sacred Penitentiary, the Sacred Rota, the Sacred Signatura; 2. five offices, namely, the Apostolic Chancery, the Apostolic Datary, the Apostolic Camera, the Secretariat of State, the Secretariat of Briefs to princes and of Latin letters. A longer and deeper treatment of all these things we leave to ecclesiastical law. The things necessary to be known for the moral theologian seem to be the following:

a) According to the present discipline, none of the enumerated Congregations (Tribunals and Offices) can make universal laws unless the express approval of the Supreme Pontiff accedes.⁵

b) Particular decrees and responses have the force of a precept for those only to whom they are directed.⁶ Nevertheless, even from particular decrees the mind of the legislator can be understood, and therefore such particular decrees can prudently be held as directive norms even in other regions, unless, however, this is specially forbidden.

Concerning the competence of the individual Congregations, these things are noted very briefly:

² Cod. Iur. can. c. 218.

³ Matt. 16:19.

⁴ John 21:17.

⁵ "But in all and singular the above-enumerated Congregations, Tribunals, and Offices, let this above all be solemnly observed, that nothing grave and extraordinary be done unless it shall have first been signified by the moderators of the same to Us and to Our successors for the time being. Moreover, any decisions whatsoever, whether by way of grace or by way of justice, need pontifical approval, excepting those for which special faculties have been bestowed upon the moderators of the same Offices, Tribunals, and Congregations, and always excepting the sentences of the tribunal of the Sacred Rota and of the Signatura given concerning their competence" (Const. Sapienti consilio of June 29, 1908). The same is established by Cod. iur. can. c. 244, § 2.

⁶ Cod. Iur. can. c. 17, § 3.

n. 167.

167. 1. Congregation of the Holy Office, which before the Constitution Sapienti consilio of June 29, 1908, was also called the Congregation of the Holy Inquisition, is supreme among all the Congregations, and the Supreme Pontiff himself is its president. To its competence there especially pertain: a) to guard the doctrine of faith and morals, and therefore to judge concerning the crime of heresy or concerning suspicion of this crime; to pass censure upon books, and to grant license to read prohibited books; b) to give dispensation upon the impediments of mixed religion and disparity of cult; c) to handle those things which are required by the so-called "Pauline privilege"; d) to it also has been devolved that matter concerning indulgences which regards doctrine, but what regards their use and concessions pertains to the Sacred Penitentiary; e) it alone is competent concerning all those things which regard the Eucharistic fast for priests celebrating Mass.⁷

⁷ Ibid., c. 247.

n. 168.

168. 2. Consistorial Congregation, of which likewise the Supreme Pontiff himself is prefect, treats almost all things which pertain to bishops and secular prelates and to the governance of dioceses; for example, it belongs to it to found new dioceses, to divide dioceses already established, to choose or confirm new bishops, to institute the administrator of a diocese, to judge concerning the obligations of bishops, to receive the reports of bishops concerning their dioceses, etc. In places, however, which are subject to the Sacred Congregation of Propaganda Fide, all these things are reserved to this Congregation.⁸

⁸ Ibid., c. 248, § 2.

n. 169.

169. 3. Congregation concerning the discipline of the Sacraments was newly founded by Pius X through the Constitution Sapienti consilio of June 29, 1908, and to it was committed the whole legislation concerning the discipline of the sacraments; for example, matrimonial dispensations (except the two enumerated above which pertain to the Holy Office), dispensations for receiving orders, provided there is question of secular clerics; for religious clerics must obtain all dispensations from the Congregation set over the affairs of Religious Sodalities. - Those things which pertain to ceremonies in administering the sacraments have been entrusted to the Congregation of Sacred Rites; but those things which pertain to the dogmatic doctrine of the sacraments, for example, whether they are valid or not, are treated by the Holy Office.

n. 170.

170. 4. The Congregation of the Council takes care of the whole discipline of the secular clergy and of the Christian people. Wherefore it belongs to it to take care that the precepts of the Church are observed, of which kind are fasting (except the Eucharistic fast, which pertains to the Congregation concerning the discipline of the Sacraments or to the Holy Office), abstinence, tithes, the observance of feast days, with the faculty of relaxing the faithful from these laws; to moderate those things which regard pastors and canons, likewise those things which pertain to pious sodalities, confraternities, Mass stipends, benefices, offices, ecclesiastical goods, diocesan taxes, and other things of this kind. To the same belong all those things which refer to the celebration and recognition of provincial and plenary councils and to the meetings or conferences of bishops.

n. 171.

171. 5. The Congregation set over the affairs of Religious Sodalities is called "most occupied," because to it pertain the affairs of the whole religious state of both sexes with vows, whether solemn or simple; likewise the affairs of Third Orders, and of those assemblies which, without vows, lead a religious life in common. Wherefore to this Congregation is reserved the granting of all⁹ dispensations and faculties which Religious Sodalities seek for themselves, for example, from interstices, from vows emitted, of secularization, of appeal against the commands of superiors, etc. But it is plain that a religious confessor who, for example, seeks the faculty of absolving his penitent from some reserved case, must approach the Sacred Penitentiary and not this Congregation. - Likewise this Congregation settles controversies both between bishops and religious, and between religious themselves, and between religious families. But if affairs of this kind are to be treated in the contentious forum, then they pertain to the Sacred Rota.

⁹ Cf. Decree of March 24, 1919 (Act. Ap. Sed. XI, 251). The only thing excepted seems to be dispensation concerning the Eucharistic fast for priests celebrating Mass. For this dispensation is not granted except by the Holy Office (Cod. iur. can. c. 251, § 3).

n. 172.

172. 6. The Congregation of Propaganda Fide has very great powers, but only in mission lands. All ecclesiastical affairs of those lands are subject to its jurisdiction; nevertheless, to other special Congregations it must refer a) those things which pertain to faith; b) to matrimonial causes; c) to general norms concerning the discipline of sacred rites;^9a d) those things which pertain to religious missionaries, insofar as they are Religious (but not insofar as they are missionaries).¹⁰ To the same Congregation likewise are subject societies of ecclesiastics and seminaries which have been founded exclusively for this end, that in them missionaries for foreign missions may be trained.

^9a Cod. iur. can. c. 252, § 4. Notwithstanding this statute, the Sacred Congregation of Propaganda Fide seems again to have obtained broader faculties.

¹⁰ But some religious institutes of missionaries, for example, the Congregation of the Immaculate Heart of the Blessed Virgin Mary, have obtained the privilege that even as religious institutes they should be subject to the Congregation of Propaganda Fide.

n. 173.

173. 7. The Congregation of Sacred Rites treats all things pertaining to the liturgy; it bestows insignia and honorific privileges pertaining to the sacred rites or ceremonies; it conducts processes of beatification and canonization. Concerning the historical section for ancient causes cf. Act. Ap. Sed. XXII, 67. In the year 1903, on September 7, a new catalogue was issued containing the faculties granted to this Congregation.¹¹

¹¹ Cf. Acta Pont. I, 391 sqq.

n. 174.

174. 8. The Ceremonial Congregation provides concerning ceremonies to be carried out in the Pontifical Chapel and Hall, and also concerning the sacred functions which Cardinals perform outside the Pontifical Chapel; likewise it takes cognizance concerning the precedence of Cardinals and Legates whom various nations send to the Holy See.¹²

¹² Cod. iur. can. c. 254.

n. 175.

175. 9. The Congregation for extraordinary ecclesiastical affairs is chiefly occupied with affairs which concern the Church and diverse civil governments, for example, in making or changing Concordats, and sometimes also in establishing or dividing dioceses and in naming bishops.¹³

¹³ Ibid., c. 255 and Letter of Pius XI of July 5, 1925 (Act. Ap. Sed. XVIII, 89).

n. 176.

176. 10. The Congregation concerning Seminaries and Universities of studies governs all those things which pertain to the discipline, temporal administration, and studies of seminaries;¹⁴ likewise it moderates studies in Catholic universities, even those which are administered by Religious; it gives the faculty of conferring academic degrees; it can also itself give to some learned man the title "doctor honoris causa."

¹⁴ From the Motu proprio of Benedict XV of November 4, 1915 (Act. Ap. Sed. VII, 493 sqq.) and from Cod. iur. can. c. 256. Cf. Act. Ap. Sed. XIX, 329 and 393, and XXII, 93 sqq.

n. 177.

177. 11. The Congregation for the Oriental Church treats all affairs which refer either to persons, or to discipline, or to the rites of the Oriental Churches; wherefore this Congregation, for Churches of the Oriental rite, possesses all the faculties which the above-mentioned Congregations obtain for Churches of the Latin rite, the competence of the Holy Office nevertheless remaining intact.¹⁵

These are the eleven Congregations now existing in the Roman Curia. Concerning the Tribunals and Offices of the Roman Curia there is no leisure here to act. Cf. our Manual of Canon Law, q. 104 sq. Concerning only the Tribunal of the Sacred Penitentiary, which sometimes the confessor must approach, let a few things be noted. According to the current discipline, the Sacred Penitentiary (ordinarily) now grants no dispensations for the external forum, as formerly used to happen. But for the internal forum it has ample powers even for Orientals (Act. Ap. Sed. XXII, 394): it grants absolutions from censures and reserved sins, gives condonations of ecclesiastical goods, sanations, matrimonial dispensations, etc.; moreover, it judges concerning all things which regard the use and concessions of indulgences.¹⁶

¹⁵ Cod. iur. can. c. 257 and Act. Ap. Sed. IX (1917), 529 sqq.

¹⁶ Benedict XV, Motu proprio of March 25, 1917 (Act. Ap. Sed. IX, 167). Cf. Act. Ap. Sed. XXVII, 97.

n. 178.

178. 2. Ecumenical councils, which are assemblies of bishops convoked from the whole world for judging and establishing concerning ecclesiastical matters under the authority of the Roman Pontiff, have the most ample faculty of making laws. Bishops gathered in an ecumenical council are not mere counselors of the Pope, but true legislators; whence also each one is accustomed to subscribe to the Acts of the council: "I, defining, have subscribed." But in order that an ecumenical Council truly have law-making power, it is required that it be rightly convoked, rightly celebrated, and rightly confirmed. Especially the last is required, namely, true confirmation by the Supreme Pontiff; if this is lacking, the decrees of the council are not true laws.¹⁷ More broadly concerning all these things is treated in ecclesiastical law.¹⁸ Since the Pope, as supreme ecclesiastical legislator, is above every council, he can also change all laws of ecclesiastical right made by some ecumenical council. Thus, for example, Pius X changed the law of clandestinity made by the Council of Trent.

¹⁷ Cod. iur. can. c. 227.

¹⁸ Cf. our Manuale iur. can. q. 21.

n. 179.

179. 3. Bishops can make laws for their own diocese, and indeed either immediately by themselves, or by means of plenary or provincial councils,¹⁹ or diocesan synods. The reason for this law-making power is that bishops have been placed by the Holy Spirit "to rule the Church of God."²⁰ Concerning this law-making power it must be noted: a) in diocesan synods legislative power belongs to the bishop alone, but not to pastors and others convoked to them;²¹ b) decrees of a plenary or provincial council oblige in the individual dioceses of that kingdom or province; c) bishops can indeed by their own authority dispense in laws which have been made in a diocesan synod, but not in laws of provincial and plenary councils, except in particular cases and for a just cause.²²

The reason is that bishops are above a diocesan synod, but are subject to a provincial as well as a plenary council rightly approved or reviewed; but in a particular case they can dispense in the statutes of such councils.²³

Concerning Other Ecclesiastical Legislators. Besides the legislators enumerated, there still exist several others in the Church, for example, legates a latere, apostolic nuncios, capitular vicars, regular superiors, general chapters, or congregations in religious institutes, etc. Concerning all these we cannot treat here in Moral Theology, since this matter pertains to ecclesiastical law, and their legislative power often depends upon an altogether special delegation.

Abbesses and other religious superioresses can indeed make precepts and statutes (obliging even in conscience), but not laws properly so called; for they lack true and perfect ecclesiastical jurisdiction.

¹⁹ Cf. Holy Office, September 10 (30), 1896, in Collect. de Prop. Fide n. 1952; cf. also ibid. n. 2013.

²⁰ Acts 20:28. That this text is to be understood of bishops is clear from the Council of Trent, sess. 6, c. 4, on orders.

²¹ Benedict XIV, De syn. dioec. l. 2, c. 5, n. 6-8; Cod. iur. can. c. 362.

²² Cod. iur. can. c. 291.

²³ Cf. Bonacina, De leg. disp. 1, q. 2, punct. 1, n. 14, and Act. Conc. plen. Americae latin. (a. 1899), n. 995.

n. 180.

180. On civil law-making power. That there exists in civil society a true law-making power, and that it is independent in its own order, there is no reason for us to prove.²⁴ For civil society is also a perfect society and consequently has true legislative, judicial, and coercive power. But who in diverse kingdoms is able to make laws depends upon the form of government, or of the so-called "Constitution." In a few kingdoms of today the supreme prince alone (whether male or female) can make laws; but in several other kingdoms the supreme prince ratifies laws made by the legislative body, for example, by Parliament. Even a queen, if she is truly the prince, can make laws, for a woman is capable of civil jurisdiction.

²⁴ Cf. Leo XIII, encyclical Diuturnum of June 20, 1881, on civil principality, and encyclical Immortale Dei of November 1, 1885.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 9 passages

Vol. I, General Moral Theology, Treatise: On Laws in General, Section B: On the Laws Whi…, Fourth Part: On Human and …, First Question: On Human L…, Article II: On the Author of Civil Law

n. 267.

267. Thesis. Legislative power originally is from God as from the author of nature. - This is clear a) from Scripture: Wis. VI, 2-4; Rom. XIII, 1-7; Prov. VIII, 15-16; Eccli. XVII, 14; b) from reason: for man is naturally a social animal; but society needs a power by which it is ruled; therefore this power is from the author of nature (cf. Leo XIII, enc. Diuturnum, June 29, 1881; Immortale Dei, November 1, 1885; and Humanum genus, April 20, 1884).

n. 268.

268. Power is communicated by God as principal cause, but through the multitude as instrumental cause.

n. 268.

The community of itself is bound to hand over that power, not for a time and in a revocable mode, but in a stable mode in perpetuity, not to be exercised in its name but to be possessed as proper: for thus, from the nature of things, it is ordinarily necessary for the good rule of society. But it can be handed over to various subjects according to the various form or regime of society. If it resides wholly in one, the regime is monarchical; if in an assembly of several nobles, the best or the powerful, it is aristocratic or oligarchical; if in the community itself or in an assembly chosen from every condition and designated by all, it is democratic; finally, if at the same time but partially it resides in several, it is a mixed regime, which flourishes in present-day nations: thus in Belgium it resides partially in a twofold assembly of elected persons who establish laws and in the king who can sanction or not sanction and promulgate laws (Belgian Constitution, art. 26).

n. 268.

Power exists fully in the supreme authority; from that it is sometimes derived restrictedly to certain subordinates, as happens in fiefs, confederated states, etc.

269. Power does not depend per se on faith, probity of life, good morals, nor therefore on sex, age, and other conditions of the subject in whom it resides.

This is clear a) from the Council of Constance, session 8, condemning proposition 15 of Wycliffe;

b) from Scripture, both from the words of Christ commanding tribute to be paid to a pagan prince (Mt. XXII, 21) and to obey the evil and wicked Pharisees (XXIII, 3), and from the words of the Apostles, who teach that unbelieving princes are ministers of God to whom one must obey in conscience (Rom. XIII, 5-7; Tit. III, 1; I Pet. II, 13-15);

c) by reason: man can command not because he is good, but because he is superior.