Article II: On the Matter and Quality of Ecclesiastical Law

325. The matter of ecclesiastical law in general. - The matter of human law is all acts whose performance or omission can contribute to the common good, even those which of themselves are indifferent, insofar as they can be ordered to virtue or vice. The common good which the Church intends is the worship of God and the supernatural sanctification of men; whence it can make laws concerning those things which pertain to spiritual life, such as faith, the Christian virtues, the remission of sins and indulgences; concerning those things which look to worship, such as sacrifice, sacraments, prayers, vows, oaths, processions, pilgrimages, ceremonies, feast days; concerning sacred persons set over spiritual life and worship; concerning temporal goods necessary for providing for all these things.

Moreover, in all these things law can either inculcate the natural and divine law (e.g., by prohibiting heresy, prescribing Baptism), or determine what they leave undetermined (e.g., annual confession, Paschal communion, Sunday, fasting), or impose what is more conformable to them (to celebrate the Nativity of the Lord), or prescribe and prohibit what they permit (to abstain from meats, from servile or forensic work), or urge all these things by an added special sanction of penalty (e.g., excommunication), and also add conditions for the validity of an act instituted by natural, divine, or ecclesiastical law (thus for religious profession, for marriage, e.g., that it be celebrated before the pastor).

326. Specifically, what acts can be prescribed. - On the part of the matter, ecclesiastical law, as being human law, must prescribe acts which are:

1. generally honorable, that is, not contrary to a higher law, e.g., natural or divine;

2. specifically just, that is, opposed to the right of no one;

3. contained within the ambit of the jurisdiction of the legislator: for subjects are bound to obey superiors according to the reason of superiority; whence besides jurisdiction in the superior, competence is required, that is, power over the particular matter about which the law is concerned;

4. useful for the common good. Such, per se and regularly, are only acts:

a) morally possible and accommodated to the powers of men; otherwise the law would not be conformable to reason, nor would it promote the common good, but more often would be an occasion of sins. Nevertheless, let it be noted that judgment concerning the difficulty of a law belongs to the legislator, not to the subjects; otherwise it would be the end of laws. Moreover, arduous and heroic acts can be imposed upon those who have freely chosen a state to which they pertain (such as perpetual continence upon priests and religious, perpetual enclosure upon nuns, missions in places of barbarians upon missionaries), or even when the public good demands it (e.g., the administration of the sacraments by a pastor in time of plague);

b) future: for to command, prohibit, permit past acts, or, if they are irrevocable, to invalidate them, would be useless; likewise past acts cannot be punished unless they had already been prohibited by some law, nor can revocable acts be invalidated or persons rendered unfit or incapable for past acts, except on account of a great necessity of the common good: for the good of a part must always yield to the good of the whole. Hence canon 10: "Laws regard future things, not past things, unless provision is made in them by name concerning past things" (cf. can. 2226, § 2 and 3, and 2222). But a law not constitutive of new right, but merely declarative of an older right, is able to touch past acts;

c) external, which alone place us in relation to society and alone are directly referred to external governance.

327. Can internal acts be prescribed?

Many more recent authors, by distinction from the older ones, prefer to extend the legislative power of the Church to merely internal acts. Nevertheless they assert this without foundation. For:

1. Thus formerly Sylvius and Elbel, Schmier and Bockhn; but now Ballerini-Palmieri, Bouquillon, Van den Berghe, Lehmkuhl, Maroto, Leroux in Revue Ecclesiastique de Liege, VII, n. 3, November 1911; Noldin favors it. On the contrary, St. Thomas, I-II, q. 91, a. 4; q. 95; q. 100, a. 9; II-II, q. 104, a. 5; Suarez, Benedict XIV, Reiffenstuel, St. Alphonsus, d'Annibale, Billot, Vermeersch, and almost all canonists.

1. Just as the power of the internal forum directly and immediately regards the internal sanctification of individuals, so the legislative power of the external forum per se first tends to external and common governance, for society, even ecclesiastical society, is a visible and external body. But merely internal acts are not apt matter for governance of this kind. Therefore. And surely human law, since it is enacted for the community, affects individuals insofar as they are part of visible society and communicate socially among themselves; whence social power is necessarily of the external forum. But merely internal acts do not pertain to social communication: for through them we do not communicate with others. Therefore internal acts directly and according to themselves cannot be the object of human law and of social power.

2. The legislator cannot make laws except concerning those things about which he can judge and to which he can compel; otherwise law would be useless and inefficacious for obtaining its effect. Hence legislative, judicial, and coercive power are of the same order, as parts of one integral power of jurisdiction, which therefore per se are contained by the same limits. But a human legislator cannot judge or punish except external acts. Therefore neither can he command except external acts.

1. They respond: 1) The Church could impose censure. But an unknown internal sanction is not naturally proportioned to an external law. 2) It can appeal to divine judgment. But kings also could do this; why, therefore, could they not also prescribe internal acts, for example, of love and devotion toward the republic?

3. Whence Innocent III says: the Church does not judge concerning hidden things.

Hence legislative power of the internal forum cannot be conceived except as vicarious of God and to be exercised in the name of God; but from revelation or from the usage of the Church no trace is given of such power conceded by God. For the words Mt. XVI, 19 and XVIII, 18 must be understood with restriction according to the nature of the thing, and are general only within the latitude which is always assigned to a human legislator; otherwise they would also prove that the Pontiff can dissolve natural or divine law, or make law in temporal and civil matter.

Therefore: a) it is not proved that ecclesiastical law can prescribe merely internal acts, and it is certain that it does not do so;

b) it is able directly to touch all external acts, even hidden ones; for external acts per se and by their nature are public and only per accidens are hidden; but law attends to those things which happen per se and commonly;

c) it is able indirectly to touch all internal acts which are the form of exterior acts and are conjoined with them, whether necessarily and per se, or even per accidens, provided that in some way they manifest themselves externally: for by this very fact they are touchable by law. Thus there is touched: 1) the internal cause of an external act, e.g., the will of fasting is also prescribed and the will of eating meats is prohibited; likewise 2) a necessary condition so that the external act may have species, validity, honesty, and even special morality, e.g., intention in an oath or in the sacraments or sacrifice, attention in prayer, sorrow in contrition, intention of obligating oneself in a contract, consent in marriage, dispositions so that acts (e.g., confession or communion) may be good (cf. prop. 14 condemned by Alexander VII and 55 condemned by Innocent XI, and can. 907 and 861); 3) likewise a special motive or accidental end on account of which the act is to be placed: Mass to be celebrated for the flock, prayer for rain, for the souls in purgatory, etc.; namely, it is a condition of the public act as it is intended by the Church.

1. Likewise censure punishes an act done from hatred, favor, avarice, or love of base gain. Yet in this way it does not touch the internal act, but does not touch the external act unless it is done from hatred, etc. It is, namely, only a restriction of punishment, as Suarez and the Salmanticenses say. Or, as Santi explains: insofar as that internal act goes out into the external forum and produces bad effects in society.

328. Observation.

Although by legislative power the Church does not touch merely internal acts, nevertheless it can touch them by another power; and indeed:

1. it can attach a favor, e.g., an indulgence, to an internal act, as it has done for meditation on the way of the cross;

2. it can in the name of God interpret natural and divine law even as to merely internal acts, to which then we are bound not by force of ecclesiastical law, but by force of the higher law: thus in the name of God it can remit vows or oaths even internal ones;

3. it can in the name of God in the internal forum of conscience absolve from sins, even internal ones, and prescribe merely internal things, e.g., pious meditation;

4. it can, through superiors, prescribe internal things to religious, by force of the vow of obedience, e.g., mental prayer, examination of conscience.