Page:Catholic Encyclopedia, volume 9.djvu/84

 LAW

59

LAW

Again, to attain its sublime end, the Giurch, en- dowed by its Founder with leeislative ix)wer, makes laws in conformity with natural and Divine law. The sources or authors of this positive ecclesiastical law are essentially the episcopate and its head, the pope, the successors of the Apostolic Collie and its divinely appointed head, Saint Peter. They are, properly speaJdng, the active sources of canon law. Their ac- tivity is exercised in its most solemn form by the cecu- memcal councils, where the episcopate united with its head, and convoked and presided over by him, with him defines its teaching and makes the laws that bind the whole Church. The canons of the oecumenical councils, especially those of Trent (see Councils) hold an exceptional place in ecclesiastical law. But, with- out infrmging on the ordinary power of the bishops, the pope, as head of the episcopate, possesses in him- self the same powers as the episcopate united with him. It is true that the disciplinary and legislative power of the popes has not always, in the course of centuries, been exercised in the same manner and to the same extent, but in proportion as the administration became centralized, tneir direct intervention in legisla- tion became more and more marked; and so the sov- ereign pontiff is the most fruitful source of canon law; he can abrogate the laws made by his predecessors or by oecumemcal councils; he can legislate for the whole church or for a part thereof, a country or a given body of individuals; if he is morally bound to take advice and to follow the dictates of prudence, he is not le- gally obliged to obtain the consent of any other pei^ son or persons, or to observe anv particular form; his power 18 limited only by Divine law, natural and posi- tive, dogmatic and moral. Furthermore, he is, so to say, the living law, for he is considered as having all law in tiie treasury of his heart (" in scrinio pectoris"; Boniface VIII, c. i, " De Constit.", in VI^). From the earliest a^es the letters of the Roman pontiffs con- stitute, with the canons of the councils, the principal element of canon law, not only of the Roman Church and its immediate dependencies, but of all Christen- dom; they are everywhere relied upon and collected, and the ancient canonical compilations contain a large number of these precious "decretals** (decreta, atat- ukif epistolcB decreUdeSj and epistolce synodicm) . Later, tho pontifical laws are promulgated more usually as constitutions, Apostolic Letters, the latter being classi- fied as Bulls or Briefs, according to their external form, or even as spontaneous acts, "Motu proprio*'. (See BuLi^ and Bbiefs.) Moreover, the legislative and disciplinary power of the pope not being an in- communicable privilege, the laws and regulations made in his name and with his approbation possess his authority: in fact, though most of the regulations made by the Congregations of the cardinals and other organs of the Cuna are incorporated in the Apostolic 'Letters, yet the custom exists and is becoming more

general lor legislation to be made by mere decrees of be Congregations, with the papal approval. These are the Acts of the Holy See" (Acta Sanctss Sedis), and their object or purpose permitting, are real laws (see Roman Curia).

Next to the pope, the bishops united in local coun- cils, and each of them individually, are sources of law for their common or particular territory; canons of national or provincial councils, and diocesan statutes, constitute local law. Numerous texts of such origin are fotmd in the ancient canonical collections. At the

S resent day and for a long time past, the law has laid own clearly the powers of local councils and of bishops; if their oecrees should interfere with the common law they have no authority save in virtue of pontifical approbation. It is well known that dio- cesan statutes are not referred to the sovereign pon- tiff, whereas the decrees of provincial coimcils are submitted for examination and approval to the Holy See (Const. "Immensa" of Sixtus V, 22 Jan., 1587).

We may liken to bishops in this matter various bodiaf that have the right of governing themselves and thus enjoy a certain autonomy; such are prelates with terri- torial jurisdiction, religious orders, some exempt chap- ters and universities, etc. The concessions granted to them are generally subject to a certain measure of control.

Other sources of law are rather impersonal in their nature, chief among them being custom or the un- written law. In canon law custom has become al- most like a legislator; not in the sense that the people are made their own lawriver, but a practice followed by the greater part of the commumty, and which is reasonable and fulfils the legal requirements for pre- scription and is observed as obligatory, acquires the force of law by at least the tacit consent of the legis- lator. Under such circumstances custom can create or rescind a legal obligation, derogate from a law, interpret it, etc. But it must be remarked that in«our days, owing to the fullv developed body of written law, custom plays a much less important part than did the practices and habits of early Christian times, when there was but little written law and even that seldom of wide application. The ci\nl law of different nations, and especially the Roman law, may be num- bered among the accessory sources of canon law. But it is necessary to explain more exactly its role and im- portance. Evidently secular law cannot be, strictly speaking, a source of canon law, the State as such having no competence in spiritual matters; yet it may become so by the more or less formal acceptation of particular laws by the ecclesiastical authorities. We pass by in the first place the laws made by the mutual agreement of both parties, such as the legislation of the numerous assemblies in the Visigothic kingdom, and the Frankish kingdom and empire, where the bishops sat with the lords and nobles. Such also is the case of the concordats (q. v.) of later ages, real con- tracts between the two powers. In these cases we have an ecclesiastico-civil law, the legal force of which arose from the joint action of the two competent au- thorities. It is in a different sense that Roman law, Germanic law, and in a lesser degree modern law, have become a subsidiary source of canon law.

It must be remembered that the Church existed for a long time before having a complete and co-ordinated system of law; that many daily acts of its administra^ tion, while objectively canonical, were of the same nature as similar acts in civil matters, e. g. contracts, obligations, and in general the administration of prop- erty; it was quite natural for the Church to accommo- date itself in these matters to the existing laws, with- out positively approving of them. Later when the canonists of the twelfth century began to systematise the ecclesiastical law, they found themselves in pres- ence, '^n the one hand, of a fragmentary canon law, and on the other hand of the complete methodical Roman code ; they had recourse to the latter to supply what was wanting m the former, whence the maxim adopted by the canonists and inserted in the '' Corpus Juris ", that the Church acts according to Roman law when canon law is silent (cap. 1. "De novi op. nunc.*', X, i, V, tit. xxxii). Moreover, in the Teutonic kingdoms the clergy followed the Roman law as a personal statute. However, in proportion as the written canon law in- creased, Roman law became of less practical value in the Church (cap. 28, X, "De priv.^', X, lib. V, tit. xxxiii). Canon law, it may be said, adopted from Homan law what relates to obligations, contracts, ju- diciary actions, and to a great extent civil procedure. Other Roman laws were the object of a more positive recognition than mere usage, i. e. they were formally approved, those, for instance, which though of secular origin, concerned ecclesiastical things, e. g. the By- zantine ecclesiastical laws, or again laws of civil origin and character but which were changed into canon- ical laws, e. g. the impediment of marriage arising