ARTICLE I: ON THE OBJECT OF LAW

104. Principles. - I. The object of law is all and only acts whose positing or omission can confer upon the common good; for this good is the reason or end of law (n. 100, 3°). Hence:

II. All indifferent acts distributively taken can be the object of law; for since acts of this kind can confer upon the common good, by that very fact they can be commanded or forbidden.

Hence the distinction between those things which are prohibited because they are evil, and those things which are evil because they are prohibited. Moreover, these latter are from the number of acts indifferent in themselves.

105. Questions. - Quaer. 1° Do heroic acts fall under law?

It must be noted beforehand. Virtues by reason of exercise are distinguished into common and heroic. Common virtues are those which are exercised by men according to that manner which those who profess virtue ordinarily are accustomed to observe. But heroic virtues are those which, the circumstances being considered, beget admiration, include arduousness, and require promptitude,¹ as, for example, if a boy should fast rigorously. This being posited:

Resp., by distinguishing. 1° Divine law, both natural and positive, can oblige to acts of this kind, or even with the risk of life. Thus the Holy Martyrs underwent death, and a most bitter one, not from some supererogation, but from obligation. Thus likewise, even with risk of life, you are bound to administer baptism to an infant in danger of life. For although law must be possible, nevertheless it suffices that it be morally possible, or possible in cases commonly occurring; but the acts about which we are treating are to be posited very rarely, and therefore in the response it is said, can oblige.

2° Human law generally cannot prescribe acts of this kind to the unwilling; for to the end of human law, or to the common good, the positing of them is generally not necessary. I said: a) generally cannot prescribe; for sometimes the positing of them is necessary in order to avoid contempt of God or of religion, or for the common good, and so watch-soldiers cannot desert their post, even when danger of life is imminent, if the republic is going to suffer harm from it. I said: b) to the unwilling, so as not to include laws which are made on the hypothesis of some particular state which someone has voluntarily embraced; and thus the Church prescribes perpetual cloister to nuns.

106. • Quaer. 2° Can human law prescribe, and likewise prohibit, internal acts?

It must be noted beforehand. An internal act can be prescribed and prohibited both directly, or in itself, as the Schools speak, and indirectly, or by reason of external acts with which it is necessarily joined. But an internal action can be joined with an external one - either as the form constituting the external act itself in its moral being, as, for example, consent in marriage; or as a cause producing its effect, as, for example, the will of killing in voluntary homicide; or as a necessary condition, as, for example, contrition in confession. These things having been premised:

Resp. If the speech is about those internal acts which are necessarily joined with external ones, it is certain that a human legislator can indirectly prescribe and prohibit internal acts, insofar namely as they are joined of themselves with the external acts themselves, either as form, or as cause, or as a necessary condition. For if a human legislator can compel to a valid external act, for example to a valid contract or to a valid confession, he will also be able to oblige to those things which are necessarily joined with that validity, and which, being omitted, the external action would be prescribed in vain.

But if the speech is about those internal acts which are not necessarily joined with external ones, all agree that a civil legislator cannot prescribe or prohibit them; for even without these he obtains his end, namely the tranquillity of the republic, which is easily had if the external acts which are prescribed are posited, and those which are prohibited are omitted.

We said: the civil legislator; for concerning the ecclesiastical one it is disputed. To St. Alphonsus¹ the sentence of St. Thomas² and Suarez,³ who deny, is more probable. For since the Church cannot know merely internal acts, neither can she judicially urge their execution or punish their omission; therefore neither can she prescribe or forbid them. For it belongs to the nature of a true society that the acts which it commands it can know of itself, namely from the nature of the acts themselves, even if sometimes it can be impeded accidentally from such knowledge by some extrinsic cause.

A confessor imposing merely internal acts on a penitent, as, for example, pious aspirations, bears the person not of a human legislator, but of the divine legislator, or, if you prefer, acts as minister of the Sacrament; and therefore he would be objected no less outside the thesis than the Church or a regular prelate when he prescribes meditation to religious.¹ For laws of this kind are not given to the unwilling, or are made on the hypothesis of a state which someone has voluntarily undertaken, or of an action which he posits.

107. • Quaer. 3° Can human law prescribe hidden external acts?

Resp. Affirmatively. Because it has the power of directing whatever is external. For hidden acts do not differ in their own nature from others; but that they cannot be punished happens accidentally.¹

108. • Quaer. 4° Does law extend itself to past acts?

Resp. Negatively: neither by reason of fault, since there is no prevarication where there was not yet a law; nor by reason of pure penalty, since it is made for the vindication of fault alone; nor by reason of rescission of acts, except in some case expressed by law. Hence the axiom: "Law does not have retroactive force." - Our Constitution consonantly has in express words: "No . . . ex post facto law shall be passed,"² and "No state shall . . . pass any . . . ex post facto law, or law impairing the obligation of contracts."³