Promulgation

153. The notion and necessity of promulgation. 1. Promulgation is defined as the external proposal of the law, solemnly made by the legislator to the community.

a. Promulgation must be made by the legislator, because law must have from the legislator all those things which are required for fully constituting it. It must be solemn, or made by a public act at the command of the legislator (by the voice of a herald, by affixing in a public place), so that it may be certain to subjects that the law is promulgated.

b. The promulgation of a law differs from the dissemination of the same law, by which, once promulgation has already been made, it is spread among subjects in different places, so that it may come to the knowledge of all. It is clear that dissemination is not necessary for the validity of the law. It also differs from notice or knowledge of the law: for notice of a law not yet promulgated does not introduce obligation; but once promulgation has been made, the law obliges (in first act) even those who still are ignorant of the law. Therefore he who has private notice of a law not yet promulgated does not sin if he acts against the law; but he who acts against a law already promulgated sins materially, even if he is ignorant of it.

c. Bishops are bound to obtain for themselves the authentic text of a promulgated law and to communicate it to their subjects and, if there is need, to explain it.

2. Promulgation is necessary for a law to obtain the force of obliging: for law cannot oblige subjects unless the will of the legislator to oblige the subjects has been intimated to them; but it is intimated through promulgation; wherefore law before promulgation does not oblige.

Those who affirm that promulgation is not only a necessary condition for inducing the obligation of a law, but a constitutive element of the law itself, argue thus: law formally is a public rule of morals issued by the prince as he is a public person; but a rule is constituted public by publication; therefore law is formally constituted law by publication.

154. The manner of promulgation. By the law of nature that manner of promulgation is required and suffices by which subjects can know the law as promulgated by the prince. Since diverse modes exist for obtaining this end, it belongs to the legislator to choose that one which seems suitable to him for the end; but the mode chosen by the legislator must be considered entirely sufficient.

a. Now for several centuries the Roman pontiffs have considered that promulgation sufficient by which ecclesiastical laws are affixed in public places at Rome, nor is it necessary that they be promulgated in individual provinces or dioceses, unless in a particular case the legislator himself has established otherwise. But from the beginning of the year 1909, only those ecclesiastical laws, decrees, and acts of the holy see are judged duly promulgated which have been inserted in the official commentary Acta Apostolicae Sedis and published to the public.¹

By the will of the Council of Trent, the law concerning the clandestinity of marriages had to be promulgated in individual parishes in order to introduce obligation. Leo XIII willed that the constitution Romanos pontifices (8 May 1881) should not be obligatory except after promulgation made in England. Pius X willed that the decree Ne temere (2 August 1907) concerning betrothals and marriage should be promulgated through its transmission to ordinaries.

b. Episcopal laws are judged sufficiently promulgated if they are published in the episcopal city (because, for example, they are publicly read in the cathedral church or affixed to its doors), or if they are inserted in the diocesan paper.

c. The reason why several authors, and those not undistinguished, have thought that pontifical laws must be promulgated in individual provinces is this: Roman law establishes that new laws must be promulgated not only in the principal city, but also in individual provinces; but pontifical law has issued no particular statute concerning the manner of promulgation. Now from the canon commonly received in the doctrine of authors, where ecclesiastical law establishes nothing specifically about some matter, it is judged to accept the dispositions of Roman law. - But from the declaration of the Roman pontiffs this disposition of civil law is not to be accepted. Thus also both pontifical constitutions, Apostolicae sedis (12 October 1869) and Officiorum ac munerum (25 January 1897), by the will of the supreme pontiff obliged all the faithful after promulgation made at Rome,² and indeed by the explicit will of Pius X laws and decrees have the force of obliging by the fact that they have been published in the official commentary. From this doctrine it follows that the obligation of ecclesiastical laws cannot be impeded by the placetum regium, since their promulgation made at Rome suffices for them to obtain the force of obliging everywhere.

d. In fact, ecclesiastical laws promulgated at Rome are sometimes communicated, in order that knowledge of them may be disseminated, through the apostolic nuncio or through the archbishop to the bishops, by whom they are then made known throughout the diocese. To introduce obligation it is not necessary that bishops promulgate ecclesiastical laws, e.g. decrees and decisions of the Roman congregations, in their dioceses: for as soon as certain knowledge of some decree or decision, e.g. through trustworthy public journals, has come to us, we are obliged to observe it.

¹ Constitution Promulgandi, 29 September 1908.

² Cf. Ballerini-Palmieri I. Appendix. II. De promulgatione legis pontificiae.

155. When law begins to oblige. Once promulgation has been made, a law to which no term has been prefixed for the beginning of obligation obliges all to whom knowledge of it comes; but after a two-month period has elapsed, this knowledge is judged to have come to all: for, in the judgment of prudent men, in the space of two months a law duly promulgated can be known by all. But if a term has been prefixed to the law from which it begins to have the force of obliging, just as before that term it obliges no one, so after the term has elapsed everyone is presumed to know the law.

a. Not only the laws of inferior prelates, but also pontifical laws of themselves oblige all immediately after promulgation, unless something else has been established by the legislator himself. Nevertheless, during the two-month period after promulgation, before it has yet elapsed, as regards a penal and invalidating law, in the external forum at least outside the Roman curia an excuse of ignorance is more easily admitted; but once the two-month period has elapsed, knowledge of the law is presumed.¹

b. The probable opinion of St. Alphonsus is to be noted, by force of which pontifical (disciplinary) laws, during the two-month period after promulgation, before it has yet elapsed, oblige no one either in the external forum or in the internal forum, even if he has knowledge of the law. This opinion is strengthened by this argument: where a disposition of canon law is lacking, one must stand by Roman law; but in Roman law laws began to oblige two months after promulgation.² Wherefore it is lawful to wait for two months until the disciplinary decrees of the holy see are mandated for execution.

c. Nevertheless ecclesiastical laws which contain definitions of faith or declare divine law immediately oblige in conscience all who have received knowledge of the law in any way whatsoever: for laws of this kind, since they have already been promulgated, need, for inducing obligation, not promulgation, but knowledge alone.

¹ Cf. Wernz, I. n. 101.

² St. Alphonsus n. 96. q. 2.

156. On the acceptance of law.

A law is said to be accepted by the fact that it begins to be observed by subjects; a promulgated and known law which is not observed by subjects is said not to be accepted.

1. The acceptance of the people is not required for a law to obtain the force of obliging: for a superior has the power and will of obliging subjects independently of the acceptance of the people, nor could true legislative power consist in the prince, if the value of laws depended upon the acceptance of the people.

a. This is so true concerning civil law that the contrary proposition was condemned;¹ but to affirm the contrary concerning ecclesiastical law would even savor of heresy: for it is certain by faith that the supreme pontiff has received legislative power, and indeed one altogether independent of the people, immediately from Christ.

b. Nevertheless it can happen that somewhere a law issued is not received by right, namely if a contrary custom is in force there, which is not removed through a derogatory clause added to the law.

2. If a law duly promulgated is not observed, a contrary custom can arise immediately. In this case those who in the beginning transgress the law generally sin; but when the contrary custom has been legitimately prescribed, subjects who do not observe the law no longer sin. It is clear that the effect of this contrary custom is the same as if the law had not been accepted.

3. If some disciplinary law seems to the people too difficult or less suitable to the circumstances of things, an appeal can be made to the legislator; meanwhile, however, the obligation of the law is suspended from the presumed consent of the legislator. But if thereafter the legislator does not urge the obligation, he is judged to revoke it.

a. Wherefore bishops of themselves are bound to accept pontifical laws and to promulgate them to their subjects; yet if they have judged some law less suitable or even harmful to their diocese, they can and must set forth their reasons to the holy see; meanwhile the supreme pontiff is judged not to wish to oblige; afterward, however, obedience must be given to his definition. But if nevertheless the law certainly seems harmful to his diocese to the bishop, he is not bound to urge its observance.

b. The common opinion of canonists that a law not received does not oblige² admits a twofold true sense: a. a law not received does not oblige when it has been abrogated by legitimate custom; b. a law not received because of excessive difficulty does not oblige.

¹ "The people does not sin, even if without any cause it does not receive a law promulgated by the prince." Proposition 28 condemned by Alexander VII.

² In c. Treugas 1. De treuga et pace (I. 34).

I. Definition. Law is said: according to Tully (De legibus, bk. 1), from legendo, that is, from choosing, because among many things it chooses what must be done or omitted; according to St. Isidore (Etymologies, bk. 2, c. 10), from legendo, because it is usually written and therefore read; according to St. Thomas (I-II, q. 90, a. 1), from binding, because it binds or obliges; according to today's philologists, from a root common with the Greek verb legein, that is, to say. But law, with St. Thomas, is usually defined: "A certain ordinance of reason for the common good, promulgated by him who has care of the community" (I-II, q. 90, a. 4). It is said:

1. Ordinance, that is, a disposition or direction to an end through proportionate means.

2. Of reason; concerning this, observe: by the consent of all, both reason and will concur in constituting law; but it is disputed whether law or command is formally an act of reason or of will.

Some teach that it is formally an act of the will, although of a will ruled by reason, because it belongs to reason, even practical reason, only to judge. But the concept of judging excludes the concept of commanding or imposing something. Added to this is that the Sacred Scriptures continually speak of the divine will, never of the divine reason, as needing to be fulfilled. Others with St. Thomas (I-II, q. 90, a. 1; q. 14, a. 1) judge that law is formally an act of reason, "with an act of the will presupposed, however, in virtue of which reason moves through command to the exercise of the act" (St. Thomas, I-II, q. 17, a. 1). The reason brought forward by the defenders of this opinion can be proposed thus: to command belongs to that power to which it belongs to order; for to command is to order someone to perform something. For the one commanding intentionally joins the operation to be done with the practical intellect of the subject, in other words, he imposes the work to be done. But to order formally is an act of reason.

3. For the common good. For law is not ordered to the good of one or of a few, but to the good of the whole community, that is, of all who constitute the community. Nevertheless, this does not prevent a law from sometimes establishing something which directly yields to the good of the prince or of some persons, provided that good is ordered to the common good. Nor does it prohibit a law from being made for a determinate class of persons, for example for soldiers, because a law of this sort can regard the common good, or the good of the whole community (St. Thomas, I-II, q. 90, a. 2; St. Alphonsus, I, 140).

4. By him who has care of the community. For "law properly, first and principally, regards order to the common good. But to order something to the common good belongs either to the whole multitude, or to a public person who has care of the whole multitude; and therefore to establish law belongs either to the whole multitude or to a public person who has care of the whole multitude; because also in all other matters to order to an end belongs to him whose proper end it is" (St. Thomas, I-II, q. 90, a. 3).

5. Of the community. But a perfect community is understood primarily, that is, one which, with respect to its end and the means ordered to that end, is not directly subordinated to another community. Such are the community of the whole human race, the Church, and the civil State. An imperfect community is one which is directly subordinated to another community. Such are a diocese, a religious order, a parish, a municipality, and a family. But to what extent the governors of imperfect communities enjoy legislative power will be explained in n. 107.

6. Promulgated. Several things must be noted concerning promulgation.

a) Notion of promulgation. Promulgation is the authentic intimation of a law to the community as such; authentic, that is, made by the legislator himself or by another in the name of the legislator. It must be done by the legislator or in his name, because it belongs only to the governor of the community to apply law to the community.¹

Promulgation differs: 1. from the divulgation of law, by which, namely, the law is published in several places; 2. from knowledge of the law, by which the law is known in fact. Nevertheless, knowledge is required in order that someone be obliged here and now.

It is disputed whether promulgation pertains to the essence of law (cf. St. Thomas, I-II, q. 90, a. 4);² but the dispute is not practical, because promulgation is at least required in order that law may oblige. This we shall now explain.

b) Necessity of promulgation. Promulgation is necessary in order that a law enjoy the force of obliging. For law holds itself "by way of rule and measure; but rule and measure are imposed by the fact that they are applied to those things which are ruled and measured. Hence, in order that law obtain the force of obliging, which is proper to law, it must be applied to human beings," understand: to the community, "who ought to be ruled according to it" (St. Thomas, I-II, q. 90, a. 4; St. Alphonsus, I, 89). But it is applied to the community through promulgation. Hence one who knows from some other source that a law has been made is not bound to observe it before it has been promulgated (St. Alphonsus, l.c.). And in at least that sense it is declared: Laws are instituted when they are promulgated (can. 8, § 1).

c) Mode of promulgating a law.

a) Of itself, an act placed by the legislator or in his name suffices, from which, morally speaking, the law can come into the knowledge of the community. This is clear from the practice of legislators; likewise from the fact that pontifical laws are promulgated by the very fact that they are inserted into the official commentary (n. 91). Therefore an act is not required by which, morally speaking, the whole community immediately comes into knowledge of the law. It also does not matter which act of promulgating is chosen, provided such an act is employed from which knowledge can be diffused among the members of the community. Hence a law can be promulgated either by affixing it in a public place, or by announcing it by the voice of a herald, or by inserting it into public tablets, or by explicitly or tacitly signifying that a divulgation already made, for example through newspapers or periodicals, is to be held as promulgation.

b) How diverse laws have in fact been promulgated or are promulgated, see, with respect to the positive divine law, n. 80; with respect to ecclesiastical laws, n. 91; with respect to civil laws, n. 91.

Corollary. As soon as law has been promulgated, it obliges of itself all members of the community in first act, as it is said; as soon as, after promulgation, it is known to someone, it obliges him in second act or subjectively.

¹ In Holland, civil laws, adopted by the Assemblies of Deputies and sanctioned by the King, are promulgated by the King (Grondwet, art. 121).

² Cf. Billuart, De legibus, diss. 1, a. 3.

II. Positive divine law.

1. Notion. Positive divine law is positive law made by God. It has been promulgated through revelation. Moreover, this law, insofar as it regards the precepts of natural law, is morally necessary in the present condition of fallen nature, namely so that the said precepts may be known more fully, firmly, and without admixture of error.¹ But once the supernatural order has been posited, positive divine law is absolutely necessary with respect to the precepts of that order, because without it the obligations annexed to the said order cannot be known in any way (St. Thomas, I-II, q. 91, a. 4).

2. Division. Positive divine law is distinguished into primeval, Mosaic, and Christian law.

a) Primeval law is little known to us. It embraces the time which flowed from Adam until the Mosaic law was given; it is usually called the time of the law of nature.

b) Mosaic law, also called the old law, is the law made by God for the Israelite people and promulgated through Moses. I have said: made by God, as is clear from Sacred Scripture.² I have said: for the Israelite people, that is, for the people whom God led out of Egypt, and for their descendants. Therefore the gentiles were not bound by the Mosaic law, except insofar as it was natural. I have said: promulgated through Moses, as Sacred Scripture likewise testifies.³

a) The precepts of the Mosaic law were threefold: moral, ceremonial, and judicial. The notion of these can be gathered sufficiently from the terms themselves.

b) The special end of the said precepts was threefold: to preserve from universal corruption the people from whom the Messiah was going to arise; to join families and individuals more closely with God by ceremonial precepts and prepare them for the coming of the Messiah; finally, to give honorable security of temporal life, abundance of goods, and health of body.

c) The Mosaic law ceased from the death of Christ, or at least from the day of Pentecost, on which the Christian law began to be in full force. Namely, ceremonial and judicial laws are dead, as it is said. Moral laws, although they no longer bind as Mosaic laws, nevertheless bind as natural laws, with the indults of the Old Law also removed. Furthermore, the ceremonial laws are not only dead, but have even become deadly, that is, bringing spiritual death (St. Thomas, I-II, q. 103, a. 4), namely insofar as one would sin who observed them either as having force from the Mosaic law, or with the intention of worshiping God through faith in the Messiah who was to come. But one who observed it with the intention indeed of worshiping God, although not in a prefigurative sense, would place a worship alien from that which God prescribed by himself or through his Church.⁴

c) Christian law, which is also called new, is the law made by Christ for the whole world. Christ promulgated his law by his own mouth, while the Apostles and their successors divulged it and continually divulge it. Moreover, to the Christian law also belong the laws which the Apostles received from the Holy Spirit and promulgated.⁵ The former are called dominical laws, the latter divine-apostolic. There are added the evangelical counsels, namely of poverty, chastity, and obedience, which together with the precepts constitute divine law, which now cannot be removed or changed. Besides, observe:

a) The precepts of the New Law are distinguished into: 1. moral precepts, by which natural law is confirmed; 2. ceremonial precepts, which regard the sacraments and the Sacrifice of the Mass; 3. precepts of faith, whose mysteries Christ explained, increased, and imposed as to be believed.

b) The New Law, as it seems, began to be in full force, or at least to oblige all in first act, from the time at which the Mosaic law ceased, that is, from the death of Christ, or at least from the day of Pentecost.

¹ Vatican Council, constitution Dei Filius, c. II.

² Exod. 19:5-8; 31:18; Lev. 1:1 sq.; Matt. 15:3 sq.

³ Acts 7:53.

⁴ Sweens, Theologia moralis fundamentalis, n. 311.

⁵ Laws which the Apostles made by their own authority are human laws, namely ecclesiastical laws.

III. Positive ecclesiastical law is law made and promulgated by ecclesiastical authority. Now laws made by the Apostolic See are promulgated by publication in the official commentary of the Acta Apostolicae Sedis, unless in particular cases another mode of promulgating has been prescribed (can. 9). Hence the opinion of those who judged that pontifical laws had to be promulgated in individual dioceses in order that they have the force of obliging there must now be altogether rejected. Laws of Ordinaries are usually inserted, and thus promulgated, in the diocesan bulletin.

IV. Positive civil law is law made and promulgated by civil authority. Civil laws are promulgated almost everywhere by the fact that they are inserted in an authentic collection of laws.¹

Note. Law, and especially a collection of laws, is often called ius. Taken in this way, it is usually divided into natural law, the law of nations, ecclesiastical law, and civil law. Concerning the three latter, certain things are to be noted in scholia.

¹ This also has place among us (Wet houdende algemeene bepalingen, art. 2).

Promulgation.—Church laws are promulgated as follows: (a) the laws of the Holy See are promulgated by publication in the official periodical, Acta Apostolicae Sedis. They become effective three months from the date of publication, unless from the nature of the case they oblige at once, or it is otherwise provided in the law itself (Canon 9); (b) the laws of a bishop are promulgated in the manner he decides, generally by publication in the official periodical of the diocese. They become effective as soon as published, unless it is otherwise provided in the law itself (Canon 335, Sec. 2).

When a law has been promulgated and become known, if it begins to be observed, it is said to be accepted; if it is not observed, it is said to be not accepted. This acceptance is not essential to law. Hence: (a) the observance of a law by the people is not necessary for the obligatory force of the law, for otherwise the lawgiver would be without real authority; (b) the approval of ecclesiastical laws by the State is not necessary for their validity, since Church and State are distinct and independent societies within the proper sphere of each.

A law that has been promulgated may fail to obtain force in the following ways: (a) through contrary custom, already existing and not excluded by the law, or then arising to abrogate the law (see 391 Sqq.); (b) through appeal entered with the lawgiver. Thus, if a bishop deems a law of the Pope unsuited to his diocese, he explains the reasons to the Holy See, and pending the answer it is considered that the lawgiver does not wish the law to oblige.

1. A bishop, in a diocesan synod, reserved to himself for the future some sins and some censures. After the bishop had died, the chapter, the see being vacant, ordered this reservation of cases to be printed, so that it might come to the knowledge of all confessors. It placed this title on the folio, edited and printed: Cases and Censures in the Synod of N. Diocese, held in the year 1637. It was doubted whether that reservation had sufficient force.

Q. 1. What is law? 2. What as to the case?

R. To the first, cf. I. M. 166 seqq. To the second: Cardinal De Lugo, Resp. Mor., l. 1, d. 21, thus resolved this case: "I inclined more to the opinion denying the value of that reservation.... I am moved..., namely because the chapter did not seem to use its own authority for promulgating that reservation and inducing its obligation. For it did not signify that it reserved the absolution of those cases, nor did it say that it supplied the authority which, the bishop having died before promulgation, he did not have; but it only caused those cases to be printed as having been reserved by the bishop in diocesan synod, the proper authority of the chapter, the see being vacant, not being interposed, but only the diocesan synod with the bishop being commemorated. Therefore, since the authority of the bishop had already expired, the obligation of law could not begin when the legislator can no longer command and oblige. For I suppose that before promulgation a law is not a law, except inchoatively; nor is promulgation merely a condition or application of a law already preexisting, but rather it is a constitutive part of the law itself in the character of law.... And whatever may be the case concerning this, nevertheless it must be admitted that promulgation, required for the obligation of law, is not promulgation through private knowledge which individual subjects may have about a law already made, even if the greater part of the subjects had that knowledge; but it ought to be public knowledge, that is, arising from a solemn act by which, at the command of the Legislator, the law is published, as the doctors commonly note. But the reason from what has been said is that the act of commanding, such as law is, includes a speech by which the Prince or Legislator commands and manifests his will to the subjects, which happens when the law is promulgated. But promulgation cannot be the speech of the Prince except by command and authority of the Prince. Therefore, since the dead bishop can no longer speak to the subjects, or command, it follows that promulgation made by the chapter alone cannot be made in the name of the bishop, nor receive authority from the same bishop; therefore that promulgation is not sufficient for inducing obligation, since through that promulgation no superior speaks and commands. Nor does the dead bishop, who now can neither speak nor command. Nor does the chapter, which, although it could command, nevertheless does not signify that it commands, nor interposes its own authority, but that of the bishop alone, now dead. Therefore the promulgation required for obliging was lacking, namely promulgation made by the Superior himself, commanding through that same promulgation."

2. "Caius, a counselor of great name and no less wealthy, had understood that in the last assembly it had been decreed that the value both of ducats and of grain would be diminished, while on the contrary the value of another certain silver coin would be raised. Wherefore, thinking that he should use the opportunity of time and of this private knowledge, one or two days before the aforesaid Constitution was solemnly promulgated, he asked from a certain Jew a notable sum of that species of silver coin, in place of which he gave him ducats and grain. After some days, the promulgation of the aforesaid Constitution having already been made, he came to the confessor, having ingenuously confessed that he had notably deceived a certain Jew, and asked to know whether on account of this he had sinned, or had incurred an obligation of restoring."

Q. 1. Is promulgation of a law necessary for its obligation? 2. What will the confessor answer to Caius asking?

R. To the first, affirmatively. For promulgation is the act by which a law is exhibited and shown to the subjects. Whence it is also clear that, although promulgation is necessary for the obligation of the law, it nevertheless does not pertain to its essence. For the essence of law consists in this, that it is a rule of morals; and promulgation is not regulating, but only showing the rule. Cf. I. M. 166, 167.

To the second: "Caius, by force of this deed, at least speaking in itself, did not sin, nor did he contract any obligation of restoring.... The reason is that, since, at the time of this exchange made, the ducats and grain were truly in their former value, it is certainly clear that Caius, by giving gold and grain for silver, repaid an equivalent. Granted even that he is supposed to have known that the grain would at once be of lesser value after the promulgation, nevertheless because this promulgation had not yet happened, nor was Caius otherwise obliged to intimate it to the Jew, hence he inflicted on him no injury at all, but wisely used his right in order to avoid the damage which he foresaw was threatening him from retention of the ducats and grain.

"Nevertheless I said that Caius, in this deed, speaking in itself, did not sin. For from the manner of accusing, he seems to have insinuated quite clearly that at least from erroneous conscience he sinned gravely: for deception of one's neighbor in grave matter is not free from grave fault. Therefore since Caius thought that he was deceiving, indeed willed gravely to deceive, the Jew, it seems practically certain that he sinned gravely, although he is no longer held to rescind the contract, nor to restore anything to the Jew, because, according to what was just said, the contract was truly just." Elbel 257, 258; G. 89, 90. Cf. I. M. 1147.

3. Epipodius the theologian and Thiphonius the canonist, conferring with each other, sharply dispute about the promulgation of pontifical law. The former contends that it is enough if its promulgation is made at Rome, or in the principal city of the whole world, so that it has force for obliging all the faithful. But the latter contends that promulgation must be made in the individual dioceses, to manifest knowledge of it to all of them. For Rome is very distant from the greater part of the dioceses of the whole world.

Q. 1. How and where must laws be promulgated? 2. In order that pontifical laws oblige, must they be promulgated not only at Rome, but also in each diocese by its own bishop?

R. To the first, cf. I. M. 168, 169. To the second: first, negatively, if it is a question of Pontifical Constitutions concerning a matter of faith and morals. The reason is that they are not new laws, but mere declarations of natural and divine law, already sufficiently promulgated before.

Secondly, affirmatively, if it is a question of disciplinary laws, and promulgation of this sort is established in the law itself, as in the Tridentine Decree, session 24, ch. 1, De Ref., concerning the nullity of clandestine marriage. The reason is that the mode of promulgation depends altogether on the will of the legislator.

Thirdly, if it is a question of the same laws, and nothing is had in the law concerning a special promulgation to be made, "the first opinion affirms, and several grave authors hold this.... But still, according to this first opinion, Bulls inserted in the Bullarium must be excepted, because these are already the Body of laws; and in this all agree, as Cardinal Petra testifies.... But the second opinion, very common and more probable, denies it.... When the Apostolic See wishes some law not to oblige except after publication made in the provinces, it expresses this.... When the Pontiff establishes that his Bulls be published only at Rome, it is by no means likely that he intends to oblige not the other provinces, but only the Roman province. When the Pope wishes to bind only Romans, he is accustomed to issue particular Edicts.... But making statutes for the whole Church, and promulgating them solemnly with obligatory clauses, he is without doubt presumed to wish to oblige all the faithful as soon as knowledge has reached them.... This is clearly deduced from c. 1, Ad haec de Postulat. Praelat..... The same is sufficiently inferred from c. Quia cunctis 1, § Nec obstaret, De Concess. praeb. in the Sixth.... But what gives more force to our opinion are two clauses.... One clause speaks thus: 'But in order that the present letters may more easily come to the knowledge of all, and that no one may be able to allege ignorance of them, we will that they be affixed to the doors, etc., and published, and that, thus published, they bind and affect all and each whom they concern, just as if they had been personally intimated to each one of them.' The other says: 'But we will that to transumpts of the present letters, even printed ones, subscribed by the hand of some public Notary, and fortified by the seal of a person constituted in ecclesiastical dignity, the very same observance everywhere be applied, both in judgment and outside it, as if they had been exhibited or shown to each one.' But these clauses show too plainly that the mind of the Pontiff is to wish to bind all the faithful to statutes of this sort independently of their publication in individual Provinces. And Sylvius and Roncaglia, although they admit the first opinion as probable, nevertheless hold as certain that all Bulls promulgated at Rome with the aforesaid clauses oblige in themselves without another promulgation. Moreover, Roncaglia rightly says that from the reported words of such clauses a firm argument can be adduced for the probability of the first opinion with respect to those Bulls where the aforesaid clauses are lacking: for nothing in laws is to be supposed placed in vain, and those clauses would be altogether superfluous if all Bulls, published at Rome even without such clauses, obliged before any other publication in the Provinces.... Furthermore Suarez and others probably say that pontifical laws which invalidate some contract valid by its own nature... or which take away jurisdiction, for example, in the sacrament of penance, concerning these we can benignly interpret the mind of the Pontiff to be that he does not wish them to have effect unless after they have been promulgated in the dioceses; otherwise they would redound to the detriment of many, who would be invincibly ignorant of them." Lig. l. 1, n. 96.

This latter opinion seems altogether truer from the fact that a response was given by the Sacred Penitentiary, 8 November 1821, that the Constitution Ecclesiae of Pius VII, and on 15 June 1870, the Constitution Apostolicae Sedis of Pius IX, oblige on the day after its publication made at Rome. It is confirmed from the very recent Constitution Officiorum of Leo XIII concerning the prohibition and censure of books, which the Supreme Pontiff wills to be inviolably observed by all, and which indeed is to be observed by all after the promulgation already made at Rome.

Fourthly: "Not only Pontifical Constitutions which have been solemnly promulgated induce the obligation of law, but also all others which, from the use and consent of the universal Church, for several centuries now are held as sufficiently promulgated and authentic." St. Alphonsus l. 1, n. 105, 106; Struggl. tr. 3, q. 1, n. 21, 22.

Fifthly: "It is special in censures that, for their obligation, it is required that they be published not only at Rome, but also through the prelates of places. C. Cum infirmitas 13, De Poenit. et Remiss." Thus Engel, l. 5, tr. 39, n. 122. But the disposition which is contained in the aforesaid chapter can be held as a special disposition for a special matter. For it is a question of physicians called to the sick, who must before all things induce the sick person to confession. Moreover in the Constitution of Pius XI, Apostolicae Sedis, IV Id. Oct. 1869, by which censures latae sententiae presently in force are established, this special disposition is not had, and that Constitution is in force everywhere. - G. 92 seqq.; Elbel 254, 256.

4. Flavius, a cleric, on account of grave negligence committed in the care of souls, having been denounced to his Ordinary and found culpable, was condemned to perform spiritual exercises for eight days in a certain monastery, and to give fifty lire to the same monastery by way of alms. This latter Flavius in no way performed. As for the former, during that entire eight days, he did not make even one meditation, saying that mental prayer is a merely internal act, which cannot be commanded by a human superior. Hence he neglected all the other spiritual exercises, content only to dwell in the monastery for eight days, which he spent reading profane books and newspapers.

Q. 1. Can merely internal acts be the object of law and precept? 2. What concerning Flavius?

R. To the first, cf. I. M. 117. To the second: the bishop altogether legitimately condemned Flavius to the aforesaid penance, the proportionate gravity of the fault being supposed. For although the bishop in words, in his sentence or mandate, did not express that he wished to oblige Flavius gravely, nevertheless by the fact he must be judged sufficiently to have expressed it, from this, that any superior, speaking regularly, must be presumed to have wished to oblige according to the capacity of the matter. Hence, Flavius, by omitting to give to the monastery the alms of fifty lire, sinned gravely; because when matter commanded by a superior is divisible into several parts, and those parts in themselves constitute grave matter, the neglect of any part is grave sin. - But besides, Flavius sinned gravely because of the omitted spiritual exercises, which also themselves constitute grave matter. Nor indeed does the reason of Flavius avail anything in the case; because spiritual exercises do not consist in merely internal acts, or in mental prayer alone, but in several acts at once internal and external: in withdrawal from all secular business and profane actions; in pious readings; in conferences with the spiritual Father, or confessor, or director of the exercises; in due preparation for meditation, after first hearing or reading over the various points of meditations; in meditations and examinations of conscience, on bent knees at least for some space of time; in vocal recitation of prayers; in visits to the Most Holy Sacrament, etc. All these, as is clear, are mixed acts, which without doubt can be commanded by human authority. - Elbel 339-341; G. 95, 96; Lugo, Resp. Mor., l. 6, d. 7.

Promulgation is the publication of a law, made by legitimate authority for inducing obligation upon subjects.

96. Principles. - I. Public promulgation of a law is necessary so that it may oblige, nor does private knowledge of it suffice, because thus the precept has not been sufficiently proposed and manifested to the community. - St. Lig., no. 95.

II. Promulgation suffices without knowledge of the law for obliging in the external forum, because knowledge of a duly promulgated law is generally presumed. But in the internal forum, knowledge of the law is required besides, because no one can sin without cognition of the obligation, according to what was said in the Treatise on Human Acts, no. 4 and following.

III. From the nature of the thing it suffices that the law be promulgated in some principal city, or in such a place whence it can come to the knowledge of the community, and it obliges immediately when it has been promulgated. Attend nevertheless to received custom, or to the particular statutes of various places.

97. Questions. - QUESTION 1. Whether a doubtfully promulgated law obliges?

I answer. No, because it is not sufficiently manifested and intimated, and therefore is doubtful; but a doubtful law does not oblige. - St. Lig., no. 97.

QUESTION 2. Whether pontifical laws oblige as soon as they are promulgated?

I answer affirmatively. For a promulgated law by that very fact immediately has force, and obliges even, as they say, in second act, all those who know it.

QUESTION 3. Whether it suffices that episcopal laws be promulgated in the episcopal city, and papal laws at Rome?

I answer affirmatively, because this suffices so that they can be manifested to the Christian people. Besides, the mode of promulgation is in the power of the legislator. - Moreover in practice Bishops wish to oblige through promulgation made in the episcopal city, and Pontiffs through that which is made at Rome ¹.

¹ The opinion which for pontifical laws requires promulgation in the individual provinces and the lapse of two months before they have force of obliging rests only on a certain confused heap of false allegations, which can be seen heaped up in Reiffenstuel (book 1, title 2, § 5, no. 125) and Suarez (On Laws, book 4, ch. 15, no. 1), and which others then borrowed and attributed some extrinsic probability to this opinion. And indeed very many, almost all, who are usually alleged, both the old Canonists and later Theologians, attributed force of obliging to pontifical Constitutions in such a way that immediately from the promulgation made in the Roman curia, all who knew it were held to observe it; but the dispute concerning promulgation, or better, concerning publication in the provinces, and also concerning the lapse of a certain time, looked only to this, that it might be defined when violators of the law could allege probable ignorance of the law in judgments in order to avoid punishment.

** Against the last little part of this note, which is referred to the preceding Question 2, VV. object the text brought by St. Alphonsus from ch. 1, On the Concession of Prebends, in VI: Law or Constitution and mandate bind no one, unless after they have come to the knowledge of the same persons, or unless after the time within which they ought by no means to have been ignorant. And hence they wish to conclude that laws do not oblige even in conscience except after two months from promulgation.

But the text brought forward, just as it refutes the conclusion of VV., so it confirms the doctrine of the Author. For a twofold limitation or exception is seen in it. The first is generally of those to whose knowledge the law has come. But this would badly be affirmed if the law obligated only after two months, since it can easily come to the knowledge of many before two months have elapsed. The other exception is of those who violate the law after those two months, and therefore are not excused. Moreover this also would be falsely affirmed generally concerning guilt in conscience; since even after two months some can inculpably be ignorant of the law.

As to the Council of Trent, it is certain that its decrees pertaining to faith and morals oblige even in those places where they have not been specially promulgated; likewise that the decree concerning clandestine marriages does not oblige except in parishes where promulgation preceded. As to the other decrees which regard reform, the sentence asserting that they oblige everywhere is to be preferred, since they have been duly promulgated at Rome. - Scavini and Analecta Iuris Pontificii, series II, col. 2308. - And Cases, no. 89 and following.

266. I. Necessity and mode. Law does not obtain the force of obliging unless it has been intimated, or promulgated, to the subjects. For promulgation is the act by which the legislator authentically intimates his law to the community, or makes it known, with the will of obliging clearly manifested; and this he can accomplish either by himself or through another. The necessity of this promulgation is acknowledged in Canon Law:¹ "This alone suffices, that he be held to the observance of it [the law], who has known that it has been solemnly issued or publicly promulgated." And deservedly, for law cannot direct or bind the will unless it is first known.

¹ Decretal., l. I, tit. 5, De postulat., c. 1, Ad haec.

From the nature of the thing, that promulgation is required and suffices by which the law, considering all the adjuncts of times, places, and persons, can morally and in a human manner reach the knowledge of the subjects; once this is posited, the mode of promulgating the law is left to the judgment of the legislator.

267. II. Specifically concerning Pontifical laws. 1. The mode of promulgating laws used by the Pontiffs was not always the same.² (a) During the first twelve centuries, they promulgated their constitutions by sending them into the provinces, through clerics of most approved fidelity, either to individual bishops, or to metropolitans or patriarchs, who would take care that the same were transmitted to the bishops. (b) At the beginning of the thirteenth century, they began to promulgate authentic collections of canon law, sending them with a Bull to the more celebrated academies; thus Innocent III, in the year 1210, promulgated the collection of his decretals by letters directed to the University of Bologna. (c) In the course of the same century, they ordered certain Bulls to be promulgated by affixing them in the place of their residence, especially at Rome, with this clause, that such promulgation would suffice for the law to obtain its whole force: thus Martin IV, in the year 1281, issued a Bull against Michael Palaeologus.³

² Zaccaria, De varia Ecclesiae, praesertim Latinae, in promulg. sacrar. constitut. disciplina; Bouix, De princ. juris can., Parisiis, 2nd ed., 1852, p. 248 sq.

³ Bull. Rom., ed. Cocquelines, t. III, P. 2, p. 30.

268. 2. But afterward they promulgated their decrees in various ways: (a) Constitutions or Apostolic Letters, when they contained a law for the whole world, were promulgated by affixing them at Rome, in one or more of these places: at the doors of the Lateran church, of the basilica of St. Peter in the Vatican, of the Apostolic Chancery, - or in the area of Campo de' Fiori. (b) They promulgated Encyclicals by sending them, according to the ancient custom, to individual bishops, or to metropolitans or apostolic nuncios. (c) Indeed, it had almost come into custom that the acts of the Holy See and its decrees, when published by legitimate authority in the secretarial Office by which they had been issued, were held by that very fact to have been promulgated.

3. But Pius X decreed¹ that an official Commentary should be published (Acta Apostolicae Sedis), in which he willed that pontifical constitutions, laws, decrees, and other decisions both of the Roman Pontiffs and of the sacred Congregations and Offices be inserted, and thus promulgated, whenever there is need of promulgation, and no provision has otherwise been made by the Holy See.

¹ Const. Promulgandi, 29 Sept. 1908, A. A. S., I, p. 5.

Therefore the opinion of those who formerly thought that promulgation in provinces and dioceses was required for the force of pontifical laws is to be rejected; for this is in no way required from the very nature of the thing, and moreover the legislator has several times declared that the promulgation which is made at Rome suffices.

269. But today, according to the Code, can. 9, "laws are promulgated by the Apostolic See through publication in the official commentary of the Acta Apostolicae Sedis, unless in particular cases another mode of promulgating has been prescribed; and they exercise their force only after three months have been completed from the day which is affixed to the number of the Acta, unless from the nature of the thing they bind at once, or in the law itself a shorter or longer vacancy has been specially and expressly established."

Thus an end is imposed upon the controversy formerly agitated concerning the time at which a law begins to oblige. Some said that it obliges at once, namely on the day after promulgation;² but others gradually, namely from the time at which each person has known it;³ and others, finally, only after two months from the day of promulgation.

² D'Annibale, Summula, t. I, n. 202, note 21, 23.

³ Suarez, lib. III, c. 17, n. 6, and lib. IV, c. 15, n. 9 sq.

270. III. Concerning the promulgation of episcopal laws. According to the recent Code, can. 335, § 2, the matter is left to the reasonable judgment of the bishop. Thus they are sufficiently promulgated if they are publicly read in the cathedral church, or signified by the voice of a herald in the square of the city, - or, having been written, are affixed in a public place designated for this, for example at the doors of the cathedral church, - or are committed to type in the diocesan sheet. - Indeed, if the law regards only the clergy, it needs no other publication except that which is made in the synod itself, at which the principal part of the clergy is present.⁴

⁴ Benedict XIV, De synodo, lib. XIII, c. 4, n. 1.

An episcopal law obliges at once once it has been promulgated, unless otherwise declared; for common law establishes no delay for the obligation of particular laws.

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

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

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

⁸⁸ n. 143 note.

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

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

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

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

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

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

⁹² Cod. iur. can. c. 335, § 2.

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

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

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

⁹⁴ De syn. dioec. l. 9, c. 8, n. 3.

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

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

St. Alphonsus, I, 96 ff.; ed. G., I, p. 72; H. Ap., II, n. 4; Bouix, de princ. Jur. can., p. 2, s. 2, c. 6; Bouquillon, Theol. fund., n. 19; Berardi, Theol. mor., I, 28.

156. Law, in order that it obtain its force, must not only concern apt matter, but must also be denounced to those by whom it is to be observed; for as long as it lies hidden, it cannot be fulfilled. But it is manifested through promulgation, to which sometimes, as a complement required per accidens, acceptance on the part of subjects must be added.

157. DEFINITION. Promulgation is the public denunciation of a law made by legitimate authority to a community.

It is called 1. public, that is, with some solemnity; 2. made to the community; because law of itself regards only the community, and not particular persons as such, but only as parts of the community. Hence it differs from divulgation, by which namely the knowledge of a law already promulgated comes to several or all subjects.

158. PRINCIPLES. I. Promulgation is absolutely necessary so that law may acquire the force of obliging. This is evident from the Body of Law itself (Can. In istis, D. 4), where it is read that "laws are instituted when they are promulgated." For law is a rule imposed on a community (cf. n. 109).

Hence it is inferred: 1. If someone knew that some law had been established, he would not be bound to observe it unless after it had been promulgated.

2. A doubtfully promulgated law does not oblige, unless it has already been received by use. Recall what was said n. 46.

3. He who invincibly does not know the promulgation made of a law is excused from fault before God by defect of knowledge; but not by defect of law, which, as promulgated, has the force of obliging. It is otherwise in the external forum, because knowledge of law, at least after some time, is presumed to have been divulged of itself; and therefore the burden of proving invincible ignorance lies upon him who brings forward the excuse of invincible ignorance (H. Ap., II, 22). And in this way the rule of law is to be understood: Ignorance of fact, not of right, excuses (V, n. 4).

159. II. The mode of promulgating laws is various in various regions, and depends on the judgment of the legislator, whether it is made through a herald, or by public affixing, or in any other way whatever. The reason is that no mode is determined by natural right; and, from the nature of the thing, that mode suffices by which knowledge of the law comes to at least the greater part of the community (I, n. 96).

Hence: 1. Episcopal laws (Benedict XIV, de Syn., l. 13, c. 4, n. 1) oblige immediately from promulgation, and promulgation in the episcopal city (or in synod for the clergy) suffices, unless otherwise established by the bishop. 2. Civil laws oblige after promulgation has been made according to the custom of the provinces.

160. Pontifical laws. IT IS ASKED 1. What is the mode of promulgation of pontifical laws?

Resp. Distinguish. 1. If the matter concerns laws, or Constitutions, in the matter of faith and morals, it is certain that these do not need public denunciation: as soon as they become known, they oblige everywhere; because they contain nothing new, but are mere declarations of natural and divine right already promulgated.

2. If the matter concerns disciplinary laws, formerly there were distinguished laws which expressly required promulgation in the provinces, laws which were promulgated at Rome with the usual clauses and affixing in certain places, and laws which were published without clauses. But in the present discipline, namely from the year 1909, one ordinary mode alone is admitted (a special determination being excluded) of promulgating any pontifical laws whatever, from the Constitution Promulgandi of our Most Holy Lord Pope Pius X, given on September 29, 1908; and this mode is the insertion of the law or decree in the official Commentary which is entitled Acta Apostolicae Sedis.

These are the words of the Constitution: "But we will that Pontifical Constitutions, laws, decrees, and other decisions both of the Roman Pontiffs and of the Sacred Congregations and Offices, inserted in that Commentary by mandate of the Prelate from the secretaries or of the higher minister of that Congregation or Office from which they emanate, and published to the people, by this one and unique method be held as legitimately promulgated, whenever promulgation is needed, nor has it otherwise been provided by the Holy See" (A. A. S., I, p. 6).

IT IS ASKED 2. Whether pontifical laws oblige as soon as they are promulgated?

Resp. 1. If the time from which their observance urges is determined by the legislator himself, they by no means oblige before the established term.

Thus Pius IV for the decrees of Trent, Pius X for the obligation of the decree Ne Temere, for the introduction of the new Psalter, etc., established a special time.

Resp. 2. If the time is not determined, according to St. Alphonsus, pontifical laws do not oblige before two months, according to the norm of Roman law.

The reasons are: both because such a space of time even now seems required so that knowledge of the law can morally and in a certain way come to all regions, even distant ones; and especially because within that space no other is determined absolutely by authors (I, n. 96; ed. G., I, p. 75).

These things St. Alphonsus says. Benedict XIV (de Syn., l. 13, c. 4, n. 2), with the common opinion, defends the other opinion: namely that pontifical laws oblige immediately after promulgation. But that the opinion which seemed more probable to St. Alphonsus now, after the publication of the official Commentary, remains probable, we would no longer dare to affirm. It is certain that the Holy See rejected as invalid the vows of those who had professed after the promulgation of the decree Ecclesia Christi, with no mention made whether the profession had been made after two months (A. A. S., II [1910], p. 36).

161. Note. Although with the promulgation of law properly so called there cannot be confused the means employed for the divulgation of the same law, such as insertion in the Bullarium, communication made by Bishops, the report of a person worthy of faith, and other similar things; nevertheless it must be admitted that solemn promulgation can sometimes be supplied by equivalent promulgation, which is had by fact, namely by use and the report of authors. On this matter St. Alphonsus notes (I, n. 106): "Not only pontifical Constitutions which have been solemnly promulgated induce the obligation of law; but also others which, from the use and consent of the universal Church, already for several centuries, are held as sufficiently promulgated and authentic."

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

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

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

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

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

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

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

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

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

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

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

Promulgation is the publication of a law, made by legitimate authority, for inducing obligation in subjects.

118. Principles. - I. The public promulgation of a law is necessary that it may oblige. It follows from the definition (n. 97), and the Angelic Doctor¹ proves it from this: that law, as a rule and measure, can be applied to subjects to be ruled by it through promulgation alone (n. 100, 6°). Wherefore, although someone knew that a law had already been established and was soon to be promulgated, nevertheless he would not be held to fulfill it before it had been promulgated; for "laws are instituted when they are promulgated."²

II. Promulgation suffices, nor is either the dissemination of the law or knowledge of it required for the value of the law; for if it were otherwise, scarcely any human law endowed with the force of obliging would be had, since there are almost always some to whom knowledge by no means comes, except after a very long time from its promulgation. Wherefore those who invincibly do not know the promulgation of the law are excused from fault by defect of the voluntary (n. 11), but not from defect of the law, which, as promulgated, possesses the force of obliging. But in the external forum the knowledge of a law duly promulgated is generally presumed, both as to the penalties established for its violators and as to the validity or nullity of contracts.

III. From the nature of the thing it suffices that the law be promulgated in some principal city, or in such a place from which it can come to the knowledge of the community, and it obliges immediately once it has been promulgated.

I said: from the nature of the thing; for it is free to the legislator to determine special things both as to the place or places in which it must be promulgated so that it oblige, and as to the time which must elapse after promulgation before it obliges. Hence:

119. • Quaer. 1° Does it suffice that episcopal laws be promulgated in the episcopal city? - And papal laws at Rome?

Resp. Affirmatively, unless either the Pontiff or the Bishop signifies otherwise, or it is a question of those Pontifical laws which invalidate a contract which by its own nature, that is, unless it were invalidated by legitimate power, would be valid, or which take away jurisdiction, for example, by reservation of cases. The reason is that this suffices so that they can become known to the Christian people. Besides, the mode of promulgation is in the power of the legislator. - Moreover, in practice Bishops will to oblige through promulgation made in the episcopal city, or, if it is a question of laws which regard the clergy alone, in the synod itself;¹ and Pontiffs through that promulgation which is made at Rome. For otherwise the Supreme Pontiffs would in vain place in their Constitutions the clause by which they declare that they intend them, "thus published, to be held by all whom they concern just as if they had been personally made known or exhibited to each one of them."² Consonant is the declaration of the Sacred Penitentiary given on Nov. 8, 1821, to the Archbishop of Naples concerning the Bull Ecclesiam of Pius VII against clandestine societies, which sounds thus: "To II. Through the promulgation of the Constitution, which happened at Rome on the Ides of September, it obtained the dignity of law and the force of obliging."

I said: or it is a question of those, etc.; and this on account of inconveniences otherwise going to follow, which the Pontiff must not be presumed to have willed.

120. • Quaer. 2° Do Pontifical laws oblige as soon as they have been promulgated?

Resp. Unless the Pontiff has determined otherwise, only so much space of time is required as suffices that knowledge of the law morally come to all, that is, two months. Thus St. Alphonsus⁴ against others.

121. • Quaer. 3° When do our civil laws begin to oblige?

Resp. Kent:⁵ "A statute is to operate from the very day it passes, if the law itself does not establish the time."

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

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

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

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

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

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

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

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

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

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

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

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

Quaer. 4° Can Bishops not admit Pontifical laws?

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

St. Thomas, I-II, q. 90, a. 4.

226. Promulgation (afkondiging) is a public and authentic testimony concerning the existence of a law and its announcement (bekendmaking) made to the community. It is called:

1. authentic, that is, made solemnly or with a certain solemnity by legitimate authority, namely, by the legislator himself or his authentic mandate, so that from the solemnity it appears and cannot be doubted that the law has proceeded from him in whom the power of the society resides;

2. public, that is, so carried out that the law is seen to be directed to the knowledge of the community and that the community can easily come to knowledge of it.

227. Promulgation is necessary in order that law obligate. - For a rule, in order to direct and bind someone, must be applied and imposed upon him, which does not happen unless it becomes known to him (n. 203). But law is not a rule made for one or another person, but borne for a community. Therefore in order that it obligate, it must become known to the community. But it cannot become known to the community except from promulgation, by which it is proposed in a public mode and one proportioned to the community. Therefore law does not obligate unless it is promulgated. Otherwise law would be only in the superior regulating, but not in the subjects regulated.

Hence a) until it has been promulgated, one who would know from elsewhere that it had been established is not held by the law;

b) a doubtfully promulgated law does not obligate: for liberty is not bound except by promulgation certainly proved; in a case of doubt, namely, the doubt is sufficiently promulgated: whether there is a law; but the law itself is not sufficiently promulgated: that it is a law;

c) promulgation differs from the divulgation of law, which sometimes is called, and is as it were, promulgation "in second act," by which the law in fact comes to the knowledge of subjects. Promulgation is necessary so that law can be divulged: from the former objective obligation arises and in the external forum; but knowledge of the law is also necessary so that subjective obligation be present and in the forum of conscience: for no one can sin by violating an obligation which he does not know.

Nevertheless promulgation does not pertain to the essence of law; for 1) it is the application of a rule and measure to the thing ruled and measured, whence it supposes a rule or law already constituted; 2) without promulgation law, because it is the command of a superior, has force from his authority and is apt to direct and bind; whence obligation is not from promulgation as from a cause but as from a condition sine qua non. In the same way the application of fire to a combustible thing is the condition required for burning.

1. Haine notes, Theologia Moralis I, q. 34: "It is a required condition, such as is the proposal of the object by the intellect, in order that the object move the will to love of itself. Therefore, just as, in order that an object in second act move to love of itself, it is necessarily and indispensably required that it be proposed to the will by the intellect, since nothing is willed unless it is foreknown; nevertheless the reason or power of moving the will is not the proposal of the object but the goodness found in the object; so, in order that law in second act obligate to its observance, it is indeed indispensably required that it be proposed to subjects by promulgation; nevertheless the reason or power of obligating is not the promulgation or proposal itself, but the authority which the law has in itself, as it proceeds from the legislator as bearing the person of the republic." Nor does the principle of law stand in the way: Laws are established when they are promulgated, as the Code puts it, can. 8 § 1, from Justinian. For the sense is: through promulgation laws are definitively established and complete as obligating in second act, although they already are in first act. Besides, the intention of the Code is not to settle a scholastic question.

228. The mode of promulgation is not determined by the law of nature: any mode whatsoever suffices, whether it is done by public reading in an assembly, or by the voice of a herald in the street, or by insertion in a newspaper, or by affixing in a public place, even one which is frequented, chief, and central, provided that morally, in a human mode, the law can rather easily come to the knowledge of the community, if not simultaneously, at least successively. It is more than sufficient if notification is made to individuals in particular, as in the natural law which God has inserted into the minds of men to be known naturally.

229. Once promulgation has been made, law is perfect and complete, and of itself begins to obligate, unless its force is suspended for a time; hence:

a) if the legislator has determined some time at which obligation begins, the law does not obligate before then: for just as it depends upon him whether there is obligation or not, so too it depends upon him whether it begins sooner or later;

b) if he has not determined a time, in a community of small extent, for example, a diocese, it obligates morally at once, because the promulgation can be known at once;

c) but in a sufficiently extended society, for example, the universal Church, law obligates in various regions successively, according to the time which is morally necessary so that knowledge of the promulgation can commonly come to all in those regions by ordinary means; whence it begins to obligate at once in the place where promulgation was made and in neighboring places, but it does not at once obligate everywhere, because it cannot at once be known by all in the whole territory.

From this it follows that, if someone before that time knew the law by an extraordinary way, he would not be bound to observe it.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

330. Ecclesiastical laws take on various forms.

Today there are enumerated:

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

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

Promulgation is the public announcement of a law, made by legitimate authority for inducing obligation upon subjects.

I say, 1st. Promulgation is altogether necessary for a law to induce obligation. The reason is that law, in order that it may oblige, must be intimated to the will, which is done through promulgation. - Cf. St. Thomas, 1-2, q. 90, art. 4. - St. Alphonsus, n. 96.

§ 1. Laws are instituted when they are promulgated (Can. 8).

I say, 2nd. Promulgation without knowledge of the law suffices for obliging in the external forum, because knowledge of a law duly promulgated is generally presumed. But in the internal forum, knowledge of the law is additionally required, because no one can sin without cognition of the obligation.

I say, 3rd. From the nature of the matter, it suffices that a law be promulgated in some principal city, or in such a place from which it can come to the notice of the community; and it obliges immediately once it has been promulgated. But in practice attention must be paid to received custom, or to the particular statutes of various places. Wherefore Kenrick says: "among us, a law is judged promulgated as soon as it has been made, excepting some States in which it is necessary that twenty, thirty, or sixty days elapse before it has force." - Cf. Kenrick, tract. 6, n. 8, with the added notes.

Question: How are Pontifical and Episcopal laws promulgated?

Response. As regards the first. Laws made by the Apostolic See are promulgated by publication in the official commentary of the Acts of the Apostolic See, unless in particular cases another mode of promulgating has been prescribed; and they exert their force only after three months have been completed from the day which is placed upon the number of the Acts, unless from the nature of the matter they bind immediately, or in the law itself a shorter or longer vacatio has been specially and expressly established (Can. 9).

As regards the second. § 2. Episcopal laws begin to oblige immediately from promulgation, unless something else is provided in them; moreover, the mode of promulgation is determined by the Bishop himself (Can. 335, § 2).

I suppose that some promulgation is necessary for the law in order that it oblige in act: because, as was said, law is the rule of human acts, and these cannot be regulated by it unless it become known; but it becomes known through promulgation.

I said, some promulgation, because it is different according to the diversity of laws. The eternal law¹ and the natural law is promulgated to each one through the dictate of reason. The positive divine law is promulgated either by internal revelation, as in the prophets, or solemnly, as the old law on Mount Sinai, the new law on the day of Pentecost. Usage, however, has prevailed that human law be always promulgated with some solemnity, and thus reason requires. For since the human legislator bears a double person, private and public, he ought to propose the law in such a way that he signify that he proposes it as a public person, which is done by employing some solemnity. ¹ The eternal law, as such, is not promulgated, but remains hidden in the divine mind. But if it go forth outside the divine mind and be communicated to rational creatures through the intellectual light, then it is for them the natural law; and thus considered it is promulgated to each one through the dictate of reason.

If you say that promulgation is not required for the revocation of a law, I reply that the revocation of a law is not a law, but the destruction of a law. More is required, however, to constitute a thing than to destroy it. For the reply to the question

^{1 1} The eternal law, as such, is not promulgated, but remains hidden in the divine mind. But if it go forth outside the divine mind and be communicated to rational creatures through the intellectual light, then it is for them the natural law; and thus considered it is promulgated to each one through the dictate of reason.

I say: It seems more probable that promulgation is not of the essence of law, but is only a condition required irreplaceably in order that it oblige in act, just as, e.g., the proposal of the object is a condition required irreplaceably in order that it be loved.

It is proved. To the essence of law it suffices that it have an aptitude to direct and to oblige; for the essences of things are defined by first act or aptitude, not by second act, as the philosophers teach. But law before promulgation has an aptitude to direct and to oblige; for it has not this aptitude from promulgation, but its actual direction and obligation as from a condition. Therefore.

It is confirmed. Law is the rule by which we are induced to act, or withheld from acting, with some obligation. But promulgation is not a rule, nor part of the rule, nor does the force of obliging, or actual obligation, proceed from it as from a cause, since this ought to be from a superior as from a cause, but only as from a condition: just as heating is not from approximation as from a cause, but from fire, although it depends upon approximation as upon a condition.

As to St. Thomas, whose mind is disputed, he teaches here a. 4, that promulgation is related to law as the application of the rule to the thing ruled; but the application of the rule is not of its essence, but supposes it constituted. Whence, when he there says that, in order that the law obtain the virtue of obliging, it must be promulgated, he understands the virtue of obliging in second act, not in first act.

[Thus Billuart. But proceeding further and restricting the question to positive law, whether divine or human,

I say: Promulgation is of the essence of law.

It is proved. 1° That without which a thing has not its own being pertains to its essence. But before promulgation the law has not its own being. Therefore promulgation pertains to the essence of law. — The minor is proved. What is only in potency has no being. But so long as the law is not promulgated, it is only in potency. Therefore then it has not its own being. — The minor is evident; for so long as the law is not promulgated, whether it remain hidden in the mind of the legislator, or the legislator have externally manifested his intention of enacting such a law, nothing is perceived except a mere proposal. But this proposal is not law, but only the preparation of the law; and preparation indeed leads a thing toward being, but, until the last act be posited, leaves it in potency. Therefore, so long as the law is not promulgated, it is only in potency.

2° The law is not fully constituted, that is, it is not true law, unless it have the force of obliging. But the law obtains the force of obliging through promulgation, and not otherwise. Therefore, until it be promulgated, it is not true law. — I subjoin. That without which the law is not true law pertains to its essence. But the law is not true law before promulgation. Therefore promulgation is of the essence of law.

3° Law is an ordinance of reason for the common good. But it is not such unless it be made known to the community; and this making known is promulgation made by him who has the care of the community: whence promulgation is contained in the definition of law. Therefore promulgation is of the essence of law; for the definition expresses the very essence.

4° The same is proved by the authority of St. Thomas, here q. 90, a. 4.

The mind of the Master in this place was disputed. Some say with our Billuart: St. Thomas says that promulgation is related to law as the application of the rule to the thing ruled. But the application of the rule is not of its essence, but supposes it already constituted. Therefore the holy Doctor does not place promulgation in the essence of law, but declares only that it is a condition without which the law does not oblige. — If the words of the Angelic Doctor be rightly weighed, his contrary mind will clearly be perceived. In the place cited he solves the following question: « Whether promulgation is of the notion of law? » In the head of the objections the negative proposition is read: « It seems that promulgation is not of the notion of law; » whence whoever has understood the method of the author must straightway conclude that he champions the contradictory proposition, which is equivalent to our proposition; thus he proceeds in the body of the article: « Law is imposed on others by way of rule and measure. But rule and measure are imposed by the fact that they are applied to those things that are ruled and measured. Wherefore, in order that law obtain the force of obliging, which is proper to law, it must needs be applied to men who ought to be regulated according to it. Such application is made by its being brought to their knowledge through promulgation itself. Wherefore promulgation itself is necessary in order that law have its force. And thus from the four things premised may be gathered the definition of law, which is nothing else than a certain ordinance of reason for the common good, promulgated by him who has the care of the community. » This definition is the conclusion of the whole article; and after describing the law in itself and with regard to subjects whose actions he cannot rule and measure unless he reach them through promulgation, St. Thomas places this promulgation in the definition of law. But he would not have assigned this place to promulgation had he not held it essential to law. Therefore he held it as such.

It is confirmed by the axiom of law related above, dist. 4, cap. 3: « Laws are instituted when they are promulgated, » where the promulgation of the law is given as its very institution. Therefore from promulgation the law receives that it is true law. Therefore promulgation is of the essence of law. And this is intimated by Justinian, saying, c. de Legib., in leg.: « The most sacred laws ought to be understood by all, that all, their precept being more clearly understood, may decline what is forbidden and do what is commanded. »

You will say: The law obliges not only those to whom it has already become known, but also those who are ignorant of it, as appears in laws irritating contracts, which produce their effect even toward those to whom they are wholly unknown. Therefore promulgation is not necessary in order that the law oblige. Therefore consequently it is not of the essence of law.

I answer. I deny the consequence. For it is one thing the divulgation of a law, another its promulgation, as the Salmanticenses note, cap. 1, n. 74. For divulgation there is required that the law become personally known to each subject; for promulgation indeed it suffices that it have been notified generally to the community, so that any private person can easily come to know it. Further, the law does not receive its intrinsic virtue of obliging from divulgation, but from promulgation, so that as soon as it has been intimated to the community it binds all subjects at least in the external forum, since all are juridically presumed not to be ignorant of it. A distinction must be made between irritating laws, by which subjects, even though unknowing, are rendered unfit in either forum for determinate acts, on account of the motive of the public good, and laws which render certain acts illicit and bind conscience.

Laws of the latter kind are true laws once they have been intimated to the community, and toward all they hold their obligatory force. But if they have been insufficiently divulged, so that they have not become known to some, although even toward subjects of this kind they rejoice in all the marks of true law, nevertheless they do not bind them in the internal forum, because these are laboring in invincible ignorance, which excuses from formal sin; and respectively toward them such laws ought to be regarded as not promulgated. And in this sense we understood the principle: « A doubtful law is no law, » in our dissertation on moderate Probabilism.

You will ask whether a sufficiently promulgated law obliges all, even those who invincibly are ignorant of it.

I answer. More probably affirmatively: because 1° the law in promulgation is directed not only to those present, but also to the absent. Therefore it comprehends them also. 2° Because, if a credible private person denounce to an absent person a sufficiently promulgated law, he will be bound to observe the law, and will sin by transgressing it. But this obligation does not arise from that private denouncer. Therefore from the promulgated law. Therefore before the denunciation it obliged.

Nevertheless all concede that those who invincibly are ignorant are excused from fault and from punishment for transgressing the law; but if the law were not only prohibitory but also irritative of some act, the act would be invalid even in one invincibly ignorant, as, e.g., clandestine marriage in places in which the Tridentine [decree] is sufficiently promulgated.

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

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

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

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

4. What is to be said concerning the case?

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

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

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

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

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

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

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

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

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

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

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