Civil law and conscience

The civil authority has full power to make laws in order to the attainment of its own special end, which is the common temporal welfare of its subjects. If these laws are just, they cannot be ignored by the moral theologian, for very many practical questions will depend on them for their solution. When the classical authors published their folios on moral theology, they appealed for the most part to the jus commune, the common law of Christendom, which was the Roman civil law modified slightly by local Nowadays this cannot be done. enactments and customs. The unity of Christendom with its common, universally accepted stock of ideas and laws, no longer exists, and regard must be paid to municipal or local law. Especially in England and in America must this be done, for the system of law which is in force among us is distinct from the Roman civil law, and from the modern European systems which are largely based upon it.

In this section, then, we will consider the bearing of English law on questions of conscience, and try to lay down certain general principles which will guide us towards the solution of particular cases as they arise.

We saw above that the legislative authority in civil matters can bind the conscience under pain of sin by its laws, if it so choose, for God bids us obey lawful authority. It is clear, too, that if the civil authority transgresses the limits assigned to it, and makes laws which conflict with the law of God, or with the law of the Church in her own sphere, such civil ordinances have no binding force. Laws, then, which affect to dissolve the bond of marriage, which refuse to acknowledge rights of religious granted by the Church, and others of a similar nature, are no true laws at all, and need not be regarded, except in so far as is necessary to avoid greater evil.

With regard, however, to such laws as it is within the competence of the State to make, conscience obliges us to pay loyal obedience to those which urge and apply the law of nature. Near relatives are bound to support the indigent poor because it is their natural duty, and also because the State commands it; and, similarly, crime must be avoided because it is wrong, "and because the State forbids it. Where the law of nature is indeterminate and vague, but where the positive law has stepped in to define rights for the common good, conscience must also submit to the civil law. Unless we admit this, we shall have to say that in such matters there is no certain and definite rule for conscience to follow; rights and obligations will be left in uncertainty, to the serious disturbance of men’s consciences and the public inconvenience. Laws, therefore, which govern prescription, the rights of inventors and authors, the distribution of the property of intestates, the property rights of married women, the capacity of minors, and contracts, will have binding force in both the external and internal forum.¹

¹ D’Annibale, 1, n. 206.

Certain laws merely refuse an action to vindicate a claim or bar the remedy. Such laws do not annul or invalidate any natural right which may exist in the case; the law cannot produce an effect which was never intended by the legislator, and which is repudiated by those who administer the law. A debt, then, which is barred by statute still remains a debt, and must be paid; an unstamped document may suffice to prove an obligation in conscience, though it would not be admitted in a court of justice until the defect was made good; contracts seriously entered into and completed will bind the conscience, even though the law will not enforce them because they are not in writing, or because there is not the consideration which is required by law. Points of Church Law, 25. Codex juris canonici, passim. See Slater,

I. Notion. Taxes are goods which the competent Authority imposes as to be contributed for assisting the common necessity or utility. That an authority of this sort has this right is clear from what was said in n. 764. Moreover, it is said:

1. Goods; by which are understood real burdens, whether in kind or, as commonly obtains, in money.

2. Competent Authority, whether ecclesiastical or civil; wherefore canons 1504-1506 and the Civil Code of the country should be consulted.

3. For assisting, etc.; these matters may be seen explained in n. 1053.

II. Division. Taxes are especially distinguished into direct and indirect. Direct taxes are those which are founded on stable possession or use of goods, and are demanded at stated times; by authors they are said directly or immediately to affect persons.¹ Indirect taxes are those which, when some fact occurs, must be paid; they are said directly to affect things,² and are called indirect because sellers, on account of the taxes imposed, increase the price, so that they fall indirectly upon buyers.

¹ Such are, for example, taxes on persons, lands, buildings, capital. Succession tax is counted by some among direct taxes, by others among indirect taxes.

² Such as customs and tolls.

III. Requisites for the justice of a tax law. The following are required: 1° a just cause, namely of common necessity or utility (764); 2° the proportion of the tax to the cause or to the causes, so that a greater burden not be imposed than the causes require. I have said or to the causes, because today it is not so strictly determined which taxes precisely serve for such an object; 3° a just distribution, namely such that each person must pay according to his economic strength (St. Alphonsus, III, 615).

Corollary. Taxes should not too easily be regarded as unjust, as, for example, taxes imposed for maintaining armies (n. 1059), or for constructing certain luxurious buildings, since these bring some social good with them. Yet other taxes, for example those to be spent on bad schools, must be condemned; and taxes to be spent on useless or dangerous things, such as theaters, etc., are even less pleasing.

IV. The obligation of a tax law is explained in different ways by different authors. Some hold all tax laws to be merely penal; others judge that tax laws which impose direct taxes are mixed, and that those which prescribe indirect taxes are merely penal. Then it is disputed whether mixed penal laws oblige from commutative justice or from another virtue.¹

Now, first, the natural law dictates that taxes must be paid so that the common necessity may be assisted (St. Alphonsus, III, 616). Positive and just laws determine this natural law further. But with respect to these laws it seems this must be said:

1. The law of paying a tax, after the amount to be paid has been legally defined, seems mixed, or to oblige to the act. And first, indeed, Sacred Scripture seems to favor this opinion: "Render therefore the things that are Caesar's to Caesar, and the things that are God's to God."² And: "Wherefore be subject of necessity, not only for wrath, but also for conscience' sake. For therefore also you pay tribute: for they are the ministers of God, serving unto this purpose. Render therefore to all men their dues: tribute, to whom tribute; custom, to whom custom."³ These, in their obvious sense, impose the act of paying, not only the penalties to be undergone after neglected payment. Then, the legislator is judged to make laws in the manner which is especially suited to the matter of the laws. But to the matter of tax laws it is especially suited that the very act of paying the tax be prescribed. For tax laws further determine the natural law itself of paying tax; and it is fitting that, through laws which further determine the natural law, the act itself also be prescribed, just as that is done through the law itself which is further determined.

Objection 1. Modern legislators do not intend to oblige or truly command; indeed, they neither acknowledge nor care for obligation, or the power of obliging, or any morality.

For the response, see n. 162.

Objection 2. Common estimation holds tax laws to be merely penal.

Response. I deny that, from common estimation, the just law of paying tax, after the amount has been legally defined, is merely penal. The estimation involves at most: 1° that the taxes imposed are greater than just, and therefore that there is no obligation of paying all; 2° that the law of declaring things subject to indirect tax is merely penal.

2. The law of declaring things subject to tax, if perhaps such a law exists:⁴

a) It seems mixed, if there is question of direct taxes. The reason is that the legislator is presumed to make in the same way the law which concerns the means by which the amount to be paid can be defined, as the law of paying the defined amount; and this presumption is not overthrown by contrary arguments. Yet he does not sin who follows the received custom of somewhat diminishing the value of things to be declared; nor is he to be rebuked who, in a personal tax, does not declare everything to the exact measure.

b) Practically it can be held as merely penal, if there is question of indirect taxes. The reason is that, what cannot be said about the law of declaring things subject to direct tax, a fairly common estimation holds this law as merely penal. There is added that an exorbitant penalty threatens those who defraud, i.e. one which, considering only the gravity of the act, is graver than is fitting; now, to many it seems less suitable to oblige both under fault and under the threat of an exorbitant penalty (cf. St. Alphonsus, III, 616). Therefore he does not sin who, by declaring nothing or even by hiding things, defrauds indirect taxes.

To what extent foreigners are held by laws, including tax laws, see n. 133.

3. Tax laws which we have said are mixed, sufficiently probably do not oblige from commutative justice, but from legal justice or another virtue distinct from commutative justice. The reason is taken from the fact that an obligation of commutative justice is not proved, as will be clear from discussing the arguments of the contrary opinion. Therefore, when the law has not been fulfilled, there is no obligation of restitution. Yet note that the obligation of paying the tax persists until that time for demanding it has passed.

Objection 1. The legislator, by imposing taxes, disposes of part of the goods of his citizens, and assigns a strict right in it to the treasury; this he can do by virtue of eminent domain.

Response. That the legislator, by a direct disposition, establishes a strict right is not clear. With equal right it is admitted that the legislator, by imposing a tax, disposes of part of the goods only in this sense, that he imposes on the citizens an obligation, for example of legal justice, to yield part of their goods to the treasury.

Objection 2. Legal justice can indeed regard all honorable acts, but those very acts are imposed from the motive of honesty proper to them, not from the motive of legal justice.

Response. Nothing prevents us from saying that in many acts there is the honesty of legal justice, and that they are imposed from the motive of that virtue. Besides, from the fact that an honorable act is not imposed from the motive of legal justice, it does not plainly follow that it is imposed from the motive of commutative justice.

Objection 3. From the fundamental pact of many kingdoms, the people themselves or the citizens, who are all declared equal before the law, elect deputies as mandataries, who each year decide what public expenses are to be made and how the money for this is to be procured. Therefore the mandating citizens are judged immediately to oblige themselves to furnishing the things which the mandataries have decreed necessary.

Response. The deputies are not mandataries strictly so called, or in no way act in the name of the citizens, but in their own name. Moreover, the deputies concede to the Government the right of procuring the necessary moneys, without establishing that these are to be demanded from the motive of commutative justice.

Objection 4. Taxes must be paid according to equality of thing, i.e. of the tax established, to thing, i.e. the tax to be paid. But equality of thing to thing is regarded by commutative justice.

Response. Taxes must be paid according to a proportionately established equality of thing to thing, I concede; according to equality taken simply, I deny. But proportionately established equality of thing to thing is not regarded by commutative justice (n. 379).

¹ The opinion of some, who assert an obligation of obedience, seems altogether to be rejected (n. 148).

² Matt. XXII, 21.

³ Rom. XIII, 5-7.

⁴ Namely, here and there some laws prescribe that citizens declare things subject to tax, others commit this to officials to be investigated, others leave citizens the faculty of choosing either one.

Corollary I. A tax law about whose justice there is meritorious and serious doubt per se does not oblige, because there is question of damage to the subject; in which case, in doubt, per se there is no obligation of observing the precept (n. 146; St. Alphonsus, III, 617). But since in doubt it is commonly to be presumed in favor of the justice of the law, the case will not occur so easily with respect to a determinate law. Yet with greater right it is admitted that, in so great a multitude of taxes, certain ones are less just, especially insofar as they are applied to harmful rather than useful things, for example to supporting harmful universities and schools; hence anyone who prudently judges that he has sufficiently contributed to the common good can defraud the other taxes; indeed, practically, it can be said that payment of a third part can be evaded. Yet those are to be disapproved who make a profession of defrauding duties, because they expose their soul and their goods and those of their family to danger.

Corollary II. Those who corrupt tax guards cooperate toward an unjust act, and therefore are held to restore the value of the taxes defrauded; but they are not held to restore the fine which, if caught, they would have had to pay (p. 657). Nor are they held to restitution or do they sin who, by words or little gifts, etc., strive to win the guards over to themselves, so that they abstain from unjust vexation, or so that they act kindly, though not unjustly, especially by carrying these laws into execution in a human way, as is fitting.

Corollary III. Those who deceive the guards, for example by seriously declaring that nothing subject to tax is present, are held to restitution if the law prescribes declaration, or if the citizen, according to what was said in n. 1054, has chosen declaration. The reason is that the treasury is impeded by an unjust means from obtaining a good (n. 996). But if the Government commits the matter to officials to be investigated, the deceiver sufficiently probably is not held to restore, because in the case the Government seems not to care for the declaration of the citizen, of whatever kind it may be, and therefore not to urge the right which per se belongs to anyone, namely, not to be impeded from obtaining a good by an unjust means. Besides, true deception will not easily be present; indeed, even a lie can be prevented by the use of restriction.

Corollary IV. Finally, observe that those are not taxes which must be paid to the State on account of services which it furnishes in favor of private persons, for example in transporting persons, letters, or goods. Here rather there is a contract. Yet very many things which are established by administrators can sufficiently probably be held as merely penal dispositions, for example, that money not be inserted in ordinary letters, or letters inserted in other things to be transported; that one person not set out with the same ticket and another return with it, etc.

I. Notion. Succession tax is a tax which heirs must pay to the treasury from an inheritance obtained.

Taxes.—Citizens owe the government particularly the tribute of taxation, and in war that of military service. Taxes are contributions exacted by the public authority from subjects for the purpose of defraying public expenses or promoting the public welfare.

(a) Thus, they are contributions, and hence a tax is not to be confused with a payment (e.g., fares for passage on government railroads), or with a fine (e.g., pecuniary penalty for evasion of customs).

(b) They are exacted from subjects (i.e., from citizens), who are subject on account of their persons as being members of the State, and from aliens, who are subject on account of their goods, as receiving privileges of residence, commerce, passage, etc.

Kinds of Taxes.—There are many kinds of taxes, but they can all be reduced to two general categories.

(a) Direct taxes are those collected from the person on whom the burden is ultimately to fall. Examples are poll or personal taxes and property taxes (such as those on general property, incomes or inheritances), for these charges remain an expense of the taxpayer himself.

(b) Indirect taxes are those collected from a person other than the one on whom the burden is ultimately to fall. Examples are duties imposed on outsiders (such as customs or tariffs, duties raised for revenues, protection, etc.), external revenue taxes imposed on certain acts (such as the manufacture or sale of commodities) or occupations (e.g., licenses for trades, sports, etc.). In these the charge falls immediately on the taxpayer, but ultimately on a consumer.

Just Taxes.—Tax laws, like other laws, must be just; that is, they must be made by lawful authority and must promote the common good (see 285). The common good requires that taxes be not imposed except for just reasons, and that there be a fair distribution of the burden.

(a) Just reasons are those of public utility or necessity. A tax would be unjust, if it were levied for unjust or unnecessary purposes.

(b) Fair distribution requires that citizens be assessed according to their ability to pay (sacrifices for the public good, special benefits from the use of a tax fund, etc.).

Obligation to Pay Taxes.—The obligation in conscience of just tax laws is admitted by all Catholic authorities.

(a) The teaching of Scripture is quite clear, since Our Lord, in answer to the question whether it were lawful to pay tribute to Caesar, replied: “Render to Caesar the things that are Caesar’s” (Matt., xxii. 17-21); and St. Paul teaches: “Be subject of necessity, not only for wrath, but also for conscience’ sake. Render therefore to all men their due, tribute to whom tribute is due, custom to whom custom” (Rom., xiii. 5, 6).

(b) Reason too shows the need of obligation in conscience, for, unless these laws oblige thus, the common good will suffer through lack of money needed for public purposes, and some individuals will be unjustly burdened and others unjustly favored.

Obedience to Tax Laws.—Obedience to just laws is owed either from legal justice alone, or also from commutative justice with the burden of restitution. There are various opinions about the case of tax laws.

(a) According to the traditional opinion, the obligation is one of commutative justice, because there is an implicit contract between the government and the people, in virtue of which the former is bound to provide for the safety of the people at home and abroad and to secure those things that are necessary for the common welfare (such as roads, postal service, etc.), while the latter are bound in return to pay the expenses of the government.

(b) According to a recent opinion, the obligation is one of legal justice only, because the imposition of taxes is an exercise of authority by the government, and taxes themselves have the character of a tribute from the part to the whole rather than of a wage or payment. Hence, though he who evades taxes is not held to restitution, he sins against justice, and sins gravely if the matter is considerable.

(c) According to other opinions, tax laws oblige sometimes from legal, sometimes from commutative justice. Thus, some admit that in feudal times there was a contract between the governed and the ruler, and therefore an obligation of commutative justice to give services and taxes; but in modern times they say there is no such contract, and the duties of ruler and subjects rest on natural law and legal justice, not on any compact. Others again distinguish between the obligation before the quota has been determined, which is the duty of legal justice to declare properly the value of one’s property, and the obligation after assessment, which is a duty of commutative justice to pay just tax bills.

"That Christians are bound to the observance of civil laws, even if these have been enacted by unbelieving Princes, provided that these are not opposed to the Christian Religion and to the moral doctrine of the Gospel, there is no room for doubt; nor does the Apostle leave any room for doubt, who, making no distinction among higher powers, says: Let every soul be subject to higher powers: for there is no power except from God... Therefore he who resists the power resists the ordinance of God; but those who resist acquire damnation for themselves... Therefore be subject of necessity, not only because of wrath, but also because of conscience. Rom. 13, v. 1 and following.

From this most clear testimony it is manifest that those who rule supreme in civil government can enact laws for their subjects which bind them even in conscience; and this is also urged by the reason of the public good, namely, of warding off from civil societies the monster of anarchy, worse than dog and serpent; and it is commended by the illustrious examples of the first Christian faithful, who obeyed the civil laws of gentile Princes as long as they could do this without loss to faith and good morals.

Although these things are most true, nevertheless, with regard to the law forbidding the trade in opium, many doubts can arise because of the various opinions of Theologians concerning the obligation of civil laws; and since the solution of these is not very easy, in particular cases they can trouble not a little the mind of Missionaries and Confessors. The Sacred Congregation has learned from their letters that this has happened several times.

For there are very many Theologians, and these also of the highest name, who judge that there are civil laws whose transgression indeed has a penalty annexed, but by no means also theological guilt, and which therefore they call purely penal. These do not deny what is clear from the cited testimony of St. Paul, that supreme rulers can enact laws which bind subjects in conscience, that is, not only to the penalty but also to theological guilt; but they contend that they do not always will this by their laws, and that those laws are purely penal. According to this doctrine, which seems to be more common among Theologians, it can be doubted whether the civil law forbidding in your regions the trade in opium is a law having theological guilt annexed, or rather is a merely penal law, excluding all theological guilt. It could seem that this latter ought rather to be judged, from the fact that that law was enacted by an unbelieving Prince, who, since he can rightly be thought to make no account of that which Christians call obligation in conscience and theological guilt, seems to have wished to compel his subjects to the observance of that law by the penalty indeed and by its severity, but by no means by fear of wounding conscience and of theological guilt.

Nor does the most grave penalty of death against transgressors of that law seem a sufficient reason to show that it binds also to guilt, and not merely to penalty, because, as Roncaglia says, it is many times expedient for the common good that those also be punished with most grave penalties who violate some law without theological guilt. Thus Theologians commonly admit that a defendant can, without theological guilt, break out of prison in order to avoid, for example, death; yet the civil laws punish this most gravely. Hence from such penalties the intention of the legislator to bind to theological guilt is not sufficiently gathered. Tract. 3, On Laws, q. 2, c. 2, resp. 2, ad 9. 2.

But even if it be supposed that the aforesaid law enacted against the trade in opium binds also in conscience, nevertheless it would not follow from this that its violation in all circumstances brings theological guilt with it; for human laws, ordinarily speaking, do not oblige with grave harm to oneself to their observance. This has place in the divine laws themselves. Thus the observance of the Sabbath in the Old Law, and abstinence from blood, did not oblige with danger to life (St. Thomas, I-II, q. 100, a. 8; Suarez, bk. 3, On Laws), and in the New Law the law concerning the integrity of Confession, concerning the reception of the Sacraments, etc., does not oblige with the same danger.

Since these things are so, the mind of the Sacred Congregation is not to define those controversies of Theologians concerning a merely penal law, nor, on the supposition of the existence of laws of this kind, whether the law about which there is here discussion is to be counted among their number. Likewise, considering that a human law, although ordinarily speaking it does not oblige with grave harm, can nevertheless oblige with grave harm when a great public good requires it, which is the supreme law; and likewise considering that this necessity of the public good depends on circumstances which accompany the particular cases that can occur, all of which it is impossible to foresee; therefore it comprises this Instruction in two admonitions to be given to the Missionaries and Confessors of your Vicariate: namely, it teaches and wills that, in the resolutions of the various cases which can happen, they ought not to disregard, but ought to take great account of, the civil law forbidding the trade in opium; secondly, it wills that great account also be taken of the most grave evils which are accustomed to flow from the abuse of opium in the regions of your Vicariate.

As regards the first of these, it is an established matter that public order is guarded by civil laws, that the public good depends very greatly on the observance of the same laws, and that everything is overturned in that society whose citizens do not obey its laws. This reason is very weighty in the regions of your Vicariate, where violations of civil laws on the part of Christians could bring the greatest scandal, and stir up hatred in the civil government against Christians and their Religion, as though they were taught by the Religion which they profess to disturb public order by the violation of civil laws, and at the same time to violate the rights of sovereignty.

But as regards the second, this ought to be very well known in relation to Christians, whose Religion is founded wholly on charity, not only toward God but also toward neighbor. For this teaches that each person is bound to ward off evils from his neighbor, whom he is bound by divine law to love as himself. This law of charity toward neighbor indeed has its limits, but those limits are the broader in proportion as the evils to be removed from him are more numerous and more grave. But there are very many and very grave evils, both temporal and spiritual, which flow from the abuse of opium in the regions of your Vicariate, and which can be removed by the observance of the law prohibiting the trade in opium.

If, therefore, the Missionaries and Confessors of your Vicariate have these two things before their eyes, as the Sacred Congregation wills them to have them before their eyes, it will not be very difficult for them to know what they ought to answer and do in particular cases which can happen to them in relation to the observance or violation of the aforesaid law, and to find the way by which they can extricate themselves from perplexities and avoid anxieties of mind." Instr. S. C. de P. F. 23 June 1830.

Cf. the preceding number, paragraph beginning But, and following.

"Children after the seventh year are bound to observe the quality of foods prescribed by the Church." S. Poenit. 15 March 1837.

"Although practice and prudence teach that occult cases pertaining to the Forum of Conscience are to be proposed to the Sacred Penitentiary by sealed letters sent to the Most Eminent Lord Cardinal Major Penitentiary and with names withheld, nevertheless someone, whether from among Confessors or from among pastors of souls, departing from this practice, sometimes does not shrink from not only setting forth those cases by open letters and through procurators, even laymen, but also from narrating them to the same Procurators, so that concerning them they may compose supplicatory petitions to be presented to the Sacred Penitentiary. How unbecoming this is, and how much scandal it carries before itself, there is no one who does not see. Therefore the Sacred Penitentiary, wishing wholly to remove this entirely reprehensible manner of acting from the midst, gravely admonishes all and each of the Confessors and Pastors of souls that they entirely abstain from the aforesaid manner of having recourse. Moreover, if they wish to use the service of some Procurator in the gracious City, they will indeed be able to send to that Procurator sealed letters, with names suppressed, to be handed to the aforementioned Cardinal Major Penitentiary; but they must never and in no way dare to narrate or manifest the aforesaid cases to be proposed to the Sacred Penitentiary." Cf. Acta S. Sed. Vol. 7, pp. 208-209; Vol. 1, p. 126 ff.

Cf. Bizzarri, Collectan., ed. 1885, p. 612.

"Whether decrees issued by the S. R. C., and whatever responses, formally issued in writing by it to proposed doubts, have the same authority as if they proceeded immediately from the Supreme Pontiff himself, even though no report concerning them was made to His Holiness? - Resp. In the affirmative." S. R. C. 23 May 1846, with the approval of His Holiness, 17 July 1846. Decrees and responses inserted in the authentic collection of Gardellini are to be held as formally issued. S. R. C. 6 Sept. 1854.

"The decrees of the S. R. C. which, although they do not stand forth in the Gardellinian Edition, are nevertheless known to be authentic, have the same authority which those retain that are read in the said Edition, provided that these Decrees, placed outside the Collection of Gardellini, are not opposed to later Decrees contained in the same Collection." S. R. C. 10 Dec. 1870.

"Whether decrees of the S. R. C., when they are issued, derogate from any contrary introduced custom whatever, even immemorial, and, in the affirmative case, oblige in conscience? - Resp. In the affirmative, but recourse must be had in the particular case." S. R. C. 11 Sept. 1847.

"Whether decrees, indults, and decisions of the Sacred Congregation of Rites, given or to be given in particular cases, are applicable and to be adopted in similar cases, as though they had been decided everywhere, especially because the Sacred Congregation itself seems to hint at this when, to proposed doubts, it is accustomed to respond: Let the Decrees be given, according to other Decrees, provided for in one case, etc. - Resp. In the negative, and recourse must always be had in particular cases." S. R. C. 8 April 1854. Cf. Acta S. Sed. Vol. 3, p. 563 ff.

"With the distinction presupposed of the Decrees of the Sacred Congregation of Rites into Decrees formally general, equivalently general, and particular, can the opinion be sustained... that only those Decrees oblige universally which are either formally general or equivalently general, so that they were not issued on account of a peculiar cause of some place or Diocese, and in addition the approval of the Supreme Pontiff has acceded? - Resp. Let him consult approved authors." S. R. C. 10 Dec. 1870. Acta S. Sed. Vol. 12, p. 144.

On the extension of Resolutions of the Sacred Penitentiary and of the Holy Office from case to case, cf. On the Sixth Precept of the Church, n. 513; On Particular States, n. 1; On Indulgences and Jubilee, n. 1074.

"Holding the Index by these Our Letters as expressly inserted, by Apostolic authority, by the tenor of the present letters, we approve and confirm it, and we command and order that it be observed inviolably and unshakenly by all and singular persons, wherever in the world they exist, under penalties," etc. Benedict XIV, Brief Quae ad catholicae, 23 Dec. 1757.

Cf. N. 84.

"... Therefore we have judged it good by the present Constitution, in order that abuses may be met, to declare what and of what sort a legitimate custom according to the canons ought to be, by which episcopal and ecclesiastical courts can have the right of taking cognizance of and judging the criminal causes of lay defendants. Therefore we order that not every custom for this purpose, but only that custom, have force which is both forty years old and perpetually constant, not indeed contradicted or interrupted. Moreover, we will that it be constituted by a multiplicity and frequency of acts, not slight but grave, which are known to have been performed with the intention of prescribing secular jurisdiction, not tolerated from favor or connivance; nor such acts as perhaps could have taken place apart from the certain and precise knowledge either of Us and of Our Successors for the time being, or at least of the supreme magistrates of this Our City, whom we are accustomed especially to set over the prosecution of the public vindication of crimes. We command that absolutely no account be taken, in a matter so grave, of the knowledge and patience of local rectors and of other inferior secular magistrates, to whom, when they are sometimes either negligent, or conniving and tolerating out of a certain reverential fear, we establish that it is not lawful, and has not been lawful, by their favor, acquiescence, and patience, to make legitimate a custom by which the jurisdiction entrusted to them is diminished, with the order of both powers disturbed. If, therefore, a custom such as we have now established is brought forward, we will that it be kept and observed; but a custom introduced otherwise we reprove, and by this Our Constitution we decree it to be of no force..." Clement XIII, Const. Praestat Romanum.

"To establish as the supreme law the will of the people, manifested by what they call public opinion or in some other manner, released from every divine and human law; and, in the political order, to hold that accomplished facts, by the very fact that they have been accomplished, have the force of law." Proposition condemned by Pius IX, Encyclical Quanta cura.

"56. Moral laws do not require a divine sanction, and there is no need whatever that human laws be conformed to the law of nature or receive their binding force from God. - 57. The science of philosophical and moral matters, and likewise civil laws, can and ought to depart from divine and ecclesiastical authority. - 58. No other forces are to be acknowledged except those which are placed in matter, and every discipline and uprightness of morals ought to be placed in accumulating and increasing riches by every means and in satisfying pleasures. - 60. Authority is nothing other than the sum of number and material forces." Propositions condemned by Pius IX, Syllabus.

"28. It is not lawful for Bishops, without the permission of the government, to promulgate even Apostolic Letters themselves." Proposition condemned by Pius IX, Syllabus.

"11. The proposition asserting that, according to the ancient institution of our forefathers, derived from Apostolic times and preserved through the better ages of the Church, it was received that decrees, definitions, or sentences even of the greater Sees were not accepted unless they had been examined and approved by a diocesan Synod: false, rash, derogatory in its generality from the obedience due to Apostolic Constitutions and also to sentences emanating from a legitimate superior hierarchical power, fostering schism and heresy." Proposition of the Synod of Pistoia condemned by Pius VI.

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

Cf. n. 180, paragraph Legislative Power of the Church; n. 184.

"38. The decretal epistles are apocryphal and lead away from the faith of Christ; and the clerics who study them are foolish." Proposition of John Wycliffe condemned by the Council of Constance.

"1. Some commandments of God are impossible to just men willing and striving according to the present powers which they have; the grace by which they might become possible is also lacking to them. Declared and condemned as rash, impious, blasphemous, deserving condemnation by anathema, and heretical." Proposition of Cornelius Jansen condemned by Innocent X.

"19. Likewise, the things which it adds, that man under the law, since he was powerless to observe it, became a transgressor, not indeed through the fault of the law, which was most holy, but through the fault of man, who under the law without grace became more and more a transgressor; and it further adds that the law, if it did not heal the heart of man, caused him to know his own evils and, convicted of infirmity, to desire the grace of the Mediator: in this part it generally insinuates that man became a transgressor through the non-observance of a law which he was powerless to observe, as though He who is just could have commanded something impossible, or He who is merciful were to condemn man for that which he could not avoid; ... false, scandalous, impious, condemned in Baius." Proposition of the Synod of Pistoia condemned by Pius VI.

"54. This definitive sentence, that God commanded man nothing impossible, is falsely attributed to Augustine, since it is Pelagius's." Proposition of Michael Baius condemned by St. Pius V. Cf. nn. 180, 183.

"Whether decrees issued by the Sacred Congregation of Rites, and whatever responses formally issued in writing by it to proposed doubts, have the same authority as if they proceeded immediately from the Supreme Pontiff himself, although no report concerning them was made to His Holiness? - Resp. In the affirmative." S. R. C., 23 May 1846, n. 2916. - Decrees subscribed by the Prefect and Secretary of the S. R. C. and furnished with its seal are to be held as formally issued in writing; nor is it required that they be promulgated either at Rome or by Bishops in their dioceses. Decrees inserted in the Authentic Collection are to be held as formally issued. - S. R. C., 8 April 1854, n. 3023.

"6. The difference between the Jewish and Christian covenants is that, in the former, God demands flight from sin and fulfillment of the law from the sinner, leaving him in his powerlessness; but in the latter God gives the sinner that which He commands, by purifying him with His grace. - 7. What advantage was there for man in the old covenant, in which God left him to his own infirmity, imposing His law upon him? But what happiness is it not to be admitted to a covenant in which God gives us that which He asks of us? - 8. We do not belong to the new covenant except insofar as we are sharers in that new grace which works in us that which God commands us. - 63. One baptized is still under the law like a Jew if he does not fulfill the law, or fulfills it from fear alone." Propositions of Pasquier Quesnel condemned by Clement XI.

"The legal observances of the Old Testament, or the ceremonies, sacred rites, sacrifices, and sacraments of the Mosaic law, ceased when the Lord Jesus Christ came, and after the promulgation of the Gospel cannot be observed without sin." Profession of Faith for the Orientals prescribed by Urban VIII and Benedict XIV, Constitution Nuper ad nos.

"The sacrosanct Roman Church, founded by the voice of our Lord and Savior.... Firmly believes, professes, and teaches that the legal observances of the Old Testament, or of the Mosaic law, which are divided into ceremonies, sacred rites, sacrifices, and sacraments, because they were instituted for the sake of signifying something future, although they were suitable for divine worship in that age, ceased when the Lord Jesus Christ, who was signified through them, came, and the sacraments of the New Testament began. It teaches that anyone who, even after the Passion, places hope in the legal observances and subjects himself to them as necessary for salvation, as though faith in Christ could not save without them, has sinned mortally. It does not, however, deny that from the Passion of Christ until the promulgation of the Gospel they could have been observed, provided that they were in no way believed necessary for salvation; but after the promulgation of the Gospel it asserts that they cannot be observed without the loss of salvation. Therefore, after that time, it declares all observers of circumcision, the Sabbath, and the other legal observances alien from the faith of Christ and wholly unable to be participants in eternal salvation unless at some time they recover from those errors. Therefore it commands absolutely all who glory in the Christian name, at whatever time, whether before or after Baptism, to cease from circumcision, because, whether one places hope in it or not, it cannot be observed at all without the loss of eternal salvation....

"It firmly believes, professes, and proclaims that every creature of God is good and nothing is to be rejected which is received with thanksgiving, because, according to the word of the Lord, not that which enters into the mouth defiles a man; and it asserts that the distinction of the Mosaic law between clean and unclean foods belongs to the ceremonial observances, which passed away when the Gospel arose and ceased to be efficacious. It also says that the Apostles' prohibition from things sacrificed to idols, and from blood, and from that which was strangled was suitable to that time, when one Church was arising from Jews and Gentiles who previously lived by diverse ceremonies and customs, so that the Gentiles also might observe something in common with the Jews, and that an occasion might be offered for coming together in the one worship and faith of God, and the material of dissension might be removed: for, because of ancient custom, blood and that which was strangled seemed abominable to the Jews, and from the eating of things sacrificed to idols the Gentiles could be thought likely to return to idolatry. But when the Christian religion had been propagated to such a point that no Jew appeared in it, but all who passed over to the Church came together in the same rites and ceremonies of the Gospel, believing all things clean to the clean, then, when the cause of that Apostolic prohibition ceased, its effect also ceased. It therefore declares that no nature of food which human society admits is to be condemned; nor is any distinction to be made among animals by anyone, whether man or woman, and by whatever manner of death they perish; although for the health of the body, for the exercise of virtue, and for regular and ecclesiastical discipline many things not forbidden can and ought to be set aside, because, according to the Apostle, all things are lawful, but not all things are expedient." Decree for the Jacobites, or of Eugene IV, Cantate Domino.

"20. If anyone shall say that a justified man, however perfect, is not bound to the observance of the commandments of God and of the Church, but only to believe, as though the Gospel were a bare and absolute promise of eternal life without the condition of observing the commandments: let him be anathema. - 21. If anyone shall say that Christ Jesus was given by God to men as a Redeemer in whom they are to trust, but not also as a Legislator whom they are to obey: let him be anathema. - 7. If anyone shall say that by Baptism itself the baptized are made debtors only of faith alone, but not of the entire law of Christ to be observed: let him be anathema. - 8. If anyone shall say that the baptized are free from all the precepts of holy Church which are either written or handed down, so that they are not bound to observe them unless they should wish of their own accord to submit themselves to them: let him be anathema." Council of Trent, sess. 6, canons; sess. 7, canons on Baptism. Cf. n. 74.

"4. The proposition asserting that it would be an abuse of the authority of the Church to transfer it beyond the limits of doctrine and morals, and to extend it to exterior things, and to exact by force that which depends upon persuasion and the heart; and also, much less, that it pertains to her to exact by exterior force subjection to her decrees: insofar as, by those indeterminate words extending it to exterior things, it brands as an abuse of the authority of the Church the use of that power received from God which the Apostles themselves used in establishing and sanctioning exterior discipline: heretical. - 5. In the part in which it insinuates that the Church does not have authority to exact subjection to her decrees otherwise than by means which depend upon persuasion; insofar as it intends that the Church does not have a power conferred upon her by God not only of directing by counsels and persuasions, but also of commanding by laws, and of restraining and compelling the wayward and contumacious by exterior judgment and salutary penalties; from the Brief Ad assiduas of Benedict XIV, in the year 1755, to the Primates, Archbishops, and Bishops of the Kingdom of Poland: introducing into a system a doctrine otherwise condemned as heretical." Propositions of the Synod of Pistoia condemned by Pius VI.

"15. Ecclesiastical obedience is obedience according to the invention of the priests of the Church apart from the express authority of Scripture." Proposition of John Hus condemned by the Council of Constance.

"The laws of the Church do not bind in conscience unless they are promulgated by the civil power; - The acts and decrees of the Roman Pontiffs concerning religion and the Church require the sanction and approval, or at least the assent, of the civil power; - Apostolic Constitutions by which secret societies are condemned, whether an oath concerning the keeping of secrecy is or is not required in them, and their followers and supporters are punished with anathema, have no force in those regions of the world where associations of this kind are tolerated by the civil government; - The excommunication imposed by the Council of Trent and the Roman Pontiffs upon those who invade and usurp the rights and possessions of the Church rests upon a confusion of the spiritual order with the civil and political order, solely for the pursuit of worldly good; - The Church ought to decree nothing which can bind the consciences of the faithful in relation to the use of temporal things; - The Church has no right to restrain violators of her laws by temporal penalties; it is conformable to the principles of sacred Theology and public law for the civil government to assert and claim ownership of goods possessed by Churches, religious families, and other pious places. - Assent and obedience can be refused without sin and without any loss of Catholic profession to those judgments and decrees of the Apostolic See whose object is declared to pertain to the general good of the Church and to her rights and discipline, provided that it does not touch dogmas of faith and morals." Propositions condemned by Pius IX, Encyclical Quanta cura.

"That those who are in the aforesaid degree of perfection and spirit of liberty (namely, because they cannot sin or grow further in perfection) are not subject to human obedience, nor are bound to any precepts of the Church; because, as they assert, where the Spirit of the Lord is, there is liberty." Condemned as error, Clementine Ad nostrum, 3, De Haereticis.

"14. The Doctors who maintain that anyone who is to be corrected by ecclesiastical censure, if he should refuse to be corrected, is to be handed over to the secular judgment, certainly follow in this the Pontiffs, Scribes, and Pharisees, who handed Christ over to the secular judgment when He would not obey them in all things, saying: It is not lawful for us to put anyone to death; and such men are more grievous murderers than Pilate." Article of John Hus condemned by the Council of Constance.

"24. The Church does not have the power of employing force, nor any temporal power, direct or indirect." Proposition condemned by Pius IX, Syllabus.

Cf. the preceding paragraph, The Legislative Power of the Church.

"8. If the Pope is foreknown as reprobate and evil, and consequently a member of the devil, he does not have power over the faithful given to him by anyone, unless perhaps by Caesar. - 9. After Urban VI no one is to be received as Pope, but one must live in the manner of the Greeks under one's own laws. - 37. The Roman Church is the synagogue of Satan, and the Pope is not the proximate and immediate Vicar of Christ and the Apostles." Propositions of John Wycliffe condemned in the Council of Constance. Cf. also articles 24 and 25, concerning which those suspected of the errors of Wycliffe and Hus are to be questioned by mandate of Martin V, Bull Inter cunctas; propositions 9-13, 20, 22-24, 26-29 of John Hus condemned by the Council of Constance.

"27. It is certain that it is entirely outside the power of the Church or the Pope to establish articles of faith, indeed even laws of morals or of good works." Proposition of Martin Luther condemned by Leo X, Bull Exsurge Domine, 16 May 1520.

Cf. the following paragraph, The Power of Bishops.

"... All the more deplorable is the headlong and blind temerity of the man who, in his ill-fated little book, endeavored to restore errors condemned by so many decrees; who said and everywhere insinuated through many circumlocutions: that every Bishop called by God to the government of the Church is no less than the Pope and is endowed with no lesser power; that Christ of Himself gave the same power to all the Apostles; that whatever some believe can be obtained and conceded by the Pontiff alone can equally be obtained by any Bishop, whether it depends upon consecration or upon ecclesiastical jurisdiction; that Christ willed the Church to be administered in the manner of a republic; that this government indeed requires a president for the good of unity, but one who may not dare to involve himself in the affairs of others who govern together with him; nevertheless, that he has the privilege of exhorting the negligent to fulfill their duties; that the force of the primacy is contained in this one prerogative of supplying for the negligence of others and providing for the preservation of unity by exhortations and example; that the Pontiffs can do nothing in another's diocese except in an extraordinary case; that the Pontiff is the head who receives his force and firmness from the Church; that the Pontiffs made it lawful for themselves to violate the rights of Bishops and to reserve to themselves absolutions, dispensations, decisions, appeals, collations of benefices, and, in a word, all other offices, which he enumerates individually and denounces as undue reservations injurious to Bishops." Pius VI, Brief Super soliditate, 28 Nov. 1786, by which Eybel's book What Is the Pope? is condemned.

"6. The doctrine of the Synod, by which it professes itself persuaded that a Bishop has received from Christ all the rights necessary for the good government of his diocese, just as if superior ordinances pertaining either to faith and morals or to general discipline, the right of which belongs to the Supreme Pontiffs and General Councils for the universal Church, were not necessary for the good government of each diocese: schismatic, at least erroneous. - 7. Likewise, in that it exhorts the Bishop to pursue vigorously the more perfect constitution of ecclesiastical discipline, and this against all contrary customs, exemptions, and reservations which are opposed to the good order of the diocese, the greater glory of God, and the greater edification of the faithful: by that which it supposes, that it is lawful for a Bishop by his own judgment and will to establish and decree against customs, exemptions, and reservations, whether those which have place in the universal Church or even in any province, without the permission and intervention of the superior hierarchical power by which they were introduced or approved and have the force of law: leading into schism and the subversion of hierarchical government, erroneous. - 8. Likewise, in that it also says that it is persuaded that the rights of a Bishop received from Jesus Christ for governing the Church can neither be altered nor impeded, and, when it has happened that the exercise of these rights has been interrupted for any cause, the Bishop can and ought always to return to his original rights whenever the greater good of his Church requires it: insofar as it insinuates that the exercise of episcopal rights can be hindered or restrained by no superior power whenever a Bishop by his own judgment shall have deemed this less expedient for the greater good of his Church: leading into schism and the subversion of hierarchical government, erroneous." Propositions of the Synod of Pistoia condemned by Pius VI.

"1. Whether Bishops lawfully assembled in either a Plenary or a Provincial Council are to be considered to possess true legislative power? - 2. Whether decrees of either Plenary or Provincial Councils, confirmed, approved, or at least reviewed by the Holy See in either common or specific form, lack every force unless they have already been incorporated into diocesan statutes; and indeed have force only insofar as they have thus been incorporated? - Resp. To the 1st, in the affirmative. To the 2nd, in the negative, and according to the mind." Holy Office, 10 Sept. 1896.

"9. The doctrine which establishes that the reformation of abuses concerning ecclesiastical discipline ought in diocesan Synods to depend equally upon and be established by the Bishop and the parish priests, and that without freedom of decision there would be undue subjection to the suggestions and commands of the Bishops: false, rash, injurious to episcopal authority, subversive of hierarchical government, favoring the Arian heresy renewed by Calvin. - 10. Likewise, the doctrine by which parish priests or other priests assembled in a Synod are declared together with the Bishop to be judges of faith, and at the same time it is insinuated that judgment in causes of faith belongs to them by their own right, and indeed even by reason of ordination received: false, rash, subversive of the hierarchical order, derogatory from the firmness of the definitions or dogmatic judgments of the Church, at least erroneous." Propositions of the Synod of Pistoia condemned by Pius VI.

Cf. also proposition 11 reported above at n. 168.

"That Christians are bound to the observance of civil laws, even if these have been enacted by unbelieving princes, provided that they are not opposed to the Christian religion and to the moral doctrine of the Gospel, there is no room for doubt; nor does the Apostle leave any room for doubt, who, making no distinction among higher powers, says: Let every soul be subject to higher powers: for there is no power except from God.... Therefore he who resists the power resists the ordinance of God; but those who resist acquire damnation for themselves.... Therefore be subject of necessity, not only because of wrath, but also because of conscience. Rom. 13, v. 1 ff.

"From this most clear testimony it is manifest that those who rule supreme in civil government can enact laws for their subjects which bind them even in conscience; and this is also urged by the reason of the public good, namely, of warding off from civil societies the monster of anarchy, worse than dog and serpent; and it is commended by the illustrious examples of the first Christian faithful, who obeyed the civil laws of gentile princes as long as they could do this without loss to faith and good morals.

"Although these things are most true, nevertheless, with regard to the law forbidding the trade in opium, many doubts can arise because of the various opinions of theologians concerning the obligation of civil laws; and since the solution of these is not very easy, in particular cases they can trouble not a little the mind of missionaries and confessors. The Sacred Congregation has learned from their letters that this has happened several times.

"For there are very many theologians, and these also of the highest name, who judge that there are civil laws whose transgression indeed has a penalty annexed, but by no means also theological guilt, and which therefore they call purely penal. These do not deny what is clear from the cited testimony of St. Paul, that supreme rulers can enact laws which bind subjects in conscience, that is, not only to the penalty but also to theological guilt; but they contend that they do not always will this by their laws, and that those laws are purely penal. According to this doctrine, which seems to be more common among theologians, it can be doubted whether the civil law forbidding in your regions the trade in opium is a law having theological guilt annexed, or rather is a merely penal law, excluding all theological guilt. It could seem that this latter ought rather to be judged, from the fact that that law was enacted by an unbelieving prince, who, since he can rightly be thought to make no account of that which Christians call obligation in conscience and theological guilt, seems to have wished to compel his subjects to the observance of that law by the penalty indeed and by its severity, but by no means by fear of wounding conscience and of theological guilt.

"Nor does the most grave penalty of death against transgressors of that law seem a sufficient reason to show that it binds also to guilt, and not merely to penalty, because, as Roncaglia says, it is many times expedient for the common good that those also be punished with most grave penalties who violate some law without theological guilt. Thus theologians commonly admit that a defendant can, without theological guilt, break out of prison in order to avoid, for example, death; yet the civil laws punish this most gravely. Hence from such penalties the intention of the legislator to bind to theological guilt is not sufficiently gathered. Tract. 3, On Laws, q. 2, c. 2, resp. 2, ad 9. 2.

"But even if it be supposed that the aforesaid law enacted against the trade in opium binds also in conscience, nevertheless it would not follow from this that its violation in all circumstances brings theological guilt with it; for human laws, ordinarily speaking, do not oblige with grave harm to oneself to their observance. This has place in the divine laws themselves. Thus the observance of the Sabbath in the Old Law, and abstinence from blood, did not oblige with danger to life (St. Thomas, I-II, q. 100, a. 8; Suarez, bk. 3, On Laws), and in the New Law the law concerning the integrity of confession, concerning the reception of the sacraments, etc., does not oblige with the same danger.

"Since these things are so, the mind of the Sacred Congregation is not to define those controversies of theologians concerning a merely penal law, nor, on the supposition of the existence of laws of this kind, whether the law about which there is here discussion is to be counted among their number. Likewise, considering that a human law, although ordinarily speaking it does not oblige with grave harm, can nevertheless oblige with grave harm when a great public good requires it, which is the supreme law; and likewise considering that this necessity of the public good depends on circumstances which accompany the particular cases that can occur, all of which it is impossible to foresee; therefore it comprises this Instruction in two admonitions to be given to the missionaries and confessors of your Vicariate: namely, it teaches and wills that, in the resolution of the various cases which can happen, they ought not to disregard, but ought to take great account of, the civil law forbidding the trade in opium; secondly, it wills that great account also be taken of the most grave evils which are accustomed to flow from the abuse of opium in the regions of your Vicariate.

"As regards the first of these, it is an established matter that public order is guarded by civil laws, that the public good depends very greatly on the observance of the same laws, and that everything is overturned in that society whose citizens do not obey its laws. This reason is very weighty in the regions of your Vicariate, where violations of civil laws on the part of Christians could bring the greatest scandal and stir up hatred in the civil government against Christians and their religion, as though they were taught by the religion which they profess to disturb public order by the violation of civil laws, and at the same time to violate the rights of sovereignty.

"But as regards the second, this ought to be very well known in relation to Christians, whose religion is founded wholly on charity, not only toward God but also toward neighbor. For this teaches that each person is bound to ward off evils from his neighbor, whom he is bound by divine law to love as himself. This law of charity toward neighbor indeed has its limits, but those limits are the broader in proportion as the evils to be removed from him are more numerous and more grave. But there are very many and very grave evils, both temporal and spiritual, which flow from the abuse of opium in the regions of your Vicariate, and which can be removed by the observance of the law prohibiting the trade in opium.

Whether and how do the laws of taxes oblige in conscience? A tax is called that which is paid to the State as necessary for the common expenses of the commonwealth. It is direct if it is imposed directly on persons, by reason of their immovable goods, movable goods, and the exercise of some business, art, or profession. It is indirect if it is imposed directly not on the person but on a certain thing, on account of the change of its owners, as in successions, or on account of its transport from region to region, or on account of its trade, manufacture, sale, or use. Wherefore those things which are paid even to public administrations for transporting letters from place to place, for journeys of persons on railways, etc., do not have the nature of taxes; and they are to be paid by force of the contract entered into with the public administration, and consequently from commutative justice.

The laws of taxes, speaking in themselves, are moral laws, or commanding in conscience: those, namely, which are enacted by legitimate authority, from a just cause of the common good, of the support and dignity of the Prince, and with due proportion observed, so that they do not exceed the moral capacity of subjects, and so that, e.g., the poor are not burdened as the rich, for thus the former would sustain a far greater burden than the latter. Lugo, de Iust. et Iur., d. 36, n. 25, 26. Indeed laws of this sort command an act of natural justice, namely of legal justice, only defining and determining it; by which both the Prince and subjects are held, each for his own part, to contribute the necessary supports to society. Wherefore this natural justice commands subjects to furnish to the superior, having care of the community, those things which are necessary for having this care; it likewise commands strangers that they ought to compensate the harms which they inflict on another society by the export and sale of goods; it commands both subjects and strangers that they ought to compensate the necessary expenses in the construction and keeping of roads, bridges, etc., which they enjoy. Rom. 13:5-7. Hence the aforesaid legal justice is intimately connected with commutative justice.

Whence it is that defrauding taxes, at least speaking in itself, brings an obligation of restitution, as Gousset expressly has, 671, 999. And the Roman Catechism, 10, counts it among robberies: "In this crime of rapacity are included those who do not pay, or who divert and transfer to themselves, the customs, taxes, tithes, and the rest of this kind which are owed to the Prelates of the Church and to Magistrates." Nevertheless, since collectors of these taxes are publicly constituted, this seems to be the mind of legislators, that the payment of taxes is not considered due unless it is demanded. By no means, however, are lies and frauds thereby permitted for not paying, and for deceiving the collectors. Likewise, since a grave penalty is imposed on those not paying, many and grave doctors generally hold the laws concerning taxes as merely penal laws. But from this it does not follow that someone ought not to pay just taxes when the time established by law has arrived, or when they are legitimately sought by collectors; but it follows only that unless observance of the law is urged, or unless they are legitimately sought, he is not indeed held in conscience to pay them, and he is held to undergo the penalty if he is discovered not to have paid the tax and the penalty is imposed. Wherefore someone sins only then when, a tax owed by law not having been paid, or a duty not having been paid, as regards taxes sought by collectors, he would afterward be unwilling to pay the fine and undergo the penalty.

And this opinion is also confirmed by common practice and persuasion, namely that these laws do not oblige in conscience to paying taxes spontaneously. Therefore, while at least doubt remains concerning the obligation, no one seems even from this head to be troubled, if he has not paid taxes at the time established by law, or taxes not yet sought by collectors; indeed even if, as regards these latter, someone merely eludes the vigilance of collectors, by hiding things or not declaring them, namely lest they demand payment, as even timorous persons are accustomed to do, or by declaring a lesser value of things in order to diminish the tax; provided nevertheless that lies and frauds are absent, which are always illicit, and that at least the just lowest price of the things is declared. L. l. 3, n. 614, 617; H. A. tr. 10, n. 81; S. Th. Quodl. 2, a. 8; Quodl. 6, a. 10; Lugo, de Iust. et Iur., d. 36, s. 4; Lessius, de Iust. et Iur., l. 2, c. 33; Ithur., Cas. 2; Struggl, 32; Elbel 303-306; Kenrick, tr. 6, c. 3, n. 20-22-25.

Resolutions: An unjust distributor of public offices is held to nothing toward the worthy person passed over, because he violated no strict right of his. Nevertheless he is certainly held toward society and toward private persons concerning all damages, arising therefrom both to society and to private persons. St. Thomas, l.c. A magistrate who prevents someone from competing for a prize, or forbids the prize to be adjudged to him who surpassed the others in the contest, is held concerning damage. - A magistrate likewise is held concerning damage who afflicts someone with an unjust penalty, if damage follows from it. A magistrate is also held concerning damage who burdens someone with taxes beyond his resources. Gousset 671, 1001; St. Thomas, 2. 2, q. 66, a. 8. Speaking of themselves, those who do not pay just tributes and tolls are bound to restitution, since they are owed from legal justice, which is intimately connected in this matter with commutative justice, by the very fact that someone is part of society, and a right has been acquired by society by force of the law itself of exacting tributes and tolls, so that its necessary expenses to be made may be compensated, if they are actually demanded and their payment is denied. Hence the Roman Catechism, 10, affirms that those not paying tributes and tolls are guilty of theft and rapacity. Gousset 671, 999. Cf. 232.

131. • Law or civil right is the collection of laws or decrees of temporal Princes, by which society is directed to the common good.

Individual nations, or political communities, have their own laws by which they are governed. But we especially distinguish a twofold law, namely: Roman or common law, and the new French law, which also is common in great part to some other governments.

I. Roman Law. - Roman Law is called common, because it had force almost everywhere up to our own times. Moreover it was always held in great honor, as refined, and as though written reason.

It is contained in the very celebrated Code, or corpus of Civil Law, published by the command of Justinian. This volume is distributed into four parts.

In the first part are the Institutes of Justinian, which, as rudiments and elements for beginners in Civil Law, are contained in four books.

In the second part are the Digest or Pandects, which are distributed into 50 books.

In the third part is the code called Repetitae praelectionis, divided into 12 books.

In the fourth part are contained 68 Authentics or Novels, which are designated in numerical order.

132. • II. French Law. - The new French Law has existed for only a few years; for before the times of Napoleon, France was governed in very great part by common law. The new law is contained in the code commonly called the Code Napoleon.

There are five parts of it, or particular codes: 1. the civil code; 2. the code of civil process (de procedure civile); 3. the code of commerce; 4. the code of criminal instruction; 5. the penal code. To these several other minor codes, and of lesser moment, have been added: namely the code of forests (code forestier), - the code of fields (code rural), - the municipal code (code municipal), etc. The individual matters contained in the individual codes are distributed into brief and clear articles, and are indicated by Arabic numbers, and therefore are found most easily. Moreover there are many laws which are inscribed and preserved in the tablets commonly called Bulletin des lois.

342. Thesis. A just civil law, commanding or prohibiting something, truly obliges in conscience, and indeed per se under grave obligation.

(A) For the Scriptures declare this many times: (a) Since every power is from God, "he who resists the power, resists the ordinance of God; and those who resist acquire damnation for themselves... therefore be subject of necessity, not only because of wrath, but also because of conscience";¹ from which it follows that civil laws at least sometimes oblige in conscience, and indeed under penalty of damnation. (b) The reason assigned shows the same: for princes and other superiors in the civil order are to be obeyed because they are ministers of God, sent by Him, and therefore in some way participate in His authority: "For he is God's minister to you for good... For he is God's minister, an avenger unto wrath against him who does evil";² - "Be subject therefore to every human creature for God's sake: whether to the king as excelling; or to governors as sent by him for the punishment of evildoers, but for the praise of the good."³ Consequently, just as God can oblige in conscience, and indeed under grave obligation, so likewise can those who hold His place on earth.

¹ Rom., XIII, 1-5.

² Rom., XIII, 4.

³ 1 Peter, II, 13-14.

(B) The reason is taken from the very concept of civil law handed down above, n. 332. For since civil law, although immediately ordered to the temporal good, is mediately and ultimately referred to the eternal good, namely to the practice of virtues which lead to God, it can truly be said that by the observation of civil law citizens are directed to the ultimate end, and by violation of it are turned away from the ultimate end; but aversion from the ultimate end is sin, and indeed grave sin.

343. Yet it was said: per se it obliges under grave obligation. For, that sin be grave, two things are required: gravity of matter, which must be judged not only from the thing commanded itself, but from the intended end (above, n. 274-275); and the intention of the legislator, which is discerned from various adjuncts, but especially from the sense of the people and the interpretation of prudent men. But here it must be noted that from a grave penalty the gravity of the transgression is not always inferred; for sometimes a grave penalty is inflicted for a light delict (for example, in the case of hunting and fishing), by which citizens may be more efficaciously deterred from violation of the law. - Nor are those to be heard who contend that modern legislators do not intend to impose a moral obligation upon citizens, because they themselves reject the existence of God and every foundation of morality; for, even if some of these defend those wicked errors, nevertheless they will to promote the observance of their laws in the best way they can, and therefore implicitly to bind subjects by a moral bond, since this is the most efficacious means.

344. Corollary. Generally laws of this kind oblige in conscience before the sentence of the judge, even in the matter of justice. For understanding this, it must be known that in this matter laws can be made in two ways: laws determinative of property, and laws irritating certain acts translative of property. Here we treat of the former; of the latter below, n. 345.

Laws determinative of property are those which more explicitly and distinctly define the rights of citizens as to ownership. For the right of nature not rarely remains obscure and indeterminate in this matter; and therefore it pertains to the civil power to declare the natural law more accurately concerning this matter, so that disputes and lawsuits may be forestalled; thus as to things found or lost, as to the prescription of goods, as to the rights of writers over the offspring of their own mind, etc., civil authority has accurately defined the more or less uncertain right of nature. Now laws of this kind oblige in conscience, even before the sentence of the judge, according to the common opinion. The arguments adduced in the thesis prove this; for here there is question of a temporal matter, insufficiently determined by the right of nature, concerning which therefore the State, as minister of God, can make laws immediately obliging in conscience.

284. Preliminary Note. Since man by his nature is a social animal (zoon politikon), and since he consists of soul and body, it is necessary that there be a twofold society of men: one spiritual (although visible), which above all procures the salvation of souls; the other corporeal, which specially and primarily intends earthly and bodily welfare. But in both societies it is necessary that laws exist, since no society can endure without laws. For the society procuring spiritual good, namely for the Church, ecclesiastical laws have been established, concerning which up to this point there has chiefly (although not uniquely) been discussion. But for society and temporal good civil laws are given, concerning which it now remains to speak briefly, since it is of interest to the confessor to know whether and how far civil laws oblige in conscience.

Faculty of making civil laws. That civil authority has true proper legislative power is of faith and is established from many texts of Sacred Scripture, for example: "Through me kings reign and makers of laws decree just things."¹⁵¹ Besides, concerning this matter enough has already been said above, n. 180.

¹⁵¹ Prov. 8, 15; cf. Wis. 6, 8; Rom. 13, 1; 1 Pet. 1, 13.

285. Obligation of civil laws. "That Christians are held to the observance of civil laws, even if these have been made by unbelieving rulers, provided that these are not opposed to Christian religion and evangelical morality, there is no place for doubting; and the Apostle leaves no place for doubt, who, making no distinction among higher powers, says: Let every soul be subject to higher powers: for there is no power except from God.... Therefore he who resists the power resists the ordinance of God: but those who resist acquire damnation for themselves.... Therefore be subject of necessity, not only on account of wrath, but also on account of conscience.¹⁵² From this most evident testimony it is manifest that those who hold supreme command in civil government can make laws for their subjects which oblige them even in conscience: reason also commends this for the public good, namely for warding off from civil societies the monster of anarchy, worse than dog and snake; and the illustrious examples of the first Christians commend it, who obeyed the civil laws of Gentile rulers so long as they could do this without loss of faith and good morals." Thus the Instruction of the S. C. de Propaganda Fide to the Vicar Apostolic of Siam, who asked whether a civil law forbidding the opium trade under penalty of death obliges in conscience.¹⁵³ - Therefore it is certain that civil laws, even those of unbelieving rulers, who perhaps thought nothing about imposing an obligation in conscience, can induce a true and indeed grave moral obligation in conscience.¹⁵⁴ Hence the opinion of a few theologians asserting that all modern civil laws are merely penal is entirely false, as though they have been made by legislators who are often unbelieving and care nothing about religion and conscience. - But I say that just civil laws can oblige in conscience; for it seems also certain that not all civil laws in reality directly oblige in conscience. For the common estimation of the people holds several civil laws as merely penal, for example, the so-called police laws (Polizeiverordnungen). Therefore, for discerning the value and moral obligation of civil laws, before all else the common estimation of the healthier part of the subjects is to be consulted; if they hold some law as merely penal, they seem to give a usual interpretation, which certainly is the best interpreter of laws and can safely be employed in practice. - Then it is certain and self-evident that no civil law obliges in conscience which is unjust, or which is opposed to religion and good morals. For such a law is not true law, but unjust tyranny or rebellion, since it wounds the right of the higher legislator, namely of God or of the Church. These two cases having been set aside, the following rules seem able to be established as directive norms:

¹⁵² Rom. 13, 1 sqq.

¹⁵³ Collect. de Prop. Fide n. 815 (ed. 1907). Cf. Leo XIII, Encycl. Diuturnum, d. 29 June 1881.

¹⁵⁴ Cf. St. Thomas, S. theol. I, 2, q. 96, a. 4.

286. Rule 1. Just civil laws establishing rights or transferring ownership ordinarily oblige in conscience from true commutative justice and not only from legal justice;¹⁵⁵ and this even before the sentence of a judge.

The reason is that such laws are just, and without their observance the public good would be harmed and the peaceful cohabitation of citizens would be impossible. Moreover, such laws are nothing but just determinations of the natural law, which cannot determine all particular cases. Hence, for example, civil laws which attribute to a possessor in good faith the ownership of fruits received from a thing of another possessed by him; which grant to a father the usufruct in the goods of children of the family; which designate to children the legitimate portion of inheritance; which attribute half of a treasure to the finder and the other half to the owner of the land; which permit an action for damage from juridical fault alone, etc., have force in conscience.

Rule 2. Invalidating civil laws oblige in conscience after the sentence of a judge.

Thus the more common and far more probable opinion.¹⁵⁶ For such judicial sentences are just, and accordingly they must be obeyed, just as a superior legitimately commanding must always be obeyed. Thus, for example, if a judge has declared some formless testament invalid, it must also be held as invalid in the forum of conscience. If a judge has declared any other merely civil contract invalid, for example, a purchase made by a minor, it is invalid also in the forum of conscience. - Before the sentence of a judge, such civil laws do not seem to induce an obligation in conscience, as was already said above, n. 215.¹⁵⁷

Rule 3. In doubt concerning the moral obligation of some civil law, subjects directly do not sin by transgressing a law of this kind.

There are authors who wish to prove this rule from the famous adage: "A doubtful law does not oblige"; but because this adage is not admitted by all without restriction, hence the rule stated can be demonstrated from this, that the legislator is not judged to wish to bind the conscience of subjects unless he expresses this sufficiently clearly. For the end of civil law can often be attained without a direct obligation of the conscience of the subjects. In some regions concerning many civil laws one can rightly doubt whether there truly is an obligation in conscience. And therefore then no strict obligation is to be imposed.

Rule 4. Unless there is present a manifest violation of natural, divine, or ecclesiastical right, subjects can always follow the ordinances of civil laws even in conscience.

Therefore, although there is not always a strict obligation of following civil laws, nevertheless subjects can always, and that laudably, observe the statutes of a just civil law. Hence it is greatly to be advised that the confessor opportunely inculcate the observance of civil laws, and also that he conform his decisions, so far as he can, to the statutes of a just civil law.

¹⁵⁵ Thus also Noldin, De praecept. n. 356; D'Annibale, Summula Theol. mor. I, n. 206; Marc-Raus II, n. 838.

¹⁵⁶ Cf. Response of the S. Penitentiary, d. 21 Jan. 1873, apud A. van Gestel, De iustitia lege civili (1896), n. LXV.

¹⁵⁷ Cf. A. van Gestel, l. c. n. LXXXVI.

287. The object of civil law is all external human acts leading to the temporal common good of the republic. Civil law cannot by its own authority establish anything concerning spiritual and ecclesiastical matters, just as it also cannot sanction spiritual penalties. - By several persons (Beccaria, Holtzendorf, Schleiermacher, etc.) the power of inflicting the death penalty is denied to civil law, but St. Thomas¹⁵⁸ and the most common opinion, confirmed by the example of all ages, attribute this power to civil law. Among Catholics almost Scotus alone¹⁵⁹ seems to contradict, judging that capital punishment cannot be inflicted except from God's dispensation. This opinion of Scotus, unless it is interpreted benignly, is rather rash;¹⁶⁰ hence already before the times of Scotus, Innocent III (in 1208) demanded from the Waldensians returning to the bosom of the Church that they declare: "Concerning secular power, we assert that without mortal sin it can exercise judgment of blood; provided that, in inflicting vengeance, it proceeds not from hatred but from judgment, not incautiously but with counsel."¹⁶¹ - Besides, discussion of this matter will return below, where there is treatment of the bloody punishment of a malefactor.

Since there is a special difficulty how far the obligation of civil laws concerning taxes and military service extends, here it is useful to treat individually of those laws.

¹⁵⁸ S. theol. II-II, q. 64, a. 2; Summa c. gentes 3, 146.

¹⁵⁹ In 4, dist. 15, q. 3.

¹⁶⁰ Cf. Bannes, Comm. in II-II, q. 64, a. 2, concl. 1.

¹⁶¹ Denz. n. 425.

177. • As individual nations or political communities, so also our Federated States have their own laws, by which they are governed.

Of these, a) some proceed from Congress; b) others from the legislative assemblies of the individual States (Legislature); c) others from municipal colleges (city councils); d) others pertain to common law (the common law); e) others to statute law (the statute law); f) others to Roman law (the civil law).

It is helpful to note a few things concerning each.

To a). Congress makes laws concerning affairs committed to itself by the consent and covenant of all the States. What these are, see, if you wish, in Kent¹ and in the Constitution of the United States.²

To b). Any one of the Federated States is in the manner of a nation, and must be called an independent Republic (Commonwealth), enjoying supreme power of making laws, which power is restricted only by those laws which Congress makes concerning affairs committed to itself by the consent and covenant of all the States.

To c). Municipal colleges can make laws according to the Charter by which the municipality was constituted.

To d). They call common law (the common law) "those principles, usages and rules of action, applicable to the government and security of person and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature."³

To e). Statute law (the statute law) "is the express written will of the legislature."⁴

To f). Roman law, which our jurists are accustomed to call "the civil law," today, as such, has retained the force of law in almost no region. - It is contained in the celebrated Code, or Body of Civil Law, issued by command of Justinian. This volume is distributed into four parts.

In the 1st part are the Institutes of Justinian, which, as rudiments and elements for novices of Civil Law, are contained in four books.

In the 2nd part are the Digest or Pandects, which are distributed into 50 books.

In the 3rd part is the Code, called of repeated reading, divided into 12 books.

In the 4th part are contained 68 Authentics or Novels, which are designated by numerical order.

Most States (which generally these are, see Kent⁵) follow common law, insofar as it was in force before liberty was attained (July 4, 1776), and statute law established before that time by the legislative assembly of England, excepting however those dispositions of each of these laws which are repugnant either to the condition of the region, or to the laws of Congress or of the individual States.

In what sense Louisiana uses Roman law, indeed also French and Spanish law, see, if you wish, in Kent.¹ Moreover in all the States judges are accustomed to decide causes brought before them according to Roman Law only when they cannot decide them according to written laws and common law, as being silent concerning them.

St. Thomas, I-II, q. 96, a. 4.

283. Principle I. Civil law, as such, not only coerces but obligates in conscience and before God, even under grave obligation. It is certain.

It is proved: a) Natural law and divine law obligate in conscience. But these laws dictate that superiors legitimately commanding are to be obeyed, and indeed even under grave obligation. Therefore. For legislative power is necessary for obtaining the end of society; but the legislative power of a superior imports for subjects an obligation in conscience of obeying just laws; otherwise the power of the superior could be frustrated, and it would not be true power but a semblance of power. Therefore. Now those things which are necessary to human society obligate of themselves under grave obligation (cf. on natural law, n. 251, C).

b) From the Scriptures, according to which 1) civil law is borne by power granted by God (Rom. XIII, 1; Wis. VI, 4), imposed in the name of God by His ministers (Rom. XIII, 4, 6; Wis. VI, 5; I Pet. II, 13), and sanctioned by God (I Pet. II, 13); therefore 2) they are to be obeyed by necessity (Rom. XIII, 1, 5), not on account of wrath and contention but on account of God and conscience (I Pet. II, 13; Rom. XIII, 5). For he who resists the minister, in that in which he is minister, is judged to resist the king; whence 3) he who resists the power of the prince resists the ordinance of God itself and acquires for himself a just penalty (Rom. XIII, 2).

284. Corollary. - Civil law obligates in conscience, even if the legislator does not think of such obligation or does not care about it (even if he is an unbeliever, as is clear from the instruction of the Congregation for the Propagation of the Faith to the vicar apostolic of Siam), or should wish to abstract from it, provided he does not altogether exclude obligation and commands a true law. For he who commands implicitly wills to obligate in conscience, both because once the precept has been posited, obligation follows spontaneously and naturally from natural law and the will of God, which command obedience toward superiors, and because he often wills observance in a better and more efficacious mode, especially when there is question of things necessary for the common good.

Hence 1) in a case in which the legislator intends truly to use his legislative power but does not admit obligation in conscience or wills to exclude it, of two contrary wills the predominant will has force (p. 55), which must be presumed and ordinarily is the will of establishing a law and obligating, just as the nature of the thing demands;

2. even a legislator who does not care about God or obligation of conscience is not to be presumed to urge by coercion of penalty alone, unless the contrary is clear or a case is present in which the common good altogether demands obligation in conscience; but on the contrary, unless the contrary is clear, he must be presumed truly to obligate, at least in matters of greater moment.

285. Principle II. Human law, in order that it obligate, must be just, that is, must establish just acts:

1. on the part of the matter, because it must be concerned with just things; and therefore the prescribed acts must be just, both generally with justice broadly so called, or honorable (as all virtues require), that is, not contrary to a superior law (natural, divine, ecclesiastical), and with justice strictly so called, specifically just, that is, opposed to the right of no one;

2. also on the part of the one bearing it or of the mode, because it is prescribed justly:

a) by reason of the end, the prescribed acts must be useful not for one's own good but for the common good, as legal justice requires;

b) by reason of the author, they must be contained within the scope of his power, as commutative justice requires: for subjects are bound to obey superiors in those things in which they are superiors, as a soldier obeys the commander in those things which pertain to war, and a servant obeys the master in works which regard service, etc.;

c) by reason of the form or prescription: they must be duly proportioned to the powers and faculties of all, so that in the distribution of honors and burdens the proportion of equality is preserved, as distributive justice requires.

But if one of these is lacking, according to this the law does not obligate.

286. An unjust law 1) on the part of matter obligates in no way, so that it cannot be fulfilled even to avoid death, because it is contrary to the divine good: for it is necessary to obey God rather than men (Acts V, 29. Cf. Exod. I, 17-21; enc. Qui pluribus, November 9, 1846; Quanta Cura, December 8, 1864); nevertheless per accidens it can be fulfilled if God or the Church yields its right and no longer urges its law, for example, concerning hearing Mass if soldiers were prohibited by civil law;

2. a law unjust on the part of the one bearing it, as being contrary only to a human good, can be fulfilled but of itself does not obligate, because it is not true law; nevertheless per accidens it must be observed by force of natural law on account of some grave motive, namely, to obtain a greater good or avoid a greater evil.

Hence a) a law which is not useful to the common good can obligate per accidens, for example, to avoid scandal, disturbance, etc.

b) A law which is borne against commutative justice by one who does not have power but usurps it, and invades the republic without right but holds it oppressed: if he does not yet possess the kingdom peacefully, it does not obligate by defect of power; but if he possesses the kingdom, laws which promote the common good obligate, because society cannot stand without a power of rule, which therefore it is judged to confer upon the usurper, nor without laws, to which therefore for the common good the people tacitly acquiesces; but laws directly borne against the legitimate prince do not obligate, because they injure a certain right.

1. Thus natural right: in practice positive human laws must also be considered, for example, the Hague Convention in the case of war. Thus, for example, it has been sanctioned that an invader of a territory can issue decrees which, while he precariously occupies the region, seem necessary for maintaining peace. But he cannot command beyond this necessity and the securing of his own safety. Vermeersch, Theologia Moralis I, n. 189.

c) A law injuring distributive justice (for example, in taxes) does not obligate for the unjust and excessive part, unless per accidens by reason of scandal, disturbance, etc.; nevertheless it obligates for the just part, unless the excess of proportion in distributing burdens were so great that the law itself yielded to common detriment.

Nevertheless it must be noted that it is necessary that the injustice be morally certain; otherwise presumption stands for the legislator, both because he has and possesses the faculty of commanding, which cannot be taken from him on account of doubt, and because he can have reasons hidden from subjects, and because otherwise subjects would take excessive license for transgressing laws, which scarcely can be so just that by apparent reasons of injustice they cannot easily be called into doubt by some.

287. Some laws are moral, others penal. - Certain civil laws are moral or preceptive, which strictly obligate in conscience to doing what is established by law, sometimes even under penalty, in which case they are also penal and are called mixed; certain laws are merely penal, which obligate in conscience not to doing what is established by law, but only to not resisting, in the case of transgression, the infliction of penalty and to undergoing the penalty inflicted.

Merely penal laws can certainly or probably be recognized: a) from the will of the legislator openly declaring this; b) from the tenor or form of the law, if it prescribes only the penalty: He who has done this shall pay such a fine; on the contrary, rather if it commands and at the same time imposes a penalty; c) from the matter of the law: if it is light and having no regard to good morals, or if the end can easily be sufficiently obtained by obligating under penalty alone; for then the legislator is presumed to obligate in that way unless he has declared otherwise. On the contrary, if the matter is of great moment, pertaining to good morals and to restraining vices, or if it is necessary for the peace or good of the republic or for avoiding a great inconvenience to it, especially if obligation in conscience is necessary or expedient for obtaining observance of the law; for then the legislator is presumed to obligate in a mode more efficacious and more suitable to the republic; d) somewhat from the nature or quantity of the established penalty, if it is not merely coercive but is able to compensate the defect of the act, as a fine, or if it is too great and not proportioned to the delict: for then the legislator is judged to increase the penalty because he obligates under penalty alone; on the contrary, if the penalty supposes fault or is merely coercive, as imprisonment; e) from common estimation, the interpretation of the wise, custom, etc.

According to the aforesaid rules, the following laws are to be judged moral: a) those which confirm natural or divine law, for example, those which prohibit vices; b) those which immediately contribute to the common good, for example, those which refer to contracts or prescribe offices pertaining to public functions, likewise the law of military service unless it is certainly unjust (cf. treatise on Justice); c) those which define rights, for example, laws which determine property concerning things found and lost, prescription of goods, rights of writers, the law which attributes to the father usufruct from the goods of children or from paternal goods attributes a legitimate part to children (at least ordinarily); d) also per se laws of taxes, because these are necessary for the governance of the republic, and moreover the Scriptures teach thus (Mt. XXII, 15-22; Rom. XIII, 1-7), whence, unless the contrary is clear, at least direct taxes obligate in conscience, which are imposed immediately and directly upon persons at established times on account of goods, income, faculties, the exercise of an art or commerce, and which also are usually exacted by coercive penalties; but according to present-day law they do not obligate before they are defined and exacted (cf. treatise on Justice).

On the contrary, the following are probably merely penal: a) laws and statutes which refer to the external order of the community (lois et arretes de police); b) laws concerning the cutting of wood or pasturing of animals in common forests or pastures; likewise laws concerning hunting and fishing, except insofar as they establish the right of a third party; c) laws which forbid certain goods to be exported or imported (unless it is altogether necessary for the public good, for example, in time of war); d) laws which impose certain indirect taxes, which primarily and immediately touch goods and are paid occasionally for the transmission and change of rights or the intervention of a tribunal (droits d'enregistrement, de mutation, de timbre, d'hypotheque, de greffe), whether for goods being transported (droits de douane: d'entree, de sortie, de transit), or for the manufacture of certain things (droits d'accises) or the cultivation of certain fruits (for example, tobacco); e) laws which prohibit games of chance and games, except for the part by which they forbid establishing games of chance by design, since this is vicious and also harmful to others.

Nevertheless it is better not to teach these things publicly to the people, but to lead them to observance of the law, especially because violation of a merely penal law, chiefly if habitual, can be culpable per accidens, either because on the occasion of this the right of a third party is injured or scandal is given, or because charity toward oneself and one's own is injured, while one imprudently exposes oneself and one's family to graver penalties and great dangers, infamy and damages, or because one would exercise violent resistance against those who by office are bound to apply the law, or would be prepared for it.

288. There are also invalidating civil laws which render acts invalid, whether as a penalty for a delict, or for the protection of the agent or a third party, or for the common good, for example, on account of the danger of frauds, and to avoid lawsuits, and so that contracts may be made with greater protection.

And indeed: a) sometimes acts are invalidated by law alone without any sentence of the judge, if conditions are lacking which are altogether required for the nature, object, or existence of the act and therefore as quasi-essential for validity, so that without them it cannot even be conceived, for example, if there is radical incapacity or inability for placing acts, or if forms required for the solemnity of a donation inter vivos or of a testament are lacking; then in French law it is said: nul par le fait meme, radicalement nul, inexistant, non avenu; b) sometimes invalidation is decreed by law, yet in such a way that for the invalidation itself a declaratory sentence of the judge is necessary, if conditions simply required for validity are lacking; in which case the act before the sentence of the judge remains valid, after the sentence is invalid not only from the moment of the sentence but is judged never to have been placed: for the judge does not render it null but only declares it to be null by the law itself. Then in French law it is said: nul de droit, nul de plein droit, simplement nul; c) sometimes it is not annulled by the law, but it is decreed that it can be annulled by the judge, if it is valid in itself but certain conditions required for liceity are lacking; in which case before the sentence of the judge it remains valid, after the sentence it is judged null but only from that moment, because it is annulled not by the law but by the judge himself. Thus it happens in French law when the act is injurious to rights, whether of the agent or of a third party (acte lesionnaire): it is called rescindable (rescindable par action en rescision); or when it is fraudulent (frauduleux), and this is called revocable (par action revocatoire).

These laws render acts void in conscience (as determining rights), also more probably in the first case before the sentence of the judge.

But it should be noted that invalidating laws are not necessarily prohibiting laws (as a law invalidating a testament without the forms required for solemnity), but only if the act cannot be good unless it is valid, or if the motive which demands invalidation also demands prohibition (for example, donations of parents beyond the legitimate portion), or if it is expressly or implicitly prohibited, through the addition of a special penalty besides invalidation.

289. Corollary.

From what has been said it follows that civil law per se obligates gravely in grave matter, namely, whenever it greatly conduces to an end of great moment, unless, however, the legislator wills only to obligate lightly, or under penalty alone.

Civil law or civil right is a collection of laws by which each nation is directed to the common good, whatever finally may be its form of government. - But in a stricter sense, by the name civil law sometimes is understood a certain special collection of laws by opposition, for example, to military, criminal laws, etc. - Indeed among us civil law (the civil law) is taken to denote Roman right. - Cf. Bouvier, Law Dictionary, under the word Law. - Kenrick, Append. to tract. 6, de leg. civ. variet.

Question. Of how many kinds especially is the right in force in this our region?

Response. Roman right (the civil law), common right (the common law), and statute right (the statute law). - I have said especially, because in Louisiana, for example, much of French right is in force, especially as regards inheritance and succession of goods, and something of Spanish right. - Therefore:

I. Roman right, which elsewhere is called common, and among us civil, has always been held in great honor as full of wisdom and as if written reason. It is contained in the celebrated Code, or body of civil law, published by order of Justinian. This volume is distributed into four parts. In the first part are the Institutes of Justinian, which, as rudiments and elements for beginners of civil law, are contained in four books. But in the second part are the Digests or Pandects, which are distributed into 50 books. - In the third is the code, called Of Repeated Reading, divided into 12 books. - Finally, in the fourth part are contained 68 Authentics or Novels, which are designated in numerical order.

II. Common right is the complex of principles, customs, and norms of acting which among us are applied for the protection of persons and property, and which are not founded on an express and positive declaration made by legislative assemblies.

III. Statute right is the complex of laws which emanate from legislative assemblies, by a positive and express act. - Cf. Kent, vol. I, nn. 447, 472 and 473. - Bouvier, Law Dictionary, under the word Law. - Kenrick, Append. to tract. 6, de leg. civ. variet., n. 1.

Caius, the procurator of a certain college, heard that a certain Titius was selling Welsbach Incandescent Burners at a much lower price than that at which they were sold by the company to which the exclusive right of selling them had been granted by civil law. Although he suspected that Titius was violating civil law, Caius bought a large quantity and thus notably reduced the expenses of the college. When Julius, the procurator of another college, had heard this, he accused Caius of injustice because he had violated not only civil law but also the natural law which concedes to all the fruits of their own industry. Greater weight was added to his opinion after Titius, having been summoned into court, was condemned to a large sum of money by way of compensation; hence Caius began to be solicitous about his own obligations. It is asked:

1. What is a patent-right, and what is established concerning it by English law?

2. Is that right from natural law or from positive law?

3. How do civil laws which grant some right affect conscience?

4. What is to be said of the case?

1. What is patent-right and what does English law lay down about it ? Patent-right is the exclusive right for a term of years to the proceeds of an invention. The term, according to English law on certain conditions, is fourteen years, and this may be extended to a further term of seven or fourteen years, if the inventor has not, at the end of the first term, reaped the full benefit of his invention, and his patent is for the public benefit. In the United States the term is seventeen years.

2. Is patent-right of natural or positive law ?

The question is disputed among jurists and divines. The better opinion is that natural law grants the right in an imperfect and indeterminate way, and that it is determined by positive law.¹

1 Manual of Moral Theology, vol. i, p. 347.

3. How do civil laws which grant a right affect the conscience ?

The civil laws which define and determine natural rights or obligations bind the conscience under sin, for they derive their force chiefly from the law of nature which they determine. With regard to other civil laws much will depend on the intention of the legislator. With reference to English-speaking countries we shall probably not be far wrong if we say that positive laws which confer a right which is not derived from the law of nature, such as prescription, may be interpreted in this sense; the party whom the law favors may use the right granted, but if he does not move in the matter, there is no obligation on the party burdened voluntarily to yield it to him.

4. The case. Patent-right is rooted at least in natural law though it is determined by positive law. Hence Titius violated justice by infringing the rights of the company which owned the patent of Welsbach Incandescent Burners. But when the cheap burners were being publicly offered for sale, Caius was justified in buying them at the market price. He was under no obligation to defend the rights of the patentee. There is no reason, then, why his conscience should be disturbed, even after the lawsuit. Titius will make compensation for the loss which the company has suffered. Nor does Caius commit sin by co-operating with the sin which Titius commits by selling the burners, for as I may for grave reason borrow a loan at usurious interest, although by lending it the usurer sins, so the burners might be bought though not sold without sin.¹

1 St. Alphonsus, book ii, treatise 3, no. 47.

Some time ago a paragraph appeared in the daily papers describing how a conscientious superintendent of police had taken a summons out against himself, and had been fined five shillings for riding his bicycle without a light. A clergyman, he said, had spoken to him on the subject, and this had brought the offense home to him. Punch recorded the incident, and took the opportunity to show what such views about the obligation of the law might be expected to lead to, if they became general. In one corner of the page, master Bob, with a woe-begone expression, was presenting a birch-rod to his mother, and confessing that he had been at the jam again. Below, a cabby was taking out a summons against himself for charging a fare sixpence too much. Opposite was a learned judge closing proceedings in his court by fining himself £20 and costs for betting in a place within the meaning of the Act; and in the middle, stood an automatic conscience clearer, armed with iron fists, worked on the penny-in-the-slot principle, for inflicting summary punishment on delinquents for minor offenses.

No doubt the honest superintendent’s conscience, or that of his clergyman, was somewhat strict, for whatever may be the obligation of the law, it would seem to be certain that it does not bind delinquents to execute its penalties on themselves. But how does civil law bind the conscience? What obligation, if any, does English civil law impose on the conscience? It may be worth while to examine this question from the point of view of Moral Theology.

There can be no doubt that the civil lawgiver can bind the consciences of his subjects by his laws. This is the plain teaching of St. Paul in Romans xiii. 1-5:

Let every soul be subject to higher powers: for there is no power but from God: and those that are, are ordained of God. Therefore he that resisteth the power, resisteth the ordinance of God. And they that resist, purchase to themselves damnation. For princes are not a terror to the good work, but to the evil. Wilt thou then not be afraid of the power? Do that which is good: and thou shalt have praise from the same. For he is God’s minister to thee, for good. But if thou do that which is evil, fear: for he beareth not the sword in vain. For he is God’s minister: an avenger to execute wrath upon him that doth evil. Wherefore be subject of necessity, not only for wrath, but also for conscience’ sake.

According to Christian teaching, then, the civil ruler can bind the consciences of his subjects, so that they offend God if they disobey a strict precept imposed by him. His power to do this does not depend on his having correct theological views, for St. Paul prescribes obedience to the Roman emperors, who knew nothing at that time about Christianity.

But though we must concede that the civil ruler has the power to bind the consciences of his subjects under sin, it does not follow that all his laws do in fact bind under sin. For one who has authority to command may use all his power or not, as circumstances require, and as he judges fit. It is often better for a father to signify a desire that a son should do what he wants, rather than to impose on him a rigorous command. What is wanted will be gained quite as surely, and more sweetly, in the former manner than in the latter. It is not desirable that a father should always use his full authority when he commands his children. And in like manner, any superior whose office it is to direct the actions of his subjects to the common good, and to whom God grants the authority necessary for this purpose, will often gain his end quite as surely, and more sweetly, if he refrains from using his full power on every occasion. And as the end in view is the chief thing to be considered, if the end can be gained by sweet and easy means, why should not these be preferred? A superior can indeed impose a precept which will bind the conscience under sin, but he need not necessarily do so, if the end can be obtained by simply expressing a desire; in other words, as a superior can impose a command or refrain from doing so, as he judges best, so the obligation which the superior’s command imposes on his subjects may be greater or less, as he judges best. As the existence of the obligation depends on his will, so the quality also of the obligation depends on his will. This of course does not imply that the superior’s will is the only source of obligation, or that it can change the nature of things. If an obligation not to commit murder has already been imposed by a

higher authority, a subordinate authority cannot impose a binding precept to commit murder. A lower superior can only use the power that has been granted him. He effects nothing if he attempts to transgress the limits of his authority, whether those limits be set by a higher superior from whom he derives his authority, or by the nature of things. So that a human lawgiver cannot impose just what laws he pleases. If he attempts to command what God forbids, his command cannot bind the conscience; he may indeed, by using his superior might, punish those who refuse to obey, but he cannot make their disobedience wrong. It will be a right action approved by God and good men. “We ought to obey God rather than men.”

However, if the common good should require it, a human lawgiver may prohibit what God prohibits, and command what God commands, and enforce these laws by human sanctions. Thus He forbids theft, and commands parents to support their children. And such laws certainly bind the conscience, so that a subject who violates them, not only sins against the law of God, but also against the law of his country. He makes himself liable to punishment both from God and men.

All, I think, are agreed upon this, that human laws which are declaratory of the divine or natural laws bind the consciences of subjects. So that civil laws forbidding murder, theft, and other crimes; selling poisons without due precautions, selling beer to those who have already had too much, disseminating indecent literature, bind the conscience under sin.

And similarly positive precepts which command what is already obligatory by the Divine or natural law also bind the conscience under sin. So that a father is bound to support his wife and children according to his ability, not only because the Divine and natural law commands it, but also because the municipal law enforces it.

The same, too, as all I think are agreed, must be said of those civil laws which determine the natural law, where of itself it is indeterminate. For the natural law is concerned rather with general precepts than with particular circumstances and cases. Often it suggests and persuades rather than prescribes. It indicates what is desirable rather than imposes a definite obligation. In such cases it is the province of the positive law to step in and, for the common good, determine what was before indeterminate, that there may be a definite rule of action, that subjects may not be left in perilous uncertainty about their rights and duties, so that there may not be continual lawsuits. When it has done so, the rule laid down will be a guide, not only for the external conduct, but also for the conscience. And so the Prescription Act, the Married Women’s Property Act, Infants’ Relief Act, and other laws of the like nature form rules of conscience as well as of law.

The law of nature suggests that if a man has been in peaceful possession of property for a long time, and in good faith, thinking it to be his own, he should not be disturbed, even though it afterwards appears that another had a better title. The natural law does not indeed of itself in such a case transfer the ownership of the property, it only suggests that it would be for the common good, that it would make owners of property more watchful of their rights, that it would lessen the number of troublesome lawsuits, if long and peaceable possession, with good faith, gave a title to property. And so the positive law steps in, and enacts that prescription shall be a good title to property. Positive law determines and defines the conditions of prescription, and its provisions hold good for the conscience, as well as for the external forum. And the same is true of other positive laws, which for the common good determine and define the law of nature. In like manner the sentence of the judge, in a doubtful case of conflicting rights, provides a safe rule for conscience, and obliges the contending parties.

In all these cases the obligation does not arise purely and simply from the positive law, there is a root of obligation already existing which the positive law declares or determines. But such cases are far from exhausting the whole subject-matter of positive law. There remains a very large field of more or less indifferent actions, where man’s liberty is restrained neither by the Divine nor by the natural law. As far as God’s law or the law of nature is concerned, very many actions are neither prescribed nor prohibited ; they may be done or left undone, done in this way or in that, and whichever course be chosen a man’s conscience will be free, as far as the Divine or natural law is concerned. And yet it is often well that the law should interfere, with prudence indeed and moderation, in matters that are of themselves indifferent. Thus with regard to work in factories, the conditions of labor might, absolutely speaking, be left to be arranged by the humanity of the employers, or by mutual agreement between employers and employed; but experience has shown that it is desirable for the civil authority to step in, and so we have the Factory Acts. They forbid working overtime, or under a certain age, prescribe certain precautions to be taken for the sake of health, they limit in many ways the natural liberty of masters and men.

We have also positive laws relating to the regulation of mines, enactments concerning the raising of revenue, Elementary Education Acts, laws forbidding certain contracts, as for example, in restraint of trade, and so forth. How do such laws as these affect the conscience? Is it a sin to violate them, just as it is a sin to violate those which declare or determine the Divine or natural law? And here of course we suppose that there is no obligation in conscience arising from some other source than the positive law. For our purpose we eliminate other possible sources of obligation, and merely consider the positive law. Thus, it may be, that the owner of a coal-mine knows that there is fire-damp in his mine, and that it is exceedingly dangerous to work in it. Then, of course, both he and the men are bound to take such pre cautions as will enable the work to be carried on with comparative safety. The hours of labor, too, are restricted in a sense by the natural law, which prescribes a reasonable care of life and health. But for the purpose of our inquiry, we disregard such cases as these; we suppose cases in which there is no obligation arising from the natural law, and we wish to ascertain what, if any, obligation is imposed by positive law. If a factory-master, knowing that his hands did not object, were to work half an hour overtime, when there is a brisk demand for his goods, and that in spite of, and in the teeth of the law, would he commit a sin, or what obligation would he violate?

The lawgiver has the power to bind the conscience even in such indifferent matters as these, as all admit and as we have already seen. But, as we have seen, he need not always use his power to the full extent. He may indeed intend to bind his subjects to obey his laws even in indifferent matters under pain of sin, and assign a sanction or penalty to be inflicted on those who break the law. Or, without intending to impose a strict obligation under pain of sin, he may be satisfied that he can secure substantial obedience to his laws, by merely assigning a penalty to be endured for violations of the law. The former are called by divines moral laws, the latter are called penal laws. A moral law imposes an obligation under sin in conscience, and usually assigns a penalty for breaches of it; a penal law only imposes the obligation of submitting to the penalty when lawfully exacted. A breach of a moral law is a sin, a breach of a penal law is not a sin, if one be prepared to pay the penalty if levied. The question as to whether positive municipal laws are moral laws or penal laws is a celebrated one.

Martin Azpilcueta, the celebrated Doctor of Navarre, and on that account usually styled Navarrus, held, in the sixteenth century, that the positive laws of secular princes did not bind the conscience. “ Ancient custom,” he says, “seems to have interpreted in this sense secular laws especially, concerning whose transgression it has not been usual to disturb the consciences of learned or unlearned, penitents or confessors, or men of any condition, order, or sex, except when the Divine, natural, revealed, or canon law was also at the same time broken; and this because infidel lawgivers care nothing about eternal punishment, and there are very few Christian secular princes who say that it is their intention in making laws, while imposing a temporal penalty, to bind also to eternal punishment, when the Divine or natural law does not so bind.”¹

¹ Manuale, c. 23, n. 55.

Although a few other theologians held the same view, the common opinion was against it. In England, Anglican divines, as was to be expected, were strongly on the side of the stricter opinion. Jeremy Taylor admits indeed that “ this question is so dubious and unresolved, that Cajetan and Henricus de Gandavo did suppose it fit to be determined by the Pope in cathedra, as thinking it otherwise to be indeterminable.”² However, he not only maintains that positive civil laws bind under sin, but that to say that a law does not bind under sin is a contradiction. He does not seem to have grasped the idea of a penal law in the theological sense. Sanderson, in his able book, De obligatione conscientiae, explains at considerable length what is meant by penal laws; but while admitting that they may exist, he does not say that they actually do exist in England, and he maintains the general proposition that positive municipal laws bind the conscience under sin. This continued to be the common opinion in England down to our own day, in spite of the great weight of Sir William Blackstone’s authority in favor of the milder view. This eminent lawyer gives his opinion on the question so clearly and well, that I am tempted to give it in his own words:

² Ductor dubit, Bk. III, c. 1, r. 1, n. 2.

It is true, it hath been holden, and very justly, by the principal of our ethical writers, that human laws are binding upon men’s consciences. But if that were the only or most forcible obligation, the good only would regard the laws, and the bad would set them at defiance. And, true as this principle is, it must still be understood with some restriction. It holds, I apprehend, as to rights; and that when the law has determined the field to belong to Titius, it is matter of conscience no longer to withhold or to invade it. So also in regard to natural duties, and such offenses as are mala in se: here we are bound in conscience, because we are bound by superior laws, before those human laws were in being, to perform the one, and abstain from the other. But in relation to those laws which enjoin only positive duties, and forbid only such things as are not mala in se, but mala prohibita merely, without any intermixture of moral guilt, annexing a penalty to non-compliance, here I apprehend conscience is no farther concerned, than by directing a submission to the penalty, in case of our breach of those laws: for otherwise the multitude of penal laws in a state would not only be looked upon as an impolitic, but would also be a very wicked thing; if every such law were a snare for the conscience of the subject. But in these cases the alternative is offered to every man; ‘either abstain from this, or submit to such a penalty;’’ and his conscience will be clear, whichever side of the alternative he thinks proper to embrace. Thus, by the statutes for preserving game, a penalty is denounced against every unqualified person that kills a hare, and against every person who possesses a partridge in August. And so, too, by other statutes, pecuniary penalties are inflicted for exercising trades without serving an apprenticeship thereto, for not burying the dead in woolen, for not performing the statute-work on the public roads, and for innumerable other positive misdemeanors. Now these prohibitory laws do not make the transgression a moral offense, or sin: the only obligation in conscience is to submit to the penalty, if levied. It must however be observed, that we are here speaking of laws that are simply and purely penal, where the thing forbidden or enjoined is wholly a matter of indifference, and where the penalty inflicted is an adequate compensation for the civil inconvenience supposed to arise from the offense. But, where disobedience to the law involves in it also any degree of public mischief or private injury, there it falls within our former distinction, and is also an offense against conscience.³

³ Commentaries on the Laws of England, i., p. 57.

It will not be necessary to defend this clear exposition of a very probable opinion concerning the obligation of English positive law, from the not always very intelligent criticism of Blackstone’s commentators. Since his time a notable change of view has taken place in the English legal world concerning the nature and obligation of positive law. The school of thought represented by Hobbes, Locke, Bentham, and Austin, seems to have become predominant, and to have succeeded in a large measure in ousting the more orthodox views of Blackstone. And as the obligation of positive law depends rather on him who enforces it, than on the original lawgiver, we will briefly examine the Austinian conception of law, and see how it affects the conscience. Austin’s theory of law and of the obligation which it imposes may be gathered from the following extracts from his Lectures on Jurisprudence:

Every law or rule is a command. And since the term command is the key to the sciences of jurisprudence and morals, its meaning should be analyzed with precision. . . . If you express or intimate a wish that I shall do or forbear from some act, and if you will visit me with an evil in case I comply not with your wish, the expression or intimation of your wish is a command. A command is distinguished from other significations of desire, not by the style in which the desire is signified, but by the power and the purpose of the party commanding to inflict an evil or pain in case the desire be disregarded. If you cannot or will not harm me in case I comply not with your wish, the expression of your wish is not a command, although you utter your wish in imperative phrase. If you are able and willing to harm me in case I comply not with your wish, the expression of your wish amounts to a command, although you are prompted by a spirit of courtesy to utter it in the shape of a request. . . .

A command, then, is a signification of desire. But a command is distinguished from other significations of desire by this peculiarity: that the party to whom it is directed is liable to evil from the other, in case he comply not with the desire.

Being liable to evil from you if I comply not with a wish which you signify, I am bound or obliged by your command, or I lie under a duty to obey it. If, in spite of that evil in prospect, I comply not with the wish which you signify, I am said to disobey your command, or to violate the duty which it imposes.

Command and duty are, therefore, correlative terms: the meaning denoted by each being implied or supposed by the other. . . . Concisely expressed, the meaning of the correlative expressions is this. He who will inflict an evil in case his desire be disregarded, utters a command by expressing or intimating his desire. He who is liable to the evil in case he disregard the desire, is bound or obliged by the command.

The evil which will probably be incurred in case a command be disobeyed or (to use an equivalent expression) in case a duty be broken, is frequently called a sanction, or an enforcement of obedience. ...In short, I am determined or inclined to comply with the wish of another, by the fear of disadvantage or evil. I am also determined or inclined to comply with the wish of another, by the hope of advantage or good. But it is only by the chance of incurring evil, that I am bound or obliged to compliance. It is only by conditional evil, that duties are sanctioned or enforced. It is the power and the purpose of inflicting eventual evil, and not the power and the purpose of imparting eventual good, which gives to the expression of a wish the name of a command.‘

Such are Austin’s views on the nature of law, duty, and obligation. They are views which are now commonly held in English legal circles. They are the views which form the basis of the science of jurisprudence as it is now taught at our national universities, explained and enforced in the leading encyclopædias and law books. They are, we believe, utterly false, and in the end subversive of peace and order. As long indeed as the majority in a nation hold the true principles of authority, right and justice, there is every probability that the nation’s laws will be conformed to those principles; but if socialism gains over the majority, then there appears no reason why, acting on these principles, the law will not become socialistic, why it will not impose an obligation on those who have, to transfer their belongings to those who have not, and if they do not obey, the law will have its sanctions to compel them. International politics teach us what to expect in domestic affairs. The possessions of the weaker nations are being divided among the stronger, and, politicians tell us, there is sure to be fighting over the spoil. It is:

4 Lectures on Jurisprudence, Vol. I., p. 90.

The good old rule, the simple plan That they should take who have the power And they should keep who can.

The whole civilized world has recently been shocked by the application of such principles on a large scale.

If one should be so benighted as to use the old argument that unjust laws are against the law of God, and have no validity, he has already been impatiently and indignantly answered by Austin:

Now, to say that human laws which conflict with the Divine law are not binding, that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death ; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, who has commanded that human lawgivers shall not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity. An exception, demurrer, or plea founded on the law of God was never heard in a Court of Justice, from the creation of the world down to the present moment.

But this abuse of language is not merely puerile, it is mischievous. When it is said that a law ought to be disobeyed, what is meant is that we are urged to disobey it by motives more cogent and compulsory than those by which it is itself sanctioned. If the laws of God are certain, the motives which they hold out to disobey any human command which is at variance with them, are paramount to all others. But the laws of God are not always certain. All divines, at least all reasonable divines, admit that no scheme of duties perfectly complete and unambiguous was ever imparted to us by revelation. As an index to the Divine will, utility is obviously insufficient. What appears pernicious to one person may appear beneficial to another. And as for the moral sense, innate practical principles, conscience, they are merely convenient cloaks for ignorance or sinister interest; they mean either that I hate the law to which I object and cannot tell why, or that I hate the law, and that the cause of my hatred is one which I find it incommodious to avow. If I say openly, I hate the law, ergo, it is not binding and ought to be disobeyed, no one will listen to me; but by calling my hate, my conscience or my moral sense, I urge the same argument in another and a more plausible form: I seem to assign a reason for my dislike, when in truth I have only given it a sounding and specious name.⁵

⁵ Lectures on Jurisprudence, I., p. 221.

One wonders what Austin would have said to the officers of a socialistic government which had just passed a law abolishing private property, when they should come to him to enforce the law, by requiring him to give up the fruits of his labor and thrift. But as a rule ideas work themselves out too slowly to permit of us seeing the spectacle of the real author of anarchy and revolution tasting the fruits of his own principles.

However, we are not concerned with the refutation of Austin’s views on jurisprudence. We wish to see how they bear on civil law and conscience. For if they are the views which prevail now in England in legal circles, we may infer that the obligation which those who make and enforce the laws wish to impose upon us, is the obligation of positive law as Austin understood it. But the only obligation of positive law according to Austin, is the chance of incurring the evil assigned by the law as a penalty for the breach of it. “It is only by. the chance of incurring evil, that I am bound or obliged to compliance. It is only by conditional evil, that duties are sanctioned or enforced.” “Being liable to evil from you if I comply not with a wish which you signify, I am bound or obliged by your command, or I lie under a duty to obey it.”

It is clear that according to these views positive law as such imposes on the conscience no obligation under sin; indeed in Austin’s view to say that positive law as such imposes no moral obligation, is merely to enunciate a truism. In other words, positive law, according to the intention of the majority of those who make and enforce it, commands a thing to be done or to be forborne only under pain of submitting to the penalty enjoined in case of disobedience. So that we may safely maintain with Blackstone that British positive laws are not moral laws, but purely penal laws in the theological sense.

Idealism has its representatives, it is true, among English philosophers. According to this school the only possible source of moral obligation is from within. As one of the chief of its writers, the late Professor T. H. Green says in his book on the Principles of Political Obligation: “ Morality consists in the disinterested performance of self-imposed duties ” (p. 40). And in another place —“ Morality and political subjection have a common source. . . . That common source is the rational recognition by certain human beings of a common well-being which is their well-being and which they conceive as their well-being whether at any moment any of them is inclined to it or no, and the embodiment of that recognition in rules by which the inclinations of the individuals are restrained, and a corresponding freedom of action for the attainment of well-being on the whole is secured ” (p. 124).

It may be doubted whether this school of writers has much influence on English public or private life. In any case it is clear that there can be no question of sin in the violation of self-imposed rules of conduct.