Civil Law

164. What it is. 1. A penal law is that which does not oblige in conscience to doing or omitting something, but only to undergoing punishment if, in a case of transgression, it has been inflicted. And this indeed is called a merely penal law, so that it may be distinguished from a mixed law, which is preceptive and at the same time penal (n. 110. 4).

Therefore penal laws do not strictly oblige to doing or avoiding what is established through the law, but only to accepting the punishment as just, if the action or omission intended by the law has not taken place. A merely penal law is not a law which in no way obliges in conscience, but is a law which induces no other obligation of conscience except to undergoing punishment.

2. That the legislator can establish merely penal laws is not doubtful: for a merely penal law has the character of true law, equally as a preceptive law does; but it depends upon the will of the legislator what kind of law he wishes to establish. Besides, the common good sometimes does not require any law other than a penal one, because subjects are sufficiently impelled to observe the law from fear of punishment alone.

a. There are indeed some scholastic doctors who deny that there can be a merely penal law. One or another of the more recent theologians accedes to them.² Their arguments are these: a. It belongs to the nature of law that it oblige in conscience; but a merely penal law is an arbitrary law (ein blosses Willkurgesetz), namely one whose existence is attributed to the choice of the prince and whose observance is permitted to the choice of subjects. b. Punishment supposes fault; but he who transgresses a penal law does not commit fault, since it does not oblige in conscience.

b. But the common opinion of doctors, that there can be merely penal laws, must altogether be held. Certainly every law intends some act either to be placed or to be omitted; now, in order that a law may attain that which it intends, either it commands the act itself and obliges to it in conscience, or it proposes the act and hypothetically commands the punishment, namely if the act is not done or is not omitted. Therefore the proper object of a penal law is the punishment hypothetically to be undergone, which in this law is not the sanction of the law nor the vindication of fault, but the means by which the legislator urges subjects to the act proposed and intended by the law.

c. To the arguments of those who deny it, it must be noted: a. It does not belong to the nature of law that it oblige in conscience to the act which it intends, but it is enough that it oblige to punishment if the intended act is not done. b. Punishment supposes either moral or civil fault, but not always moral fault. Or better thus: punishment properly so called supposes fault, but not punishment broadly so called, which supposes only a just cause on account of which it is inflicted. For punishment broadly so called is any inconvenience whatever which is imposed by a superior from a just cause, which in this case is the omission of the act intended by the law.

¹ Suarez l. c. l. 5. c. 3 ss. Biederlack, Die Lehre von den Poenalgesetzen (Zeitschr. f. k. Theol. 1899. S. 155 ff.).

² Cf. Tubinger theol. Quartalschrift 1898 S. 655 ff. 1900 S. 204 ff. 1902 S. 575 ff.

165. Whether and what laws are penal. Therefore it is asked whether merely penal laws have in fact been established and exist.

1. Although the Church can issue merely penal laws, nevertheless in fact, if the rules and statutes of certain religious orders are excepted, scarcely any merely penal ecclesiastical laws exist;¹ but merely penal civil laws do exist.

2. Merely penal civil laws in general are all those whose end can be sufficiently obtained by the fact that subjects are compelled to their observance by fear of punishment alone, unless the legislator has declared otherwise. But specifically these are judged penal: a. statutes which refer to the external order of the community (die Polizeiverordnungen); b. laws concerning the cutting of wood, concerning hunting, fishing, grazing in the forests, pastures, or marshes of the community, where this is prohibited under punishment. Whether, besides these, there are other laws (laws of taxes and of military service) will be said in their places.

3. Universally, laws are preceptive whose end cannot be sufficiently obtained unless subjects are compelled to their observance also by fear of fault; of this kind are: a. laws which confirm the natural or positive divine law; b. laws which immediately contribute to the common good, such as laws which refer to contracts, to public offices, etc.; c. laws which define rights, such as a law which attributes to the father the usufruct of the goods of children, a law which from paternal goods attributes a legitimate portion to the children, etc.

This principle, that civil laws can be held as penal which by their nature do not require that they be preceptive, especially holds concerning laws which are established in great number by modern governments; a. because governments as they now are employ only external means for urging the observance of laws, but make little of the obligation of conscience, and therefore implicitly declare that they do not urge internal obligation; b. because the common persuasion of citizens, even of those who are of timorous conscience, has prevailed that these laws do not oblige in conscience.

¹ Cf. Wernz, Ius decretalium n. 112.

166. Notion. 1. An invalidating law is said to be that which renders invalid acts which, considered in themselves by the law of nature alone, would be valid.

a. Invalidations are chiefly concerned with contracts, marriage, vows, oaths, religious profession, elections, and benefices.

b. The reason for this law is that frauds, dangers, and other inconveniences may be warded off from society, and in this way the common good may be promoted.

c. From these things it is clear that an invalidating law of itself is not penal; but because the invalidation of an act falls to the burden of the agent, it can be imposed as a punishment for a delict.

2. A twofold invalidation must be distinguished:

a. Moral invalidation, by which an act is deprived of the natural value which it has by the law of nature in the forum of conscience, and civil invalidation, by which an act is deprived only of the positive value which it has from civil law in the external forum. An act civilly invalid produces no right which the political power acknowledges and protects; but in the forum of conscience it produces its right just as if the invalidation were not present.

b. Moral invalidation is either lata, if the effect is produced by the law itself, or ferenda, if the effect is produced through the sentence of a judge. An act of this kind has and retains its natural value unless it is invalidated through a sentence.

167. Division. Invalidating laws are divided: a. Into laws which render an act invalid by the fact itself, and into laws which make an act rescindable through the sentence of a judge.

b. Into laws which prohibit and at the same time invalidate an act, such as diriment impediments of marriage, and into laws which only invalidate an act and do not prohibit it, such as the formalities of wills.

The former oblige in conscience to omitting the act; but the latter of themselves do not oblige to omitting the act, but only to undergoing the effects of the invalidation either already before or at least after the sentence of the judge. Therefore it is not lawful, e.g., to enter marriage with a diriment impediment, but of itself it is lawful to make a will without legal form.

c. Into merely invalidating laws, which are established only for the common good, which postulates that certain acts be invalid, as the law invalidating marriages which are celebrated without the form having been observed; and into penal invalidating laws, which are established as a punishment of the agent, as the impediment of crime, which diriments marriage. The former suppose no fault in the agent.

168. Principles. 1. All concede that both ecclesiastical and civil legislators have the power of issuing invalidating laws, because this is useful, and sometimes even necessary, for the common good. Therefore they can establish invalidating laws, not indeed at will, but as the common good requires.

Nor should it be said that this doctrine supposes something that is false, namely that positive law prevails over natural law: for the law of nature itself requires that social power be furnished with this faculty for the common good. Wherefore natural laws of this kind, e.g. concerning the value of donations, are not absolute but conditioned, namely unless they are invalidated by positive law.

2. Ecclesiastical invalidating laws render the act itself invalid naturally and in conscience; but civil invalidating laws before the sentence of a judge of themselves render the act invalid only civilly and in the external forum, unless something else is certainly established either from the object or from the words of the law.

For where the end intended by the legislator can be obtained even if he does not touch the forum of conscience, he is judged to employ only external means for the end. And this indeed must be conceded the more readily because modern legislators rather often do not acknowledge obligation of conscience properly so called. But after the sentence of a judge the act must be held invalid even naturally and in conscience, because the sentence is founded upon the presumption of common danger.

3. A purely invalidating law obtains its effect even if it is invincibly unknown or the act is placed from grave fear: for it is required by the common good that the law should not cease on account of invincible ignorance or grave fear of the agent; therefore a marriage contracted in good faith with an invalidating impediment is null. A penal invalidating law, which joins the invalidation of the act as a punishment for the violated law, does not invalidate the act where ignorance or grave fear excuses from fault: for when fault, which is the cause of punishment, is lacking, the effect or punishment also is lacking.

If fault is committed, but the punishment of invalidation is unknown, some with Suarez¹ judge that the invalidation remains, because ignorance which does not excuse from fault also does not excuse from the punishment added to the fault, even if it is unknown; but others with Sanchez² teach that the invalidation does not remain: for delinquents indeed incur ordinary punishments proportioned to the delict, even if they are ignorant of them, but they do not incur extraordinary or exorbitant punishments if they are ignorant of them; but the invalidation of an act is an extraordinary and exorbitant punishment. Therefore they judge that crimes which otherwise diriment marriage do not induce a diriment impediment if the punishment of invalidation is unknown. This opinion indeed is probable.

4. An invalidating law indeed ceases in a case of common impossibility or of most grave common inconvenience, but it is not certainly established that it ceases also in a case of private impossibility or of most grave private inconvenience.³

¹ Cf. De legibus l. 5. c. 22. n. 4.

² Cf. Opus morale in praecepta decal. l. 1. c. 16. n. 15.

³ Cf. Ballerini-Palmieri I. n. 318 ss.

We saw in Chapter VI that if the legislator chooses, and if he thinks it will be for the public good, he may intend a positive law made by him to bind, not under pain of committing sin by its mere violation, but only under pain of being obliged to pay the penalty imposed. Such a law is, as we saw, called by theologians a penal law. Besides the rules and constitutions of certain religious orders, ecclesiastical legislation does not afford many examples of penal laws. As a rule, ecclesiastical laws are either moral laws or mixed; they forbid or command an action under pain of sin, and frequently they impose a penalty on transgressors.

It may be asked whether ignorance excuses from the penalty imposed by a law. This question is now settled by Canon 2229.

Sec. i. Affected ignorance, whether of a law or of a penalty only, excuses from no penalties latae sententiae.

Sec. ii. If a law has the words, shall have presumed, dared, knowingly, studiously, rashly, designedly done it, or other similar phrases which require full knowledge and deliberation, any diminution of imputability whether on the part of the intellect, or of the will, exempts from penalties latae sententiae.

Sec. iii. If a law has not those words, ignorance of the law, or even of the penalty alone, if it were crass or supine, exempts from no penalty latae sententiae, if it were not crass or supine it excuses from medicinal penalties, but not from vindictive penalties latae sententiae.

Some penalties are by the will of the legislator incurred by the very fact of committing the crime to which the penalty is attached; others require the sentence of the judge. Penalties which require some action on the part of the delinquent, and especially if deprivation of office is annexed to it, as a rule require the sentence of a judge; the guilty party cannot be expected to punish himself.

In order to make sure of attaining the end he has in view, the legislator sometimes annuls and makes void some act which otherwise would have its natural effect. Such a law is called a voiding or annulling law, and there are many examples of it both in civil and ecclesiastical legislation. Thus a deed is void unless sealed, signed, and delivered; a will is void unless made with the requisite formalities; marriage between near relations is null and void. Sometimes the law makes an act voidable only, and not immediately void, at the instance of someone who must move in the matter; otherwise the act will remain valid. Thus a contract entered into under constraint is voidable by English law; a gift made of his property by a religious under simple vows is voidable by his superior, unless it has taken effect and a third party has thereby acquired rights. Sometimes the law does not annul the act or make it voidable, but it refuses to grant an action to vindicate a claim or it bars the remedy. Thus English law will not aid the winner to recover a wager, nor does an action lie to recover payment of a debt barred by lapse of time.

A voiding law sometimes directly affects the act, and makes it of no effect, as does an impediment of marriage; sometimes it immediately affects the capacity of the person, as ecclesiastical law deprives religious who are solemnly professed of the capacity to make a valid will; sometimes it annuls an act destitute of certain formalities, as a clandestine contract of marriage.

If a voiding law also prohibits the acts which it annuls, it binds subjects not to perform such actions; charity and justice require also that a lawyer employed to make a will should draw it validly according to the law; otherwise one who performs an act made void by law, but which is not morally wrong or injurious to others, does not commit a sin.

Neither ignorance, nor grave fear, nor serious private inconvenience avail to make valid an act which has been made void by the law. For none of these causes affects the objective validity of the act which the law strikes at for the common good. If, however, a voiding law causes great public inconvenience, then it ceases to be for the common good; it ceases to be useful, and thereby ceases to be a law with binding force.

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,

A very probable opinion of long standing in England maintains that merely positive laws are penal, and do not bind under sin except to submit to the penalty in case of violation, and if it be imposed. Of course, it is well that all subjects should loyally obey all the just laws of their country, and good citizens will make a point of doing so; but in moral theology we are concerned with the question of sin, and it is probable that one who violates a positive law of England does not commit sin thereby if he be prepared to submit to the penalty, if imposed. This is the teaching of Blackstone, and although other views concerning legal obligation have become fashionable since he wrote, his opinion would seem not to be materially affected thereby. According to Austin, the chance of incurring the evil imposed by the legislator on those who transgress his laws is the only possible obligation of law—a doctrine which would make all laws penal, and nothing else but penal. The idealist school does not accept Austin’s views, but its only conception of moral obligation is that it is self-imposed; it denies that moral obligation is or can be imposed by a legislator.¹ It is true that if the legislator wished to impose a strict and perfect obligation by positive law, the subject would be bound under sin to conform to it, but the English legislature cannot be said to do this, as the common opinion in the country, on one ground or another, is that a moral obligation under pain of sin is not imposed by positive law.

¹ 'T’. H. Green, Lectures on the Principles of Political Obligation,

The effect of voiding laws in English jurisprudence seems to be not to invalidate an act or a contract which is otherwise valid, but to empower the party concerned to annul it if he choose to take advantage of the law. Unless the party concerned move in the matter, the act struck at by a voiding law will remain valid. This seems to be the view which lawyers take of the effect of such laws; it is in keeping, too, with a very prevalent theological opinion concerning the nature of voiding laws in modern jurisprudence.¹

¹ Encyclopedia of the Laws of England, s.v. “Null and Void.”

I. Civil law is the complex of laws made by civil authority.

II. Civil law is distinguished:

1. By reason of time, into old and modern law.

a) Old law, by which Roman Law is understood, consists of four parts, which are: 1. the Institutes; 2. the Digest or Pandects (pan and dechomai, as if things which contain all); 3. the Code; 4. the Novellae, as if newly issued.⁴

b) Modern law is the law which each kingdom has established for itself, especially from the time of the upheaval of the republic in France, that is, at the end of the eighteenth century.

2. By reason of scope, civil law is distinguished into international and national law.

a) International law is that which is established by express pacts entered into among the rulers of nations. It is called public or private according as it moderates the relation of state to state, or of the citizen of one state to the citizen of another state.

b) National law is that which has been established for a determinate state, such as Dutch law.

¹ Cf. Marcellus a Puero Jesu, Ethica moralis et socialis, pp. 336-340.

² Cf. Lijdsman, Introductio in Ius Canonicum, n. 64 sq.

³ Cf. Lijdsman, Introductio in Ius Canonicum, n. 52 sq.

⁴ They are usually cited in this way: Institutes: § 1 Instit. de adoptionibus lib. I, tit. 11 = § 1, I. I, 11. Digest: the beginning of law, or fragment, 4, Digest, or Pandects, ff., de pactis, book II, title 14 = l. 4 pr. D. II, 14 (fr. 4 pr. ff. II, 14) = l. 4, § 1, D. II, 14. Code: law 7, § 1, Cod. de diversis rescriptis, book I, title 23 = l. 7, § 1, C. I, 23. Novellae: Nov. VII praef. = Nov. VII, cap. 1.

I. The existence of legislative power in the civil state is proved:

1. From Sacred Scripture, which recognizes power of this sort in civil governors, and in subjects the obligation of subjecting themselves. "By Me kings reign, and lawgivers decree just things; by Me princes rule, and the mighty decree justice."¹ "Give ear, you who contain multitudes and please yourselves in the crowds of nations, because power has been given to you by the Lord, and strength by the Most High."² "Let every soul be subject to higher powers; for there is no power except from God; and those that are, are ordained by God. Therefore he who resists the power resists the ordinance of God. And those who resist acquire damnation for themselves; for princes are not a terror to the good work, but to the evil. But do you wish not to fear the power? Do good, and you shall have praise from it, for it is God's minister to you for good. But if you do evil, fear; for it does not bear the sword without cause. For it is God's minister, an avenger unto wrath against him who does evil. Therefore be subject of necessity, not only because of wrath, but also because of conscience. For therefore you also pay tribute; for they are ministers of God, serving unto this very thing."³ "Be subject, therefore, to every human creature for God's sake: whether to the king as preeminent; or to governors as sent by him for the punishment of evildoers and for the praise of the good; because so is the will of God, that by doing good you may silence the ignorance of foolish men: as free, and not as having liberty as a cloak for malice, but as servants of God. Honor all: love the brotherhood: fear God: honor the king."⁴

2. It is clear from the nature of civil society. For it commonly happens that many things which are necessary or very desirable for the civil good, or the full sufficiency of human nature, distinguished through families and stocks and through changes of times and places, are not evident to all, or are not spontaneously procured by all according to their powers. Therefore it is necessary that in civil societies there be an authority by which those things which are opportune for the civil good can be imposed, and by coercion, with penalties imposed, exacted from the unwilling.⁵

¹ Prov. 8:15-16.

² Wis. 6:3-4.

³ Rom. 13:1-7.

⁴ 1 Pet. 2:13-18.

⁵ Cf. encyclical of Leo XIII, Diuturnum, June 29, 1881.

II. The derivation of civil legislative power from God is clear:

1. From Sacred Scripture, which, as follows from the testimonies brought forward, not only establishes legislative power, but also manifestly signifies that it is derived from God: "By Me kings reign," etc.

2. There is added the fact that legislative power, or rather authority which also involves legislative power, is derived either from God or from a social pact, explicit or implicit, by force of which the rights proper to authority, such as the right of making laws, the right of life and death, the right of war, etc., belong to some physical or moral person.¹ But, to use the words of Leo XIII, "the pact, as they proclaim it, is openly imaginary and fictitious, and is not capable of imparting to political power such measure of strength, dignity, and firmness as the protection of the commonwealth and the common advantages of citizens require."²

Nevertheless, there is dispute concerning the manner by which authority is derived by God into a determined subject, whether physical or moral. According to some, the Author of nature immediately confers authority upon the physical or moral person who, for example, by singular aptitude, or by dominion of territory, or by patriarchal power, or by victory, or by election of the people, is designated as the one to be endowed with authority. According to others, God immediately gives authority to the whole people, that is, to the multitude of citizens, not formless, but formed by the relation of rights and duties in order to the perfect good; and the people, as is customary, transfers it to another subject, whether physical, as to a king, or moral, as to a college of aristocrats.³

¹ J. J. Rousseau (d. 1778) establishes a pact of this sort; he further teaches that human beings freely constituted society by such a pact. "But it is a great error not to see what is manifest: that human beings, since the race is not solitary and wandering, are born into a natural community apart from their own free will" (encyclical Diuturnum).

² Encyclical Diuturnum, June 29, 1881.

³ Cf. Marcellus a Puero Iesu, Ethica moralis et socialis, pp. 117-128; Billot, De Ecclesia Christi, 4th ed., pp. 491-504.

III. The subject of civil legislative power is the supreme governor of society. But the supreme governor can be either a physical person, as in monarchy, or a moral person, which can be constituted either by the nobler part of the people, as in aristocracy, or by a few in number, as in oligarchy, or by the whole people, as in democracy; or even a physical and moral person taken together, as in constitutional monarchy.¹ Hence in Catholic doctrine, as Leo XIII says, "there is no question about the forms of commonwealths; for there is no reason why the Church should not approve the rule of either one or several, provided only that it be just and directed toward the common advantage. Wherefore, justice being preserved, peoples are not forbidden to procure for themselves that kind of commonwealth which more aptly suits either their own character or the institutions and customs of their ancestors."²

¹ In the Netherlands it resides with the King and the General Estates of deputies of both orders. "The legislative power is exercised jointly by the King and the States General" (Fundamental Law, art. 109). "All proposals of law accepted by the States General and approved by the King acquire the force of law and are promulgated by the King" (Fundamental Law, art. 121). From these things it is clear that among us the form of government is composed of a monarchical and a democratic element: "monarchical," indeed, as is clear; "democratic," because the deputies represent the people. A form of government of this kind is called constitutional representative government of the people.

² Encyclical Diuturnum, June 29, 1881.

IV. The relation between ecclesiastical and civil power.

1. Each power, ecclesiastical and civil, is perfect and independent in its own sphere. "God has divided the care of the human race between two powers, namely, ecclesiastical and civil: the one set over divine things, the other over human things. Each is supreme in its own kind; each has certain limits within which it is contained, defined by the nature and proximate cause of each; whence, as it were, a certain sphere is circumscribed, in which the action of each may be exercised by its own right."¹ Hence proposition 19 of the Syllabus was rightly condemned: "The Church is not a true and perfect society, plainly free, nor does she possess her own proper and constant rights conferred on her by her divine Founder; but it belongs to the civil power to define what the rights of the Church are, and the limits within which she can exercise those rights";² and the 39th: "The State, as the origin and source of all rights, possesses a certain right circumscribed by no limits";³ and the 44th: "The civil authority can involve itself in matters which pertain to religion, morals, and spiritual governance."⁴ And St. Thomas rightly concludes: "In those things which pertain to the salvation of the soul, the spiritual power is to be obeyed more than the secular, according to that saying in Matt. 22: 'Render the things that are Caesar's to Caesar, and the things that are God's to God'" (II Sent., dist. 44, q. 2, a. 4, ad 4).

2. In a conflict, the ecclesiastical power prevails, since it is the higher power. Hence proposition 42 of the Syllabus was condemned: "In a conflict of laws of either power, the civil law prevails."⁵

¹ Encyclical of Leo XIII, Immortale Dei, November 1, 1885.

² Denzinger-Bannwart, n. 1719.

³ Denzinger-Bannwart, n. 1737.

⁴ Denzinger-Bannwart, n. 1744.

⁵ Denzinger-Bannwart, n. 1742.

I. A citizen present in the territory of his own kingdom, and this also holds for a naturalized citizen, as it is called, is held by the just laws of his own kingdom which regard him; likewise by the laws of a foreign kingdom which regard goods possessed there.

II. A citizen staying in foreign territory: 1. is held only by those laws of his own kingdom which regard his duties, burdens, and goods in his own territory; 2. is bound by those laws of the foreign kingdom which regard public order, the punishment of delicts, and goods possessed there. Princes, however, and their legates staying in foreign territory are immune from the laws of that territory by international law; nevertheless, equally with private persons, they are subject to the very decrees of the law of nations or international law, unless they are expressly exempted.¹

¹ Sweens, Theol. mor. fund., 3rd ed., n. 409; Aertnys-Damen, Theol. mor., 11th ed., I, n. 153.

III. Clerics are not subject to laws which are opposed to their privileges. Furthermore: 1. all clerics are immune from military service, and from public civil duties and offices foreign to the clerical state (can. 121); 2. for clerics who are compelled to satisfy creditors, those things which, according to the judgment of a prudent ecclesiastical judge, are necessary for their support are to be preserved, while nevertheless their obligation of satisfying creditors as soon as possible remains firm (can. 122); 3. how far they can be summoned before a lay judge is established by can. 120, and will be explained in the treatise on the duties of judges. But as regards immunity from tax laws, which clerics once enjoyed, the Church seems to have tacitly renounced this as regards common taxes, that is, as regards burdens either personal or imposed on the private goods of clerics, even those which come to them from a benefice or office. Indeed, the same today, at least in most states, holds for burdens imposed on ecclesiastical goods, that is, on goods which pertain not to the private dominion of clerics but to the dominion of the Church.

What has been said about clerics holds also concerning religious, even lay religious and novices (can. 614), and likewise concerning societies, whether of men or women, living in common without vows according to the norm of can. 673 (can. 680).

IV. The Pontiff is plainly immune from civil jurisdiction. For to the head of a supreme perfect society there belongs the immunity which is necessary for the exercise of his office. But such is immunity from civil jurisdiction. For, if civil jurisdiction over him were admitted, he could also unwillingly be judged and punished by civil authority, and this for the same reason as other subjects. But the right of punishing the Supreme Pontiff for the same reason as other subjects, for example by imprisoning him, driving him into exile, etc., cannot be reconciled with the exercise of his office. There is added the fact that the Supreme Pontiff declares himself immune from civil jurisdiction, and exempts others from subjection to civil authority;¹ one who is antecedently subject cannot do this. The Pope cannot truly renounce this immunity, although its exercise can be moderated according to circumstances.

¹ Cf. Wernz, Ius Decret., t. III, n. 146; Dirckx in N. Kath. Stemmen, 1903, p. 100 sq.; Laurentius, Instit. Iur. eccl., n. 1099.

Meaning.—Just as the Church has the right and duty to make laws which will promote the spiritual welfare of her members, so has the State the power and obligation to legislate for the temporal happiness of its citizens: “There is no power but from God and those that are, are ordained of God. He (the ruler) is God’s minister to thee for good” (Rom., xiii. 1, 4).

Origin.—The authority to make civil laws resides in that person or body to whom according to the constitution of the State the legislative function belongs. (a) In an absolute monarchy, the legislative authority is vested in the prince; (b) in a state that has an appointed or hereditary aristocracy, the legislative power may be entrusted, at least in part, to a body of nobles; (c) in a limited monarchy or republic the lawmaking function belongs to the people, who exercise it either directly or (as is the case in most modern states) indirectly through elected representatives.

The acceptance of civil law by the people is not necessary for its obligation, for obedience to higher powers is commanded (Rom., xiii, 5), and, if law has no authority, the common welfare is defeated. Several points must, however, be noted.

(a) The foregoing principle is to be understood of law in itself, for, if there is question of the form of government or of him who exercises the powers of sovereignty, acceptance by the people may be said to be necessary in the sense that the multitude may set up the particular system of rule which it prefers, and may designate the individuals who are to wield authority under the constitution adopted.

(b) The principle given above is to be accepted regularly speaking, for there may be cases in which the acceptance of the people is required by law itself. Example: Under former civil constitutions, if in a certain place a lawful custom was in force, a contrary law which did not expressly abolish the custom did not oblige unless accepted. But this example is theoretical, for modern civil codes do not recognize the derogatory force of custom. If the constitution of the state calls for a referendum or plebiscite (i.e., submission to the electors for ratification), then the bill passed by the legislature or a measure proposed by the initiative body lacks force until accepted. This illustrates acceptance of a proposed law, but the acceptance is supplemented by some ministerial act.

(c) The principle given above is to be understood of the taking effect of a law, for the continuance of a law may depend on the acceptance of the people in the sense that a contrary custom of the people is able to abrogate law, if the superior consents (see 500 sqq.). Few codes of modern states give legal force to popular custom; they suppose that, if a law is not satisfactory to the people, the way is open to its repeal through exercise of the suffrage. But, morally speaking, there is no obligation to obey a law that has fallen into desuetude.

As to laws made by one who has no lawful authority, we should note: (a) of themselves, they have no binding force, since law is an act of authority; (b) from the necessities of the case, they are obligatory, if, being otherwise just, they are accepted by the great body of the people; for to resist them then would be prejudicial to public order.

The Obligation of Civil Law.—Civil law, when it has all the conditions of valid law, even if the legislator is non-religious or anti-religious, is obligatory not only before the State, but also before God (i.e., in conscience). This is; (a) by reason of the natural law, of which it is a derivation (see above, 313); (b) by reason of divine positive law, for it is frequently declared in scripture and in the Church’s teaching and practice that lawful authority represents God and must be obeyed for conscience’ sake: “Render to Caesar the things that are Caesar’s” (Matt, xxii 21), “Be subject of necessity, not only for wrath, but also for conscience’ sake” (Rom, xiii. 5).

Are subjects obliged to offer themselves for punishment prescribed by law?

(a) If the fault committed was merely juridical (i.e., before the law), the penalty is certainly not obligatory before sentence. Example: Balbus through sheer accident, and without design or negligence, kills a man. If involuntary homicide is punished by imprisonment, Balbus is not bound to give himself up. English common law, it should be noted, presumes a man innocent until proved guilty, and a man cannot be convicted of any degree of homicide on his own confession alone. But he may plead guilty to minor offenses.

(b) If the fault committed was theological (i.e., before God) and the penalty is primitive (i.e., the loss of some right or privilege), the penalty is obligatory in conscience. In Canon Law such penalties are sometimes ipso facto, that is, before sentence (e.g., suspension of a cleric); but the civil law, it seems, imposes penalties only after judicial declaration. Example: Titus on account of bribery has forfeited the right to vote; but he has not been declared guilty by court, and hence may continue to use the right of suffrage.

(c) If the fault was theological and the penalty incurred is active (e.g., exile, imprisonment, fine), the penalty is not obligatory before sentence; for it would demand too much of human nature to require that one deliver oneself up to exile, accept confiscation, etc. The apprehension and detention of the guilty is imposed by law as a duty on the police and other officers, not on the guilty.

The kind of obligation imposed depends on the will of the lawgiver: (a) he can oblige under pain of sin, or under pain of nullity or punishment; (b) he can oblige under pain of grave sin, or under pain of venial sin.

Generally speaking, the legislator is held to oblige under pain of sin in the following cases: (a) when the law is a just determination of the natural law (e.g., the laws that determine ownership); (b) when the law is directly concerned with and necessary to the public good (e.g., laws on national defense in time of war, laws that impose necessary taxation, etc.; see above, 379).

The legislator is held not to oblige under sin in the following cases: (a) when the law is enacted as penal, or is prudently regarded as such—as is the case with laws that are of minor importance or that can be enforced without a moral obligation—laws useful rather than necessary; (b) when the law is merely irritant or inhabilitating, the subject is not obliged to omit the act invalidated, but only to suffer the consequence of nullity before the law.

In doubt as to the obligation of a law, what is the duty of the subject? (a) If there is doubt concerning its justice, the subject can always observe it with a safe conscience. One may obey an unjust law, until it is judicially declared unjust, if it is not manifestly opposed to divine or human rights. (b) If there is doubt whether a law obliges under sin or not, the subject does not sin directly by non-observance (see 375, 376, 377, 561).

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.

What is the nature of an invalidating law, and of how many kinds is it?

In natural law there is no invalidating law; but by natural law an act is valid or null, or void, by reason of the defect of a substantial element. The elements of a human act are only two: consent and object. If consent is lacking, the act is null, as a fictitious promise, which is not a promise. Likewise, if the object is lacking, the act is null, as the sale and purchase of a precious gem which is only glass. Finally, if the object is illegitimate and shameful, as a society of robbers, the act likewise is null, or rather void, since that act can produce no effect of moral obligation. An invalidating law, properly, is that law which commands that some act, of itself valid by natural law for producing its effect, be void and of no force. The law of nature indeed seems to require nothing further for the validity of some act, beyond those things which are substantial to the act, namely consent and a suitable object, if the matter is considered abstractly, without its circumstances. But the law of nature itself requires that, with account taken of the circumstances, all things be done concretely in such a way that they conduce to the common good. But the determination of those things which contribute to the common good, from the law of nature itself, belongs to him who has care of the community. Wherefore the same law of nature requires that those acts be held as invalid which the public power declares to be such.

Moreover, some laws command an act to be void by the law itself, by full right; others render it only liable to rescission. C. G. 1117, 1118, 1125, 1644, 1648. The former primarily and directly regard the public good, as those which establish the essential conditions of contracts, C. I. 1104, 1119; C. G. 1108, 1131; the essential conditions of religious profession: age, novitiate, simple vows, Council of Trent, Pius IX, etc. But the latter directly and primarily regard private good, as those which grant restitution in full to minors, wives, interdicted persons, C. I. 1300 ff.; C. G. 1304 ff.; Gousset on a. 1304. In these the office of a judge is required, namely if he in whose favor the laws were introduced wishes to use their benefit. But in the former there is no need of a sentence of a judge, unless actual rescission is confused with rescindibility. Nor is it valid to say that it is permitted to no private person to declare law for himself. Certainly in the external forum; but not at all in the internal forum of one's own conscience, where the truth is manifestly established. From C. B. 142, when a rescindible act is charged with nullity, it must be considered as null from the beginning. For things return to their former state. The rescission of an act can also be introduced in hatred of some crime, as the impediments of marriage, of crime, the nullity of a simoniacal conferral of a benefice, etc. In such a case it must be seen whether the nullity of the act has been introduced primarily and directly by reason of itself on account of the common good, or in punishment of the crime. For in the first case the law is simply, or at least primarily, invalidating; but in the other it is primarily penal, and puts on the nature of a penal law, since the accessory follows the principal. Suarez, de Legibus, l. 5, c. 19, n. 5; c. 21, n. 2 ff. If the rescission of the act is not constituted by the law itself, the judge cannot introduce it by his own sentence. For it belongs to the judge to judge according to the laws, not to make laws. C. Ad Apostolicam 16, De Regul.

Acts are invalidated by law either because the acts themselves are prohibited by law; or because the person is declared incapable by law; or because the act was done without the form constituted by that same law. - If the law prohibits the act and at the same time invalidates it, the law is at once prohibiting and invalidating, and it obtains force at the same time in the external and internal forum, as, e.g., the renunciation of an inheritance not yet opened, C. I. 1118; C. G. 1130; the renunciation of prescription not yet completed, C. I. 2107; C. G. 2220; the simoniacal conferral of a benefice, Pius IV, C. Romanum Pontificem, 17 Oct. 1564; St. Pius V, Cum primum, VI Kal. Apr. 1566. But if the law indeed prohibits the act, but does not invalidate it, the act is valid in both forums; otherwise the law would no longer be merely prohibiting, but at the same time invalidating. And thus mixed marriage, although illicit, is nevertheless valid.

If a person is declared incapable by law, the law is properly called inhabilitating; as, e.g., by ecclesiastical law blood relatives are declared incapable for marriage; by civil law wives are declared incapable for contracting. This incapacity: one is properly such, and renders the act void; another is less properly such, and does not render the act of such a person void, but liable to rescission, and restitution in full is granted. C. I. 134, 319, 339, 1106, 1300; C. G. 215, 484, 513, 1124, 1304. Now incapacity can be constituted on account of good morals, on account of dangers to be averted, or on account of the state or condition of the person in society.

If on account of good morals, incapacity is to be understood, and consequently also the invalidation of the act, in both forums, external and internal. And thus theologians commonly teach that a father sins and makes the act void who makes a donation against the law to an adulterine son, and the son himself sins by accepting the void donation. Lugo, de Iust. et Iur., d. 24, n. 92. If on account of dangers to be guarded against, incapacity and invalidation are to be understood in both forums also; otherwise nothing would be guarded against. And so judges and officials of the public ministry cannot redeem lawsuits, C. I. 1458; C. G. 1597; tutors cannot take anything from the testament of those who are under their guardianship, C. I. 769.

Finally, if on account of the state or condition of the person in society, which arises from the required supports with which the person is endowed, an act which otherwise is valid by natural law is valid in the forum of conscience, if by that religious or civil state or condition the natural state or condition is not taken away, nor does a positive law of this sort take away those things which by natural law pertain to man according to his natural state or condition, but only according to his state or condition in society. - And thus the rights of spouses, the rights of parents, the rights of children remain firm in the forum of conscience, if a true marriage was present, although civil marriage was lacking. For the defect of civil marriage does not take away the natural state or condition flowing from true marriage. On the contrary, when a void marriage has knowingly been contracted, neither husband, nor wife, nor dowry, nor legitimate children, nor legitimate succession is understood. C. 10, Qui fil. sint legit.; Epist. of Leo XIII, Il divisamento, 8 Feb. 1893, § Ora una legge; C. I. 116; C. G. 202; C. A. 160. A sale is valid in the forum of conscience, although it was made not to a citizen but to a foreigner, where this is simply prohibited. For a law of this sort does not take away those things which by natural law pertain to man, but those which pertain to a citizen. Foreigners are regularly prohibited only from those rights which come from the civil law alone of a nation. On the contrary, the testament of a religious is not valid, nor is the testament of an incapable person valid: for both laws take away those things which by the law of nature itself pertain to man, on account of his state or condition in society; namely, as to the former, in the Church; as to the latter, in civil society. - Lugo, de Iust. et Iur., d. 24, s. 4; Troplong, della Prescrizione, c. 1, n. 35.

Finally, if an act is invalidated on account of defect of form, the laws are then more properly held as invalidating, insofar as they are distinguished from inhabilitating laws. But form is either intrinsic to the act itself and inseparable from the act, or extrinsic to the act. The former is as it were the species of the act, and is properly called form; and ordinarily it is situated in this, that the act be done before some public person and witnesses, or be recorded in public instruments, juridically making faith. The latter is called the solemnity or solemnities of the act, and when these have been omitted, acts are properly called void; but undone if the form has been omitted, since form gives being to the thing; but often these words are used promiscuously, and an act is also said to be void and undone from defect of the capacity of the person. Undone, namely from the effect of law. And so in marriage the presence of the pastor and witnesses constitutes the form of marriage; in alienations of ecclesiastical goods, of wives, and of minors, the Apostolic approval required in the former, and the consent of the husband in the latter, and the decree of the judge required in these, pertain to the solemnities of the act.

The form and solemnities of an act are introduced to remove frauds. Wherefore laws of this sort rest upon a presumption of fraud. If they are founded upon a presumption of fact, and fraud is truly absent, the act is valid. But if they are founded upon a presumption of danger, although fraud is absent, nevertheless the act is void or liable to invalidation. It is not always easy to define whether a law is founded on a presumption of fraud, or on the danger of fraud. And thus it is disputed among doctors whether testaments and legacies not made according to the form of law are valid for the forum of conscience. L. 1. 3. n. 711, 890, 918, 927.

There are those who distinguish between invalidation of acts in the internal forum, and in the external forum only, whether as regards civil laws or as regards canonical laws. But the value of acts, as to itself, exists both in the internal forum and in the external forum. Moreover, in itself the contradiction is apparent which would then exist between the internal and external forum. And it is also apparent that then the law would not obtain its end, and would bring with it many and grave inconveniences. If, e.g., an alienation of ecclesiastical goods made without Apostolic approval is void only in the external forum, and not also in the forum of conscience, then the buyer or donee would by right retain those goods as his own, without being held to restore them, with evident harm to the Church. If an informal holographic testament, without the signature of the testator, were invalid only in the external forum, the heir inscribed there could now legitimately and secretly steal away for himself the goods possessed by the legitimate heir, even after the sentence of the judge. This is altogether absurd, and contrary to reason and common sense. Wirceburg., c. 4, a. 5, § 3.

Does he sin who makes a void act? R. Affirmatively, if the act is evil, as, e.g., to enter marriage with a blood relative; or if the act is harmful, whether justice, or charity, or the commonwealth, or religion is injured; e.g., if a notary prepares a public instrument without juridical form; if a testator freely makes a testament, the legal prescriptions not having been observed, whence he foresees that quarrels and scandals will arise; if a judge does not observe the legitimate process of judgments; if the form and solemnities of canon law are not observed in elections to ecclesiastical offices, in the conferral of benefices, etc. R. Likewise affirmatively, if the act is at the same time invalidated by law and also prohibited in the forum of conscience, as in marriages, not to observe the form prescribed by the Church; not to observe the due form in religious profession; to donate to an adulterine son.

R. Negatively, if the act itself is neither evil in itself nor harmful to another; for then it is only a fruitless act, e.g., if someone writes his own testament with the signature omitted, or not yet having attained the age prescribed by law. Harmful to another, not to himself; e.g., if spouses alienate dotal goods which are prohibited from being alienated, or a wife alienates paraphernal goods without her husband, and the buyer is ignorant that the goods are dotal, or that the woman has a husband.

But although the law does not oblige in conscience to omit the act, if in such a case it is merely invalidating and not at the same time prohibiting, nevertheless it obliges one to stand by all those things which intrinsically arise from the invalidation. For obedience must be given to authority legitimately commanding. But every legislator can make invalidating laws, because this is required for the common good; otherwise frauds and dangers of human society could not sufficiently be warded off.

Do ignorance, fear, and grave inconvenience excuse from invalidation? - R. To the first: Negatively, because subjective ignorance, whether of fact or of law, does not supply the objective defect of the act; and thus there is no marriage, when there stands, e.g., the diriment impediment of consanguinity, whether it is contracted in good faith or in bad faith. - But if the invalidating law is penal, then, if ignorance excuses from guilt, it also excuses from the penalty of invalidation. But if guilt is admitted, yet the penalty of invalidation is unknown, then more probably this is not incurred, because invalidation is an extraordinary and exorbitant penalty, from which ignorance excuses. Schmalz., l. 5, t. 37, n. 105; Sanch., de Matr., l. 9, d. 32, n. 17. More commonly, however, they affirm that it is incurred, because since such ignorance does not excuse from sin against the law, neither consequently does it excuse from the penalty, although this is unknown. Suarez, l. 5, c. 22; Ithur., Cas. 53, n. 24. Nor indeed does ignorance excuse in any way if the invalidation was established principally to preclude evils which otherwise would flow into the commonwealth, but the penalty only accessorily, for coercing the person. And indeed the proper reason of an invalidating law is common utility.

R. To the second and third: There are not lacking those who affirm it, because positive law ought to yield to the natural law of charity, and because in the case there is a certain legitimate epikeia. But it seems one must answer with the common opinion: Negatively; because grave fear, and even gravest inconvenience, neither render the person capable, nor restore to acts the force taken away by law. But since laws of this sort primarily and directly tend to preserving the public good, no place is given to epikeia on account of merely private harm. And thus a marriage between blood relatives and relatives by affinity will be void, even to avoid death, even in the article of death. Private harm, I say; for if a common harm is present, since then the law would become harmful to society, invalidation ceases. L. 191; l. 3, n. 112; l. 6, n. 1029; de Privil., n. 57; Diana, t. 2, tr. 6, r. 62, 73; Sanch., de Matr., l. 3, d. 17, n. 3; Ithur., Cas. 53, n. 18; M. E., vol. 20, p. 177, 474.

Note: As there are invalidating laws, so there are laws constitutive of right, which others reduce to invalidating laws. Such laws are those which constitute and confer some right. And thus religious profession and adoption obtain their force: the former from canonical law, from the Church accepting religious profession; the latter from civil law. Wherefore such laws are valid in both forums, the external and the internal. For if someone truly has such a right in the forum of conscience, he has it only from law, whether canonical or civil. Sometimes, moreover, laws of this sort immediately furnish right by themselves, as laws granting to the father usufruct in the goods of children under paternal power, granting to children under paternal power the legitimate portion in the goods of the father; but sometimes they furnish right only through the mediation of the office of a judge, as laws granting restitution in full to minors, to those who have suffered fear, etc.

There are besides laws denying action in the external forum; if these regard some natural right, they do not avail in the forum of conscience. For laws of this sort do not furnish an action, not because they take away natural right, but only so that there may be some end of lawsuits, lest lawsuits be multiplied. But if they regard a right which flows from the law itself, whether canonical or civil, then, if someone has not pursued his right within the prefixed time, they take away the right itself, and consequently, on the opposite side, the obligation of another. Wherefore they avail for this latter also in the internal forum, unless perhaps he has by injury impeded another from pursuing his right.

What is the nature of penalty and of penal law? R. To the first: Penalty consists in the subtraction of some good, whether spiritual or temporal. Spiritual especially, as regards canonical penalties, as is seen in excommunication; temporal as regards civil penalties. "Since sin is a disordered act, it is manifest that whoever sins acts against some order; and therefore it follows that he is cast down by that order itself (and by the Prince of the order), and this casting down is penalty." S. Th. 1. 2. q. 87, a. 1. "Through penalty the equality of justice is repaired, insofar as he who in sinning has followed his own will too much suffers something against his own will." S. Th. 2. 2. q. 108, a. 4. The equality of justice is also repaired insofar as he who has pursued illicit goods by his own will is deprived of certain goods against his own will.

Now, "vindication is licit insofar as it tends to the restraining of evils. But some who do not have affection for virtue are restrained from sinning through this, that they fear losing certain things which they love more than those which they obtain by sinning; otherwise fear would not curb sin. And therefore vindication for sins is to be taken through the subtraction of all things which man chiefly loves. But these are the things which man chiefly loves: life, bodily safety, one's own liberty, and exterior goods, such as riches, fatherland, glory. And therefore... there are eight kinds of penalties... namely death, by which life is taken away; lashes and retaliation, so that, for example, he loses an eye for an eye, by which one loses bodily safety; servitude and chains, by which he loses liberty; exile, by which he loses fatherland; loss, by which he loses riches; ignominy, by which he loses glory." S. Th. 2. 2. q. 108, a. 3; q. 65, a. 3.

One penalty is vindicative and is owed to sin; another is preservative from future sin, which is called medicinal; another is promotive of some good, and according to this someone is sometimes punished without guilt, but not without cause, as, e.g., that someone incurs irregularity on account of a judgment of blood. S. Th. 2. 2. q. 103, a. 4. "The penalties of the present life are more medicinal than retributive. For retribution is reserved to the divine judgment, which is according to truth against those who sin. And therefore according to the judgment of the present life, the penalty of death is not inflicted for every mortal sin, but only for those which bring irreparable harm, or also for those which have some horrible deformity; and therefore for theft, which does not bring irreparable harm, the penalty of death is not inflicted according to present judgment, except where theft is aggravated by some grave circumstance, as is clear concerning sacrilege, which is theft of a sacred thing, and concerning peculation, which is theft of a common thing, and concerning kidnapping, which is theft of a man, for which one is punished by death, as is clear from Exod. 21." S. Th. 2. 2. q. 66, a. 6, ad 2. "If some man is dangerous to the community and corruptive of it on account of some sin, he is laudably and healthfully killed, so that the common good may be preserved." S. Th. 2. 2. q. 64, a. 2, c. "Human justice kills those who are harmful to others; but those who sin without gravely harming others, it reserves for penance." S. Th. l. c. ad 2; q. 65, a. 1, c. No one can punish another unless he is subject to his jurisdiction. S. Th. 2. 2. q. 65, a. 2, c. But public vengeance to be exercised by the civil magistrate is handed down in the Sacred Scriptures themselves, Rom. 13:4. "A greater power ought to have greater coercion. But just as a city is a perfect community, so the Prince of the city has perfect power of coercing; and therefore he can inflict irreparable penalties, namely of killing or mutilation." S. Th. 2. 2. q. 65, a. 2, ad 2; q. 10, a. 8, 9; q. 11, a. 3, 4.

R. To the second: Law can oblige to doing or omitting some act or action, and then it is called a moral law, preceptive or prohibitive. But law can oblige to undergoing penalty alone, and then it is called penal law; namely if the law still obliges to doing or omitting that thing, or otherwise to undergoing the penalty. For it suffices for the essence of law that it impose some obligation in conscience, nor is it necessary that the obligation regard determinately an act or its omission. Besides, law has force only from the will of the legislator. But the legislator can oblige to penalty alone, if that suffices for procuring the common good. Wherefore St. Thomas rightly teaches, 2. 2. q. 186, a. 9, "that not all things which are contained in law are handed down by way of precept; but some are proposed by way of a certain ordinance, or statute, obliging to a certain penalty." - Suarez, l. 5, c. 4, n. 2-6.

Therefore a penal law is a law which does not oblige in conscience to positing or omitting an act under guilt, but only under temporal penalty, i.e., to accepting the penalty as just. Wherefore, properly speaking, a merely penal law cannot be given in this sense, insofar as it in no way obliges in conscience; nevertheless a merely penal law can be given in this other sense, insofar, namely, as it obliges in conscience to one or the other: either to fulfilling the law, or to undergoing the penalty; as is the law of paying a fine if someone defrauds the customs. But cf. 232. - "Sanctions which in no way oblige in conscience, neither to an act or its omission, nor to penalty, are not properly laws, but simple constitutions and ordinances... To this are reduced the statutes of various Orders, Congregations, Academies, etc." Struggl, q. 2, n. 32. Therefore laws of this sort are not called laws simply, but directive, counseling, persuading laws. But it is entirely outside every question that there can be at the same time a moral law, preceptive or prohibitive of an act, and at the same time penal, and then the law is called mixed; as is the law of repairing damage inflicted by civil fault alone. Penalty regularly does not oblige before the sentence of a judge. Cf. 230; 1 Cor. 4:21; 2 Cor. 10:6; Suarez, l. 5, c. 3, 4; S. Th. 2. 2. q. 108, a. 4; q. 186, a. 9, ad 1; E. M.

227 bis. Note: The rack is a kind of torture, namely a wooden machine joined together in the manner of a horse, cavalletto, on which formerly those concerning whom there was inquiry of some crime were stretched and tortured, so that full proof might be made from their confession. Life imprisonment, according to the Italian Penal Code 31, 33, is the greatest penalty, bringing perpetual interdiction from public offices, legal interdiction, deprivation of paternal power, marital authority, and the faculty of making a testament. Reclusion follows life imprisonment. The penalty of reclusion exceeding five years brings, according to the Italian Penal Code 31, 33, perpetual interdiction from public offices, legal interdiction during the penalty, and there can be added deprivation of paternal power and marital authority during the penalty.

How are merely penal laws distinguished? - They are distinguished: 1. From the matter, words, and circumstances of the law. 2. From the common judgment of doctors. 3. From the persuasion and practice especially of the timorous. From the matter; hence, speaking in itself, civil laws can be held as penal if, with attention to their matter, the end of the law is sufficiently obtained by only the fear of the penalty having been struck in, as, e.g., civil laws concerning paying taxes with regard to goods imported or exported; for if the established taxes are not paid, a fine would be owed. But civil laws must be held as preceptive if, with attention to their matter, the end of the law is not sufficiently obtained by fear of penalty alone, unless also by fear of guilt. Such laws are those which directly and proximately contribute to the common good, peace, and order of civil society, as are laws, e.g., of contracts; of public offices, administrators, magistrates, etc.; of judgments, proofs, unless as regards these the right is certain and evident; since then the right is not lacking, but the proof of right, provided that the proof does not touch the very form of the act. C. I. 779, 1314; C. G. 973, etc. Likewise laws are altogether obliging in conscience: laws explaining natural right and definitive of right, as are laws assessing the prices of things and the wages of works; granting to the father usufruct in the goods of children under paternal power, but to children under paternal power the legitimate portion in paternal goods; half the treasure to the finder, half to the owner of the land; restitution in full to minors, married women, those who have suffered fear, regulars; common ownership of a wall to a neighbor; action for damage given by civil fault alone, etc. Kenrick, tr. 6, c. 3, n. 2 ff.

From the words; hence Suarez thinks, l. 5, c. 4, n. 9, that if by the words of a penal law the precept is not sufficiently declared, a presumption must be made in favor of a purely penal law, "unless from the circumstances, or from the matter or penalty of the law, a virtual precept, or sufficient intention of one commanding, is gathered." Or from the penalty, e.g., of excommunication, or even a gravest corporal penalty, of death, mutilation, etc. "For the law must be considered prudent and just; but it would be intolerable if, on account of a thing which lacks guilt, it imposed the penalty of death or mutilation." But others deduce from a graver penalty that the Prince does not wish to oblige in conscience, because it would not be equitable that, besides a most grave temporal penalty, which would suffice to urge observance of the law, he should also wish to hand someone over to eternal penalty besides that most grave temporal penalty. But this, as is clear, would hold also for the laws of the Church under penalty of excommunication, suspension, interdict, deprivation of benefices, etc.; and yet all admit that all laws of the Church oblige in conscience. - Moreover, a law is held as purely penal if it is not borne by way of precept and prohibition, but merely assertively, e.g., he who has carried grain out of the kingdom will pay one hundred lire; or if it is borne disjunctively, e.g., let no one carry grain out of the kingdom, or, if he has carried it out, he will pay one hundred lire. - But if the law is borne simply by way of precept and prohibition, either it imposes no penalty, and it is a moral law, preceptive or prohibitive, obliging, speaking in itself, in conscience to guilt; or it has a penalty joined to it, e.g., canons are prohibited from being absent from choir under penalty of loss of the distributions which are made daily among those present, and the law is mixed, obliging, again speaking in itself, at the same time to guilt and penalty. Speaking in itself, unless, namely, the legislator himself has expressly admonished otherwise, as may be seen in many Rules and Constitutions of religious Orders and Congregations, or something else must be judged from other heads. L. 145-147; S. Th. 2. 2. q. 186, a. 9, ad 1. Yet it is not necessary for the obligation of a law that this be explicitly asserted by the legislator. For it suffices that it be understood implicitly from the law itself as enacted.

From the circumstances; e.g., if no corruption of morals would follow from transgression of the law, no danger of public order, etc., and the superior himself entrusted the effective execution of the law to his ministers, or imposed a great penalty. For that alone would be sufficient for observance of the law; and it would justly be presumed that the Prince does not wish to oblige to guilt and penalty at the same time. But not at all if there were question of a thing evil by its nature, or publicly pernicious; in such matters penal laws are never to be sought. Suarez, l. c., n. 12; L. l. 3, n. 616.

From the common opinion of doctors; and thus as penal are held the laws which prohibit dice and games to laymen. L. l. 3, n. 885. On the contrary, the common opinion of doctors is that merely penal laws are not given in the Church, since the Church principally regards the good of souls. From custom; "hence the laws of towns prohibiting under penalty the cutting of wood or grass, fishing, hunting, do not oblige under guilt; for custom so holds." L. 145. The same seems to be said of the grazing of cattle in fields or woods of the community, and of carrying weapons for hunting; but by no means of carrying treacherous weapons. St. Pius V, C. Cum vices, 12 Feb. 1572; C. I. Poen. 460 ff. Civil laws forbidding opium, and other similar laws, for protecting good morals, are in themselves moral laws. - E. M. "Reuter observes," he says, de Leg., n. 217, "Suarez, l. 7, c. 19, n. 12; Laym., l. 1, tr. 4, c. 24, n. 12, that some laws have passed from not purely penal into purely penal, because otherwise they were not observed, as perhaps are civil laws imposing exactions, prohibiting hunting, cutting wood, etc."

Do ignorance, fear, and age excuse from penalty? R. To the first: Affirmatively for the internal forum, if ignorance excuses from guilt against the law, whether it is ignorance of law or ignorance of fact; for penalty is a certain natural consequence of guilt. - R. Negatively for the same forum, if ignorance does not excuse from guilt against the law, and is concerned with the penalty alone, understand an ordinary penalty; but not an extraordinary and exorbitant one. The reason of the distinction is that an ordinary penalty is always foreseen in some way from the nature of the crime itself, since natural light itself dictates that evil is to be punished according to its nature. But an extraordinary penalty cannot be foreseen even confusedly. R. Likewise negatively for the external forum. For knowledge of the law is presumed, unless, however, ignorance of the law seems probable, i.e., likely. For presumption yields to truth. L. 169; l. 6, n. 705, 1074; l. 7, n. 351.

R. To the second: Unjust and grave fear, which excuses from human law, whose obligation regularly is none with grave inconvenience, consequently excuses from the penalty annexed to human law. Hence, although perhaps it does not excuse from grave sin, because that which was prohibited was forbidden also by natural law, nevertheless it still excuses from the penalty, unless the positive law itself does not cease, as for instance if something is extorted to public harm. C. 5, De his quae vi.

To the third: From the indulgence of canon law, age excuses those not yet pubescent, C. 1, 2 de Del. puer.; C. 1, 60 de Sent. exc. By civil law minors are punished more mildly. C. I. Poen. 44, 53 ff.; C. B. 828. - Cf. here 195; Suarez, de Cens., d. 5, s. 1, n. 19; Castropalao, tr. 3, d. 1, p. 24, § 2, n. 8; Scavini, l. 1, n. 822, ed. 12, Milan 1874; Bouquillon, de lege, n. 159.

Does a penal law oblige one to undergo the penalty before the sentence of a judge? - The penalty which is contained in law is one thing active, which cannot be given remission without some positive action of the delinquent, as would be, e.g., payment of money; another is passive, which requires the action of another for its execution; another is privative, which consists in the mere privation of some acquired right, e.g., office, benefice, jurisdiction, suffrage, etc.; and it is conditional if it deprives of some right under a given condition; another is negative, which denies to the guilty person some good to be acquired; another finally is inhabilitating, which renders one incapable or unable of some right, namely of doing or contracting, acquiring, giving something, etc. - Likewise, one penalty is latae sententiae, another ferendae sententiae; the first is incurred by the commission of the crime alone, the second by the sentence of a judge. But this sentence to be rendered, or condemnatory sentence, is that by which the accused is punished with a certain penalty; or declaratory, by which the judge declares that someone has fallen into that crime on account of which the penalty established by law is incurred by the fact itself.

In order that a penalty can be called latae sententiae, it is necessary that the legislator has clearly provided that the accused, once the delict has been committed, is immediately held by that penalty. If the penalty is ferendae sententiae, the law does not oblige to undergoing the penalty before that sentence; for then the law does not inflict the penalty by itself, but only decrees that it is to be inflicted by the judge. But if the penalty is latae sententiae, then a distinction must be made. An active or passive penalty, etc., e.g., of paying or suffering something, is not to be undergone before the sentence of a judge. The reason is "because that human law would be too arduous and unobservable: that the guilty person himself should execute the penalty upon himself." L. 149, 148. Except unless the law so evidently commands otherwise that it cannot be interpreted otherwise, for instance, a thing accepted simoniacally must be restored, cf. 523. - The same, for the same reason, must be said of a penalty at once privative and active. "And thus, therefore, one must speak of laws depriving of benefices already obtained, by reason of simony or alienation of the goods of the benefice, etc., where a declaration of the judge is always required." L. l. c.; unless something else is expressly provided in the law, as seems to be established in Trent, s. 14, c. 18 de R., against synodal examiners receiving something on occasion of the examination, since it is said, "from which [i.e., simony] they cannot be absolved unless the benefices have been dismissed." L. l. 3, n. 112, 397. But not even this urgent wording of the law excludes a declaration of the crime. Cf. 521.

If the penalty is simply privative, before the sentence of a judge it will ordinarily have to be undergone, as is clear from the usage and custom received everywhere concerning censures and similar penalties. Hence, without any other sentence, incestuous spouses are deprived of the right of petitioning. C. Si quis de Eo qui cognov. And deservedly; for since incest is almost always hidden, the penalty would be rendered useless if it had to be proved, and a sentence were required. Ordinarily, for exception is made: if the guilty person cannot execute the penalty without infamy, since this would be too hard; if somewhere a particular custom holds otherwise. L. 148.

Negative penalties and "inhabilitating penalties oblige before the sentence of a judge, as is the penalty imposed by Trent on non-residents of not gaining the fruits. Likewise when privative penalties are conditional, e.g., that one having a benefice with care of souls, if he is not ordained priest within a year, is by that very fact deprived of the benefice, as from C. Licet, de Elect., in 6. Thus also a beneficed cleric not wearing the habit is by that very fact deprived of the privilege of forum." L. 149. The first reason is that no one can acquire that to which he has no right. The second reason is that since the law does not bestow right except under such a condition, when it is lacking, every right must also be lacking. Yet, as for privative penalties, so also for inhabilitating ones, at least a declaratory sentence of the crime is required "in the case in which the guilty person cannot execute the penalty without his own infamy," L. l. 6, n. 705, as, for instance, one which deprives of active or passive voice. No one is held to betray himself. - L. l. 7, n. 54; l. 3, n. 397, 442, 402; l. 5, n. 280; Struggl, q. 2, n. 38 ff.; Suarez, de Legib., l. 5, c. 10; Laymann, l. 1, tr. 4, c. 15; Wirceburg., c. 4, a. 5, § 2; Troplong, della Prescrizione, c. 1, n. 35, 38, 42.

Must a conventional penalty in contracts be paid before sentence? - A penalty which is owed for that which is of interest is owed before every sentence of a judge. But concerning that which is owed on account of delay, there is dispute. "The first opinion affirms it, because each person is held to observe the pact before sentence.... The second opinion, which the Salmanticenses call equally probable, denies it, because one must judge that the contracting parties do not wish to impose a penalty upon themselves otherwise than according to the disposition of law concerning laws of penalties, which are not contracted except after sentence. Certainly the guilty person is held after sentence to the penalty. But it must be noted that he is not held to pay the money unless it is sought by the party. And if the penalty is too harsh, beyond the sentence there is required a precept of the judge, and the execution of the ministers." L. 150; C. B. 343.

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.

1. Eligius and Elodia, consanguineous in the third degree, ignorant of the law of the Church, contract marriage in good faith. Moreover, even if they should know the impediment, they cannot seek a dispensation because of the most dreadful persecution already stirred up against the Church for a long time; whence no recourse to the parish priest, to the bishop, or to the Roman Pontiff can be had. Wherefore they are also compelled to contract marriage clandestinely, notwithstanding the promulgation, in the place, of the Tridentine Decree concerning contracting marriage before the parish priest and witnesses.

Q. 1. What is the force and obligation of an invalidating law? 2. What as to the case?

R. To the first, cf. I. M. 223 seqq. To the second: the marriage of Eligius and Elodia is null. For 1. ignorance of a diriment impediment cannot make valid an act declared null by the legislator by an invalidating law. For an invalidating law directly and in itself regards the common good; and therefore, just as it does not cease in the case of a particular inconvenience and necessity of persons, although that be most grave and this be most grave, so also it does not cease in the case of ignorance and good faith. 2. But although, on account of that most grave and long persecution, by reason indeed of the common good itself, the impediment of clandestinity ceases; for the impossibility of recurring to the parish priest is common to all; nevertheless the other impediment of consanguinity does not cease, because here the inconvenience is altogether particular for some, not common to all. And indeed spouses of this sort can contract marriage with other persons. - G. 122, 124.

2. Among the evangelical workers of the Chinese regions a question arises concerning the cultivation, trade, and use of opium. Some contend that trade in opium is not illicit in itself, because the civil law, established by an unbelieving prince, and prohibiting it with most grave penalties, is penal. And although that law were prohibitive, and obliging in conscience, nevertheless it would not follow from this that its transgression is always a grave sin, since human laws, ordinarily speaking, do not oblige with grave inconvenience. Others, on the contrary, contend that that trade is altogether illicit; for in the Acta S. Sedis the use of opium is declared abuse; and therefore that trade is trade in a thing altogether illicit. Moreover the civil law prohibiting the trade in opium is moral and prohibitive, since it looks to protecting honorable morals.

Q. 1. What is the nature of a penal law, and from what is it recognized? 2. What as to the case?

R. To the first, cf. I. M. 227 seqq.; Enchir. Mor. N. 84. To the second: the response is clear from the following Instruction of the S. O., 29 Dec. 1891, to which the aforesaid question concerning opium gave occasion.

"1. From the responses given up to this point, if they are rightly understood, it is plainly clear that the Holy See has never disapproved that cultivation, trade, and use of opium which would serve medicine.

"2. It is also clear that in the decrees of the Sacred Congregations, both those which were issued concerning use to be permitted or tolerated, and those concerning abuse to be reproved, there is not an absolute, but a relative force. Namely, they regard the things which were proposed; therefore they are not to be mixed together indiscriminately with each other, but must be referred to the individual cases with their peculiar circumstances. If this is done, it will easily be found that they agree with themselves continually. Nor will any difficulty be able to arise from the fact that in the Acta S. Sedis sometimes the use of opium, sometimes abuse, is named; for the use which is disapproved is to be held as a true abuse.

"3. Since therefore the Sacred Congregation for propagating the Christian name had already opened its mind in the year 1830 concerning the abuse of which there is question, 'to remove doubts and perplexities of mind which can arise in particular cases,' it judged that an instruction should be drawn up, in which in a matter of such great moment it wished great account to be had both of the civil law forbidding the trade in opium, and of the most grave evils which from the abuse of opium are accustomed to emanate in those regions."

It decreed that this instruction be transmitted in the year 1848 to the Vicars Apostolic of Yunnan and Malacca, adding that, the general harm considered, every care had to be applied to extirpating the use of opium. Here the word use, as anyone easily understands, must properly be said to signify abuse. For there was not question of that use for which opium is prepared by nature, but of that which obtains among the Chinese, and which is situated in this, that they chew opium with the teeth, or drink it mixed with alcoholic potions, or draw it in by smoke.

"4. Therefore this Supreme Congregation in the year 1852 indeed declared generally illicit the trade and use of opium, but according as it was being explained, and ordered the Vicars Apostolic to apply every care to uprooting that use and trade. Nor did it judge that it should depart from this decree in the year 1858, although it had been reported by the Vicars Apostolic of Xensi and Hunnan that the civil law forbidding opium no longer existed.

"5. Nor is it to be thought to have departed from this prohibition, although to some it seemed otherwise, in the year 1878. For on account of peculiar and altogether extraordinary circumstances which were being explained, and on account of the suspension for a decade of the civil law forbidding the cultivation of opium in those places which had been devastated by war, and whose inhabitants had been brought to extreme poverty, the Supreme Congregation established only this, that the sacraments should not be denied to those Christian faithful who, in the Province of Keuy-Thceou, during that ten years' space permitted by the civil law, had cultivated opium solely for relieving poverty. And when it had been asked: whether those who, from inveterate habit, cannot bid farewell to opium except with danger of death, or grave detriment, can be admitted (to the sacraments), and whether opium can be taken by way of medicine, because danger from the habit is imminent, the response was: Affirmatively, yet with diligence and cautions having been placed, so that the abuse of opium, and the evil effects arising from abuse of this sort, may be avoided. By this response, which regards an exception, everyone sees that the general decrees by which the abuse of opium is reproved are by no means weakened; and this was clearly declared Wednesday, 4 July 1883.

"6. From all these things it follows: 1. that the cultivation of opium is indeed not illicit in itself, but in the Chinese regions, on account of abuses to which from long experience it is certainly established to be liable, it becomes illicit, and therefore generally must be forbidden to the Christian faithful; 2. nor otherwise must judgment be made concerning trade, which, although in itself it is not evil, nevertheless becomes evil on account of the grave abuses flowing from it for the most part and almost universally, and on account of the laws forbidding it; and therefore it is to be prohibited not only to those who exercise it directly, but also to those who favor it, namely who knowingly lend money at interest to merchants of opium, or lease fields for the cultivation of opium; 3. that the use of opium which is said to obtain in China has been held by the Church as a detestable abuse and declared illicit; 4. that use of the same can be permitted to those who have accustomed themselves to it, and who cannot altogether abstain from it without danger of death or grave detriment; likewise that opium can be taken by way of medicine, yet by this law, that the mode and quantity be observed which by no means exceed the medicinal measure, and with due diligence and cautions applied, so that abuse of the same and the evil effects flowing from it may be prevented." Acta S. Sed., v. 24, p. 506 seqq.

3. Osius, a beneficed cleric, at the beginning of navigation threw his breviary into the sea. Hence it happened that in the long voyage he could not recite the breviary. But he immediately repented of the deed. Must he restore the fruits?

R. He who has offended is not exempted from penalty from the fact that he has repented of the delict, whether after the effect has already followed, or even before the effect has followed, because penalties are for the example of others and for protecting the common good. Hence Osius, although he immediately did penance for his sin, is held to restitution of the fruits. Nevertheless, because in the proposed case the delict has a successive tract, D'Annibale, 3rd ed., p. 1, n. 312, note 76, judges that Osius is not to be disturbed. But this opinion is difficult, because Osius omits the office, and that omission is voluntary and culpable in the cause, and therefore in that successive tract it is always culpable in the cause, and consequently always liable to penalty. Wherefore it does not appear how he can make the fruits his own.

4. Elpidius vowed to fast if hereafter he should play at dice. But behold, from a contracted habit, wholly forgetful of the vow, he plays at dice. Is he held to the fast?

R. The vow, in the case, is a penal vow, and is a certain quasi-conventional penalty. Moreover, whether the nature of penalty be considered, or the intention of the one vowing be considered, it is clear that the penalty cannot be inflicted if no fault was present, and that Elpidius certainly did not wish to inflict that penalty on himself otherwise than if, namely, knowingly and prudently, he gave his attention to the game. Therefore Elpidius is not held to the fast.

"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.

"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.

332. Just as ecclesiastical society can make laws for the spiritual good of the faithful, so likewise civil authority can establish laws for directly promoting the temporal happiness of citizens, and mediately their spiritual good; for even temporal happiness itself is reduced to a higher end, namely the practice of virtues, which ultimately conducts to eternal beatitude. Therefore civil law itself, provided that it is an ordination of reason, is truly a norm of human acts, since it ultimately tends to perfecting citizens and leading them to their end.

¹ St. Thomas, Ia IIae, q. 95-96; Suarez, lib. III, V, VI; Billuart, diss. III-IV; Muller, § 50-60; Bouquillon, n. 214-252; Van Gestel, De Justitia et lege civili, Groningae, 1896; Bautain, op. cit., ch. 11-12, 16-17; Waffelaert, Etude de Théol. Morale sur l'obligation en conscience des lois civiles, Tournai, 1884.

Here, from what was said in Philosophy, we presuppose that man is by nature a social being, and therefore that civil society is from nature, or, in other words, from God the author of nature, and does not arise from a mere social pact. But in every society there ought to be some authority which presides over the commonwealth; and this authority, in whatever way it is designated, whether by the vote of the nobles or of the people, or by received right of birth, proceeds from God, according to that saying of the Apostle:² "For there is no power except from God; but those things which are, are ordained by God... For he is God's minister to you for good." In fact, as Leo XIII argues, society can neither exist nor be understood in which there is not some superior who moderates wills and impels them rightly to the common good; therefore God willed that in civil society there be those who command the multitude. By force of this authority, those who preside over society, whether Princes or legislative Assemblies, can, as ministers of God, establish laws which oblige in conscience. Wherefore we shall speak: 1. concerning the conditions required for civil law; 2. concerning its moral obligation.

² Rom., XIII, 1, 4. Cf. Leo XIII, Encyc. Diuturnum, 29 Jun. 1881, and Immortale Dei, 1 Nov. 1885.

335. 1. Civil law must be promulgated and made public right, but the mode of doing each is diverse among various nations. In many modern States, promulgation is made by an act of the supreme authority, which holds the law as ratified, and commands that it be published, generally in the official journal, and committed to execution. For the most part it does not begin to oblige until one or another day, or several days, after promulgation.¹

¹ Thus, in France, from the decree of 5 Nov. 1870 still in force, "a new law is executable in each arrondissement one full day after the number of the Journal officiel which contains it has arrived at the chief town of that arrondissement" (Planiol, Tr. élém. de Droit Civil, Paris, 1901, t. I, n. 170). - In Belgium: "Laws, after their promulgation, are inserted into the Moniteur, the French text and Flemish text facing one another. They are obligatory in the whole kingdom on the tenth day after their publication, unless the law has fixed another delay" (De Le Court, Codes Belges, Complément, p. 300). - In Italy: "The law does not become obligatory on the very day of its publication, but on the fifteenth day afterward (that is, the dies a quo excluded, and the dies ad quem included), unless something else has been provided in the law itself" (E. Gianturco, Istituzioni di Diritto civile, Firenze, 1901, p. 13). - As to the United States of America, general laws issued by Congress oblige at once once they have been promulgated, unless otherwise established in the law itself; thus apud A. Carlier, La République américaine, Paris, Guillaumin, 1890, t. 3, p. 257; cf. Bryce, The American Commonwealth, New York, 1896, t. I, ch. 16 and 40.

336. 2. For the force of civil law the acceptance of the people is not per se necessary; for, even under a democratic regime, legislative power can be exercised without recourse to the people: for once the delegation of authority has been legitimately made, the legislative Assembly or other superiors are restricted in the exercise of their power only by a superior authority. But, in certain regions,² provision has been made that certain laws of greater importance would not oblige except after the acceptance of the people: then indeed they must be referred to the people. And this often favors good government, provided that citizens have care for the public good, and freely give their votes: for thus laws are better accommodated to the customs of the people and are observed more willingly.³

² Thus in Switzerland, and in certain American States, concerning which see Bryce, op. cit., ch. 39.

³ Hence, even in the Middle Ages, many kings, especially Charlemagne, did not hesitate to seek the consent and acceptance of the people as to new laws, as G. Kurth reports, Les origines de la civilisation moderne, Paris, 1903, t. II, ch. 13, p. 225-229.

337. 1. Civil law in a general way can regulate all those things which regard the temporal good of citizens, and consequently: (a) goods of fortune, namely their legitimate acquisition and transmission, whatever favors agriculture, industry, commerce, or the various human arts; (b) goods of the body, by taking care that by apt means the number of citizens be preserved and increased, that nothing be done contrary to public health, that orphanages, hospitals, and other charitable institutes be erected for assisting those who are in necessity; (c) goods of the intellect, by providing for the right instruction of youth in letters, sciences, and human arts, which contribute greatly to the good of private persons and of society; (d) goods of the will, by promoting moral virtues, restraining and punishing vices; (e) goods properly social, namely the very constitution of society, the form of government, the administration of public affairs, relations between the various orders of citizens, and also the defense of the rights of the whole community against the unjust aggression of foreign nations.

338. 2. In matters which are merely temporal, the State can establish laws independently from the Church, but not independently from God.

Hence, (a) it can sanction the natural law by positive prescriptions, for example by compelling parents to nourish minor children, and children to provide sustenance to parents; (b) it can more specifically determine prescriptions of the natural law which are too vague and general, for example by establishing conditions for the validity of contracts, for the succession of children in the goods of parents; (c) it can complete the natural law by additions, by prescribing certain things which of themselves are indifferent, but, by reason of circumstances, can promote the common good, for example in relation to roads or streets, to fishing or hunting, etc. - But in no way can it enact statutes against the natural law; for since law is an ordination of reason, human law has so much of the power of law insofar as it is consonant with right reason: "but if in something it disagrees from the natural law, it will no longer be law, but a corruption of law."¹

¹ St. Thomas, Ia IIae, q. 95, a. 2.

339. 3. But in those things which are mixed, that is, which are referred to a spiritual and temporal end at the same time, the State cannot make laws while prescinding from ecclesiastical society, but concerning these it can make agreement with the Church, as often happens in Concordats. For since each power can prescribe something concerning these matters, conflict will easily arise unless the matter is defined equitably and peacefully by common counsel. Thus, for example, in scholastic legislation, provision must be made for sciences and arts in such a way that nothing is attempted against faith or good morals; in the matrimonial contract, concerning civil effects, concerning the mutual rights and duties of spouses, concerning the legitimacy of children, things must be established in such a way that no detriment is brought to the unity and sanctity of the matrimonial bond.¹

¹ We discuss these things more explicitly in the Treatise on the Various Obligations of States, n. 6-11, and in the dogmatic part of the Treatise on Marriage, n. 32-39.

340. 4. In merely spiritual matters, the State can establish nothing by its own authority; but indirectly and ministerially it can, and, with the due conditions posited, must help the Church in defending the true religion, as we explained in the Treatise on the Church, n. 233-238.

— I. Author. The author of civil law is now almost everywhere not one person, but the consent of several, which not rarely is composed of the votes of Parliament, i.e., generally, of the more popular assembly (Camera), whose authority is accustomed to prevail, and of the more select college, or Senate; and of the sanction of the king or president of the republic.

Besides, under the name of a decree of the king or president (decret, arrete) there comes that secondary form of human law of which we spoke above, n. 264.

II. Promulgation. Civil laws have customarily been promulgated by insertion in some official Commentary (Raccolta ufficiale, Journal officiel, Moniteur); and they are accustomed to be vacant for a few days, unless immediate force is established.

III. Subject: What concerning clerics. As regards the subject of law, "from the common and certain opinion, clerics and other exempt ecclesiastical persons are altogether obliged to observe those civil laws which have been made for the public utility of the republic in a matter common to clerics and laymen, and which are not opposed to the sacred canons and to the clerical state and its dignity and offices" ¹. The source of the obligation is the civil law itself, from which the Supreme Pontiff alone is exempt by divine right; but the others are exempt by canonical law as regards the coercive part alone. And in itself, since the person is not made wholly sacred, but truly remains a citizen, nothing prevents clerics from being held by civil laws. Moreover the mind of the Church is that clerics obey just civil laws which are not repugnant to their state. (There are some who derive the obligation of clerics from divine-natural law or from canonical law. To the universal canonical legislator there is indeed not lacking power of obliging clerics for the common good; but such a law is not demonstrated to be present.)

As regards the coercive force itself, the Church indeed assigns to her clerics a privileged forum; and, insofar as circumstances permit this, she prudently protects immunity from the lay forum, in order that she may conciliate and preserve for the ecclesiastical hierarchy the greater authority which is useful to the republic itself. Yet because today privileges are accustomed to be more odious and, in a society where all things are founded on equality, in part appear less necessary, the Church herself, in concordats, sometimes renounces the privileged forum for civil causes, and even for criminal causes of clerics who are not bishops; the Secretariat of State declared in 1911, for Germany, Belgium, and Holland, that by a contrary usage of more than a century derogation could be made from that same forum ¹; the Holy See warns bishops that they never deny permission to cite clerics before the civil forum or to judge them; concerning that often violated immunity of forum it is silent, and it generally endeavors to obtain this, that without the leave of the Holy See a bishop not be dragged before a lay judge. Therefore it is necessary that by excellent honesty and simple care of obeying the laws, clerics avoid civil lawsuits, especially penal ones. When cited, they will ask their Ordinary what they should do; when consulted by magistrates who have to judge a cleric accused of a delict, they will advise that they secure permission for themselves; when not asked, they will generally not disturb good faith.

But clerics themselves will not sue other clerics, especially Superiors, before a lay judge, unless they have obtained the due faculty.

IV. Use in the ecclesiastical forum. The use of civil law in the canonical forum was formerly admitted generally, when a proper canonical disposition was lacking; and the civil law itself was supplied in like manner by canonical law. Civil law of this kind was said to be canonized (Cf. c. 1, De novi operis nuntiatione, V, 32). But today no general disposition of law can be alleged which would permit us, when canon law is silent, to apply civil law to canonical matter. Indeed such a disposition can scarcely be hoped for, since the perfection of canonical laws less demands civil supplements, and civil law no longer deigns to imitate canon law. Wherefore, with Wernz, I, n. 195, and R. P. Maroto, op. c. n. 384, we deny that the contrary opinion of D'Annibale, I, n. 201, can be admitted, to which nevertheless the Sacred Rota adhered in its argumentation, in the Bituricensian cause, Location, n. 22 ¹. And rather c. 20 stands in the way, which, when canonical law is lacking, by no means refers to civil law. But in certain matters the Code itself has commanded the application of the civil law in force in the region. Thus, for the time of urging obligations of contracts, c. 33, § 2; for the matrimonial impediment of adoption, cc. 1059, 1080; for prescription, c. 1508 (but with moderation, cf. the following canons); and for contracts in general, c. 1529.

V. Concerning the obligation of civil law we have already treated above, n. 253.

VI. Character and present-day tendency. Concerning the character and present-day tendency of civil laws these things are to be observed. For a long time, especially after the French upheaval, civil laws strove so to take account of the liberty of individuals, both in acting and in contracting, that they neglected and almost ignored social relations below the rule of public power. And because "individual liberty" is diminished through social bonds, they were therefore rather hostile to societies of persons (associazioni di persone). That "individualistic" regard was already being objected to Roman law itself. But the excessively absolute manner in which the free use of right was permitted to individuals, even to the stronger and more powerful, generated oppression of the lowly and various excesses which won favor for the opposite error of Socialism, which immediately tends to this, that common possession and administration of several things be substituted in the place of private possession and individual effort. But the social cares of laws which, before the war, prudently and cautiously were trying to adapt society to new circumstances, after the fortunes of war are now drawn headlong to inducing a new order, where, on account of alleged more general utilities, free use and free disposition of private goods and rights are contained within stricter limits, and at the same time collegial associations begin even imperiously to rule individual citizens of the same class.

How far public power can legitimately limit the rights of private persons is often difficultly and dangerously defined. Yet for that reason it is not lawful for us to ignore the matter and abstain from action. But labor must be applied, so that each best man, according to his strength, may try both to favor common progress and to preserve Society itself from ruinous errors.

¹ Wernz, I, n. 108.

¹ Cf. Periodica, VI, 190.

¹ A. A. S. IX, 549.

— Obligation of human law. By authority communicated through Divine Law, human law truly is the principal cause of moral obligation.

II. Because the common good itself requires acts of all virtues, law can make those acts necessary, so that, when the law is violated, one sins against those virtues.

III. The gravity of matter is to be estimated either from relation to the common good which is to be protected, or from relation to the order of natural law which is mediately violated. Therefore the object of the precept and the proportion of the means to that object must be considered.

Matter in itself very light can become grave from the end; wherefore the same thing will be light in civil society, grave in ecclesiastical society. The legislator can by a grave precept or prohibition avert the danger of a plurality of acts which singly would not greatly bear upon the common good. In doubt concerning matter, one must defer to the judgment of the legislator.

For his end, the ecclesiastical legislator is presumed to urge under grave obligation grave matter: which will he manifests both by words and by penalties, and approved authors also hand it down to us. Nevertheless various statutes or constitutions of associations and religious institutes are only penal laws.

The civil legislator does not lack the power of directly binding conscience. Yet, as many will have it, he is not thought today to have done this except insofar as it is necessary for the common good, although now minds incline more toward asserting obligation of conscience. Hence, the gravity of penal compensation can be an indication of a merely penal law. Nevertheless not rarely there will be added an obligation of natural law. And again the authority of doctors is to be held in very high account.

Yet violation of law from formal contempt of law or authority would always be grave. And the observance of law, such as is practiced by upright men, is to be inculcated upon all.

IV. Those things alone can be prescribed which conduce to the common good and pertain to social communication. Such are not internal acts; but truly such are hidden acts and acts mixed in various ways.

V. The application of the rule concerning "non-retroactivity" is to be understood thus:

1. The milder penalty is applied to the accused.

2. Acts remain valid if the required conditions were fulfilled when the act was posited, unless perhaps it can easily be repeated.

3. Effects produced before the new law always subsist; but the future efficacy of a valid act or of a juridic condition is to be estimated according to the new law.

4. The effects of agreements must be computed from the law under which they were made.

5. Finally a new procedural order is applied even to old causes, because it is judged better than the preceding.

Authority of the people. I. The people, as such, is not, in a constituted perfect society, the legislator. Therefore what they can do in regard to law must be derived from the prudently demonstrated will of the legislator. Now:

1. Through epikeia, a law can be held as suspended, until a response is obtained to difficulties legitimately proposed, v.g. by bishops to the Holy See. Say the same during appeal to a Superior.

2. Laws are confirmed by morals, insofar as general non-observance, unless the legislator expressly contradicts it, dispenses all from observing the law.

3. The mandate of the Ordinary concerning the observance of certain general laws which change diocesan usages can also prudently be awaited.

4. Custom is the best interpreter of laws.

II. Custom, which, as it is a thing of fact, is said to be a frequent mode of acting and the inclination arising thence to act similarly, as a thing of law is defined: a right introduced by the long-standing morals of the people. And thus it differs from prescription, which begets a subjective right, but not a norm of law. Every right of custom supposes some consent of the legislator, at least given generally, to reasonable customs, whether beside or against the law (cc. 27, 28); a people, or community for which law can be made; morals of the people, or frequent, uniform, public, deliberate acts, begetting an inclination; a long time, which now is of forty continuous and completed years. Custom by connivance is prescribed by a shorter time; while centenary and immemorial customs require either one hundred years or that the origin has escaped memory. The morals of the people must be reasonable, and consequently not expressly reprobated, especially as a corruption.

Division. There is custom according to law, which confirms and explains law; beside law, which adds to law; against law, which derogates from law: a special custom can derogate even from a universal law. There is general custom, indeed most general custom, or of the whole Church, while custom of a province is general; special custom, or that of a lesser community. The style of the curia is referred to special custom. There is ordinary or privileged custom: centenary and immemorial, which practically are equated, except that a clause revoking centenary customs does not yet revoke immemorial customs.

Custom ceases intrinsically through a contrary custom or a contrary law. A particular law abrogates particular customs; a universal law permits these to subsist, unless it expressly says otherwise, through a derogatory clause.

The secondary forms of laws are an instruction, which rather explains the law and not rarely at the same time defines certain things, and decrees of a king or of the president of the republic. This kind is common to both. Since they are accessory, they neither prevail over the law nor survive an abrogated law.

But through general decrees of Congregations, true pontifical laws are sometimes made.

On ecclesiastical law. I. Names. Neither special solemnity nor written form is prescribed to be observed by the ecclesiastical legislator. According to varied form there are distinguished: an Apostolic Constitution, or more solemn law contained in a Bull, which is inscribed: Pius, Servant of the servants of God; a Brief, which is given under the ring of the Fisherman; Encyclical letters, which are directed to a certain universality of persons; the words Motu Proprio, which demonstrate a spontaneous origin. Decrees are both of Councils and of Roman Congregations. Through rescripts an outside petition is satisfied. Laws are issued by living voice in a consistorial allocution. If they are contained in some Code, individual laws are called canons. Statutes designate laws made by non-pontifical authority, or also ordinances of the internal government of a college or moral person, such as a chapter, confraternity.

II. Promulgation by the Holy See now takes place regularly by insertion in the Acta Apostolicae Sedis; no special form is prescribed for bishops, who not rarely pronounce laws in synod.

III. Vacancy. Disciplinary laws, but by no means laws concerning faith or morals or those declarative of divine law, regularly are vacant for three months from the day inscribed on the fascicle of the Acta Apostolicae Sedis by which they are promulgated.

IV. The extension of universal law is to all the faithful. Yet Orientals are regularly exempt from disciplinary pontifical laws. Particular laws are presumed territorial, and regularly do not oblige subjects outside the territory for which they have been given.

V. Force of laws. A law is not presumed to be invalidating; ignorance prevents the penalty but not the effect of invalidation. In doubt of law, even an invalidating law does not urge; and in doubt of fact, dispensation can be given by the Ordinary, if the Pontiff himself is accustomed to dispense in that law.

VI. Duration. Laws of themselves remain until they are revoked. But a general law of itself does not derogate from a special law of places or persons. Yet the Code has removed laws even particular laws opposed to itself, as also customs which are not centenary or immemorial.

VII. Author of law. 1. The ecclesiastical hierarchy, or series of persons who in various degree participate either the power of order or of jurisdiction, or both, is of divine origin in itself, yet not in the individual persons by whom it is participated. It is of divine origin in the Supreme Pontiff and generically in bishops.

2. The first grade is occupied by the Supreme Pontiff, who, for exercising his universal jurisdiction, uses the Sacred Congregations, Tribunals, and Offices of the Roman Curia, and various Delegates. He himself also constitutes abbots or prelates nullius and prelates of clerical religious institutes. An inadequately distinct subject is an ecumenical Council. The second grade is that of residential bishops (titular bishops, as such, have no jurisdiction), with perfect ordinary power. In their curia there occur the vicar general, who is also the Ordinary of the place, the chancellor, and the official of justice. The bishop is aided by the chapter of the cathedral church, or, where a chapter is lacking, by the assembly of consultors. Over the districts into which the diocese is divided there is placed a dean or vicar forane with some function of inspection. In the diocesan synod, which is to be convoked in each ten years, the bishop alone is legislator.

When the see is vacant, the ordinary jurisdiction of the bishop passes into the cathedral chapter, which must, within eight days, pour it all into the capitular vicar.

Several dioceses constitute an ecclesiastical province, over which presides, with limited jurisdiction, the Archbishop or Metropolitan, the judge of appeal, while the other bishops of the same province are called suffragans. The Metropolitan himself must once for all, with the Holy See approving, choose from among the suffragans a judge of appeal from his tribunal. The provincial Council, to be celebrated every twentieth year, is constituted especially of bishops of the province and archbishops or independent bishops, who must once for all choose for themselves the provincial council at which they assist. Patriarchs, who are merely honorific in the West, in the East are supreme pastors of some rite.

A plenary Council of several provinces is not gathered without the permission of the Holy See. The decrees both of a provincial Council and of a plenary Council cannot be promulgated unless after they have been approved by the Sacred Congregation of the Council.

3. Legislators in the Church are the Roman Pontiff, whether alone or in Council; whether by himself or through the Roman Congregations. Within the ambit of the power granted, the Roman Congregations and Pontifical Legates are legislators. Next are the plenary and provincial Council; Bishops and Prelates of similar jurisdiction; when the see is vacant, the cathedral chapter and then the capitular Vicar; the general Chapter of exempt clerical religious Orders; sometimes provincial chapters; rarely the General Superior himself.

Bishops, by their laws, further determine universal laws and apply them to the diocese.

VIII. Subject of law. Universal laws of the Church oblige of themselves all the baptized who habitually are masters of themselves, even heretics and schismatics, with a certain exception saved for marriage. Yet as regards laws which directly regard the sanctification of persons, not a few exempt non-Catholics who by birth itself belong to constituted sects; and certainly they can be left in their good faith. Those doubtfully baptized, in the external forum, if baptism has been probable, are subjected to the laws; in the internal forum, the principle can be applied: no one is held by an uncertain law. The habitually insane are not held by merely ecclesiastical laws, nor those who because of age do not possess sufficient use of reason or are not older than seven years, except for the precept of annual confession and paschal communion, and with delicts also excepted. Yet penalties latae sententiae are not incurred by the impubes; and from the law of fast the faithful before twenty-one completed years and after sixty begun years are exempt. Particular laws of a territory oblige inhabitants, i.e. those who have domicile there; sojourners, i.e. those who have quasi-domicile there; and transients. Pilgrims, i.e. those who are staying outside their domicile or quasi-domicile, are of themselves immune.

Domicile, or stable seat, is either necessary, which the law assigns to a wife, an insane person, and one less than twenty-one years old, or voluntary, which is acquired by dwelling in some place with the intention of perpetual residence, if nothing calls away; or by dwelling prolonged for ten continuous years. Quasi-domicile is gained by dwelling conjoined with the intention of remaining there for the greater part of a year or, in reality, prolonged beyond six months. Each can be had either in a diocese or in a parish; and, if it has been voluntary, it is lost by departure from the place with the intention of not returning.

Inhabitants and sojourners are held in the territory by the particular laws of the place; indeed also when absent, if the laws are personal or if their violation harms in the proper territory. Pilgrims are held by universal laws in places where they are in force; outside their own territory they are held of themselves neither by the proper laws of their own territory nor by the proper laws of the territory where they are, "except laws which provide for public order or determine the solemnities of acts."

There are also exempt places. The house of an exempt religious institute is not fully exempt, but only by reason of the religious.

IX. Authentic interpretation of law is made by law, sentence, or rescript. Insertion in the Acta Apostolicae Sedis proves authenticity, but not the force of universal law of rescripts which are inscribed as directed to definite persons or regions. A declaration outside the A. A. S. is juridically ignored. Rescripts emanate from various Congregations; nevertheless the authentic interpretation of the Canonical Code is reserved to the special Pontifical Commission. An authentic interpretation by way of law must be promulgated, if the law was doubtful.

X. Computation of time, saving liturgical laws. 1. An hour, consisting of sixty minutes, is to be estimated of itself from the common usage of the place, with the option nevertheless made, for various obligations, of true, mean, legal, or extraordinary time. 2. A day consists of twenty-four hours, to be computed from midnight. 3. A week indicates, unless the law establishes that the week is to be taken as in the calendar, seven intervals, even non-continuous, of twenty-four continuous hours. 4. A month and a year, if they are not taken as in the calendar, designate respectively thirty and three hundred sixty-five days. When designated by their proper name formally or equivalently, or when continuous time is assigned, they are taken as in the calendar. 5. If the terminus a quo is assigned neither explicitly nor implicitly, time is computed from moment to moment. If the time from which is assigned, with the special case excluded of acts which, like vows or an election, are renewed at stated times: either it coincides with the beginning of the day, and then the first day is computed, so that when the last day of the same number has begun the time is finished; or it does not coincide with the beginning of the day, and then the first day is not computed, so that the time is finished only when the last day of the same number has been completed. But the last day of a shorter month, v.g. 28 February, is held as the day of the same number as the final days of a month which has more days. If the time is shorter than a month, the day of the same number is that on which the number indicated by the very space is repeated: the eighth day in an octave. 6. If acts recur after stated intervals, the time is finished when the same day on which it began recurs, with consideration of the hour neglected. As regards obligations of contracts, civil rules have force of themselves.

Continuous time does not admit interruption; useful time does not run for one who is ignorant or impeded.

XI. Privileges, in order that they operate in the external forum, must be duly proved. Of themselves, they are judged perpetual; with the clause "at our good pleasure," or a similar one, they are extinguished when the right of the one granting is resolved. Habitual faculties (even for a certain number of cases) are reckoned among privileges beside the law, and pass to Ordinaries as successors. Personal privileges pass with the person, real and local privileges with the thing and place; local privileges revive if the place is restored within fifty years.

XII. Dispensations. I. Author. 1. The Supreme Pontiff dispenses in every ecclesiastical law, but in no divine law; yet, for a just cause, he can relax a bond supposed by law. 2. Ordinaries do not dispense from pontifical law unless dispensation is expressly granted to them, or unless recourse to the Holy See is difficult, there is danger in delay, and dispensation is customarily granted by the Pontiff. Express faculty is given to Ordinaries of places in doubt of fact, in sacred times, in non-reserved vows and oaths, in interstices, in banns, in impediments of marriage, in irregularities from delict, in penalties, in prohibited books, in the examination of parochs. They also obtain peculiar faculties from the Sacred Penitentiary, from Propaganda Fide, or from the Sacred Congregation of the Council or concerning the Sacraments. They can dispense in laws to which is added: unless dispensation is given; in laws of a plenary or provincial Council; in synodal statutes. 3. Major Superiors of exempt clerical religious institutes come under the name of Ordinaries, and, as such, participate the mentioned faculties, with the exception of banns, impediments of marriage, examination of a paroch, the benefit of the clause "unless dispensation is given," decrees of a plenary or provincial council, and synodal statutes. They have besides special faculties. 4. Parochs dispense in sacred times and impediments of marriage. 5. Superiors of an exempt clerical religious institute, in sacred times. 6. Confessors in the conditions of indulgences. In more urgent cases, they can suspend penalties and absolve from reserved censures; and they also have a certain power in impediments of marriage. Regular confessors have privileges proper to themselves. 7. The priest assisting at marriage dispenses in impediments of marriage by reason of a more urgent case.

Power given for individual cases permits a special concession and not beyond what the present necessity requires.

II. The subject of dispensation is subjects everywhere, and transients in the territory where they are staying. Pilgrims are also subjects, when there is question of sacred times, vows and oaths, and more urgent cases for marriage and censures. Penitents are those whose confessions can be heard. An inferior to whom a general faculty of dispensing has been given can dispense with himself, but not of itself a confessor. With the Superior agreeing, Regulars can be dispensed by the Ordinary of the place, at least in cases in which their own Ordinary lacks faculty.

III. The obtaining of a dispensation for another is valid; and it holds in doubt concerning a sufficient cause.

IV. The use of a personal dispensation is of itself permitted everywhere. Nor does a dispensation cease if the motivating cause subsists in part, or if the removal of the cause has been doubtful.

On Rescripts. I. A rescript, or a response given in writing at the instance of one requesting, is of justice or of grace. From the Pontiff or from an Ordinary all, with the exception of a few excommunicated, suspended, or personally interdicted persons, can obtain rescripts for themselves or for others, which have force even before acceptance.

II. Validity is subordinated only to the particles if, provided that, or equivalents, and to the general condition: if the petitions rest upon truth. This clause must be true at the moment either of the grace given without execution or of execution. The truth of one motivating cause is always required, even if the rescript is given Motu Proprio. Yet except dispensations in lesser impediments of marriage. Errors in the designation of person, place, or thing do not stand in the way of validity.

III. The executor must be notified by authority concerning his faculty; he cannot deny execution if execution alone has been entrusted to him; otherwise if the concession is committed to his judgment. He must make execution in the external forum in writing; he can correct an error in a new execution; nor is he of himself prohibited from substituting another for himself. A rescript to which either no executor or an executor distinct from the Ordinary is designated does not of itself have to be presented to the Ordinary.

IV. By the vacancy of the see of the one granting, only those rescripts cease which have this clause or, while the matter is entire, which contain a particular grace to be made to persons designated in the rescript.

V. Recourse from one Superior to another, when a prior rejection has not been manifested, is sometimes invalid, sometimes merely illicit.

On the Roman Curia. The Roman Curia, distinct from the Pontifical Court and from the Vicariate of the City, consists of the Sacred Congregations, Tribunals, and Offices.

For all these, norms are prescribed by the Supreme Pontiff; secrecy, more or less rigorous, is imposed. They must make known to the Supreme Pontiff whatever is grave or extraordinary; and, with special faculties and the sentences of tribunals excepted, submit graces and resolutions to him for approval. Special commissions of Cardinals settle controversies concerning competence.

I. The Sacred Congregations essentially consist of Cardinals, to whom are added a Secretary and Under-Secretary (one or more), Consultors, and minor Officials. Competence is defined either by matter or by territory.

In their province they give general decrees and instructions; authentic interpretations; dispensations and graces; finally they settle causes by the disciplinary and administrative way.

Today eleven Congregations are numbered: the Holy Office - the Consistorial - that Concerning the Discipline of the Sacraments - that of the Council - that Set over the Affairs of Religious Sodales - that of Propaganda Fide - that of Sacred Rites - the Ceremonial - that for Extraordinary Ecclesiastical Affairs - that concerning Seminaries and Universities - that for the Eastern Church.

There is also the Congregation of the Reverend Fabric of St. Peter, not named in the Code, which, with the Congregation of the Council, has a common faculty of reducing the burdens of Masses and of pious legacies.

II. There are three Tribunals. 1. The Sacred Penitentiary (to which all can have recourse), for matters of the internal forum. 2. The Sacred Rota: the ordinary tribunal of appeal. 3. The Supreme Tribunal of the Apostolic Signatura, which is as it were a Court of cassation.

III. The Offices are: 1. The Apostolic Chancery, for expediting bulls. 2. The Datary, for conferring non-consistorial benefices. 3. The Apostolic Camera, for caring for and administering the temporal goods and rights of the Holy See, especially when the See is vacant. 4. The Secretariat of State, which has three parts: concerning extraordinary affairs, concerning ordinary affairs, concerning the expedition of briefs. 5. The Secretariats of Briefs to Princes and of Latin letters, through which the Pontiff cares that his Latin acts be written.

On civil law. Civil laws today are made generally by the consent of a double Parliamentary assembly and by the sanction of the Prince or President of the republic. The Prince or President also makes decrees, which must always at the same time be countersigned by a minister, so that there be someone who answers for them.

Civil laws have customarily been promulgated by insertion in an official periodical, and are accustomed to be vacant for some days.

The Supreme Pontiff alone is divinely exempt from civil laws. Other clerics are exempt by canonical law alone and as regards the coercive part. Indeed the Holy See sometimes renounces by concordats the privileged forum for civil causes and for criminal causes of clerics lower than a bishop; or it admits contrary customs. Elsewhere it is silent and generally strives to obtain this, that without the authority of the Holy See a bishop not be dragged before a lay forum. Clerics will try to avoid penal lawsuits; when cited they will ask their Superiors; when magistrates ask, they will advise that the due permission be secured; they will not disturb the good faith of the many. But they themselves will not sue other clerics before a lay tribunal without permission.

No law today generally canonizes civil laws; yet in certain matters the application of civil law in the canonical forum has been commanded.

After the excessive individualism of the nineteenth century, civil laws now incline toward the opposite excess, by which the liberty of individuals is more and more circumscribed. It is difficult to define how far the liberty of individuals can be coerced.

— I. Common character of every law. Every true law is a principle of unity. For through every law, men are directed in a harmonious manner to a social or common end. Since this end is the good immediately of all under the common quality of members, and mediately of individuals - for Society itself, sooner or later, exists for physical persons - the law which effectively leads men to that end is also of itself for them a principle of perfection and happiness. Therefore they err greatly who conceive or present law as hateful or hostile to man.

II. On divine law. 1. Yet without divine law, human law cannot truly be for individuals a principle of beatitude. For those who preside over the republic are compelled, on account of the common good, to command many things by which, directly or indirectly, citizens are deprived of temporal goods and of life itself, without any compensation of human or earthly good. Divine law alone, since it remunerates according to merit the moral value of every good action, effects that in the higher order we recover what has been lost in the lower order, and thus magnificently repairs that unnatural divorce by which happiness is torn away from morally more excellent action.

2. There is no human action which is not touched by divine law, since in every human action that supreme law must be observed by which every deliberation of ours must be a movement toward the end, or God. Therefore divine law is universal in its extension.

3. Insofar as it is a means to the end, it also has this excellence, that not even in the smallest part does it fall short of its primary end, which is the glory of God. Whether men obey divine law or resist it, they cannot take His glory away from God.

4. Therefore also divine law, without any definitive detriment of order, can leave to man the whole psychological liberty of acting otherwise than it commands. Therefore no broader and purer tolerance of evil can be devised than the divine.

5. But insofar as it pursues the intrinsic good of men, divine law, both natural and supernatural in the economy of the New Testament, agrees with the inborn appetite of the human will, by which it requires God as natural end, by which it also desires Him as supernatural end, to be possessed in Himself, if only divine munificence deigns to supply the essential defect of our proportion to such an end.

Wherefore he who, by obeying divine law, does the divine will, at the same time more perfectly fulfills his own proper will, and perfects his internal unity: his particular choices correspond to its general and unconquerable intention.

6. The same law of the present economy helps us to act well, both by the external stimuli of the truths which it teaches, of the examples of Christ which it proposes to be imitated, and by the internal motions of the Holy Spirit by whom it is continually written in our hearts; and especially when we approach the sacraments which are fountains of graces. And thus, while it procures for man the faculty and facility of execution, it becomes for him the principle of an inestimable moral liberty.

III. On human law. In our present condition, human law is deficient in its extension, since it cannot affect even all external actions of men, and consequently cannot prohibit all evils. Thence it is deficient in its tolerance, since unwillingly it is compelled to bear evils which it does not know how to recall to a better order. It is deficient in its finality, since it procures the end of the common good only imperfectly. It is deficient in its sanction, which is only of penalties, and which many guilty persons escape. It is deficient in its disposition, which sometimes is altogether deceived, and cannot be adapted except to things as they generally are, so that it must necessarily suffer accidental "failings." To guard against harmful excesses, human law must impose limits upon our physical liberty. And since the proper ordinances of human law are not demanded by the very essences of things, they also accord less with the internal aspirations of subjects. Finally, as merely external, it can foster and promote the moral liberty of man far less than divine law can.

But by divine law, human law is wonderfully aided, since from it it borrows light for directing, efficacy for coercing, and sweetness for obtaining willing docility.

IV. Obedience of Catholics. Worshippers of the true religion find in that divine law motives of a more sublime, easier, and fuller docility for obeying even civil laws. Of a more sublime docility, by obeying powers as ministers of God ¹; of an easier docility, by obeying as ministers unto good (2); of a fuller docility, by obeying not only to the eye but as servants of Christ, doing the will of God from the heart (3); and thus "purifying their souls in the obedience of charity" (4).

But what is by no means to be passed over, these motives of a more perfect docility destroy no reason of obedience which can remain available to non-Catholics or unbelievers.

If, therefore, we probably opine that several civil laws are only penal, let the adversaries of Catholics not be scandalized from this, nor pretend that they are scandalized. For even then there remain for us Catholics all the reasons of obeying which alone explicitly suffice for our honest adversaries for obeying every law. Therefore for us a law, even a penal one, is fortified and surrounded by the supports by which alone every law is protected by our adversaries. Indeed even such a law is urged upon us by the supreme law of every action of ours, which we must preach after the Apostle saying: "Let all your things be done in charity" (I Cor. 16, 14).

¹ Cf. Rom. 13, 1. 6. - (2) Likewise 13, 4. - (3) Eph. 6, 6. - (4) 1 St. Pet. 1, 22.

I. Every law is a principle of social unity, and consequently of perfection and happiness, far from being hateful and hostile to man.

II. Divine law, by its remunerative sanction, removes or prevents the divorce of honesty and happiness; in its extension it is universal; in its primary end, the glory of God, it is never frustrated; without detriment of order it tolerates evil in the broadest manner; it prescribes those things which agree with our inborn appetite; it fosters and promotes our moral liberty.

III. Human law is imperfect, whether you consider its extension, or its finality, or its tolerance of evil, or its dispositions and sanctions, or the aids which it offers to moral liberty. It must restrict the psychological liberty of man; and it issues precepts which are less contained in our natural appetite. But it is wonderfully aided by divine law so that it may command prudently, effectively, and sweetly.

IV. Catholics find in true religion motives of a more sublime, easier, and fuller docility for observing even civil laws. Penal laws also are fortified by motives of obeying which, for unbelievers, alone surround all obedience of citizens to be rendered to laws. Indeed the observance of a penal law is urged also by the supreme law of charity.

147. Concerning the legislative power of secular princes, there have been various ravings of heretics and unbelievers. Some, among whom were the Albigensians, denied that princes and their laws must be obeyed. Others, with the Reformers of the sixteenth century, ascribed all power to princes, even concerning spiritual things. Others, such as the followers of modern liberalism, contend that supreme authority consists in the sum of number and material forces, etc.

148. PRINCIPLES. I. Secular princes and legislators have from God the power of commanding and making laws concerning temporal and civil matters. This proposition, Suarez testifying, is of faith, or at least proximate to faith (de Leg., l. 3, c. 5, n. 1).

It is proved 1. From the Epistle of St. Paul to the Romans (13:1): There is no power except from God... Therefore he who resists the power resists the ordinance of God. Cf. Prov. 8:15, where it is said: Through me kings reign... through me princes command. Therefore kings are ministers of God (Rom. 13:14), not ministers or mandataries of the multitude.

2. By reason. Civil society emanates from the Author of nature, that is, from God. Now, in order that some society can subsist, there is necessary in it some supreme authority, which is the foundation or principle of political unity. Therefore legislative power must be traced back to God, as author of nature, nor does it emanate from the people, even if it is bestowed on a man through the people as mediator (I, 104). Cf. the Encyclical Diuturnum of Leo XIII, June 29, 1881. See more among the philosophers.

Therefore St. Alphonsus rightly says (H. Ap., XIII, 13): "It is altogether false that in the community of subjects there is some authority superior to and independent from the prince, so that, in the case in which the prince governs the kingdom perversely, the whole community could despoil him of kingdom and life." This error was condemned by Pius IX (Syll., n. 63) and by Pius X, in the letters against the Sillonists (A. A. S., II, p. 615).

149. II. Civil power is altogether distinct from ecclesiastical power, and necessarily subordinated to it. The proposition is certain and common.

Civil power: 1. Is distinct; this is evident from the words of the Lord (Matt. 22:21): Render therefore to Caesar the things that are Caesar's, and to God the things that are God's. But the distinction is had not only as to origin and form of government, as was said (n. 138), but especially as to the proximate end proper to each.

2. It is subordinated. "Secular power," says St. Thomas (2.2, q. 60, a. 6, ad 3), "is subject to spiritual power, as the body to the soul." The reason for this subordination is the very subordination which the secondary end necessarily has to the ultimate end, that is, the subordination of earthly happiness, which civil society proximately intends, to heavenly happiness, which the Church proximately intends, and to which she in reality leads. See the Encyclical Immortale Dei (November 1, 1885).

Hence: 1. It belongs to civil power never to impede the attainment of the ultimate end, to which it is remotely ordered, to protect religion, and to promote the moral good of the community.

2. While it establishes or executes laws, it necessarily places moral acts, in which (if the matter concerns a Christian legislator) it is subject to the Church, just as private men are. Wherefore "the Supreme Pontiff will be able to abrogate and correct the civil laws of other princes, if they are opposed to equity" (I, n. 104), and laws thus corrected and abrogated no longer oblige in conscience (I, n. 106).

150. Questions. QUERY 1. Who are the men in whom legislative power inheres in fact?

Resp. They are those who enjoy supreme authority and do not act in the name of another, such as kings, emperors, princes in a principality, presidents of a legitimately constituted republic, etc.; but not leaders of soldiers, nor prefects of provinces, because they are only delegates, who cannot act in their own name. But in representative kingdoms, legislative power belongs not only to the king or president alone, but also to representatives elected either by the king himself or by the people.

QUERY 2. Whether even a tyrant must be obeyed?

Resp. Distinguish. 1. If the tyrant is one only by REGIMEN (that is, if he rules and oppresses perversely the kingdom which he legitimately possesses), obedience must certainly be given to him in lawful things: as is evident from what was said n. 148. But what remedy remains if the regime of the prince were excessively unjust and tyrannical, and human help could not be had? "Recourse must be had," says St. Thomas (de Regim. Princ., l. 1, c. 6), "to God the king of all, who is the helper in necessities. But in order that the people may deserve to obtain this benefit from God, it ought to cease from sins, because in vengeance for sin, by divine permission, the impious receive power." Cf. H. Ap., VIII, 13.

2. If the tyrant is one by TITLE (or a usurper), in the very act of invasion obedience must not be given to him, nor is it lawful to acknowledge or help him by deeds, so that he may be established in his possession. For the fact of usurpation, of itself, gives no right to the invader, who, since he is in bad faith, can never heal his possession by prescription. "Nor is right acquired by the mere material fact" (Syll., error 59).

Therefore subjects, as soon as they can do this without detriment to the public good, are bound to return to the former lord.

But if the usurper now peacefully holds public authority, and his possession, by lapse of time, is now so greatly strengthened that the former order cannot be restored without grave detriment to the public good, obedience must be given to him in lawful things, not otherwise than if he were the legitimate prince. For the peace to be preserved for the community demands this for itself; nor does such obedience include any approval of tyranny, because it is by no means rendered for the sake of the usurper, but for the sake of the subjects who live under his command (I, n. 94; ed. G., I, p. 71). Cf. Muller, l. 1, § 50, n. 8.

Civil right, or the collection of civil laws, is old or modern.

151. I. The old laws are contained in the Body of Civil Law, which is a complex of laws which the Emperor Justinian, in the sixth century, especially by the work of Tribonian, the most celebrated jurisconsult, collected into one and published. It consists of two tomes. The first contains the Institutiones, which are as it were the elements of law, distributed into four books, and the Digesta juris enucleati, or Pandects, which consist of 50 books and are generally cited ff. The second tome contains the collection of decisions which the same Emperor afterward edited, that is, the Code distributed into 12 books. To the Code are added 68 more recent Constitutions, which they call Authentics and Novels, as if newly edited. These laws constituted Roman law, which with ecclesiastical law formed common right, so called because for several centuries the whole world commonly used it.

152. II. The laws of modern right are found in various codes, which almost all kingdoms established as proper to themselves, especially from the time of the French Disturbance, at the end of the eighteenth century.

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.

39. The state of the Republic, as being the origin and source of all rights, is endowed with a certain right circumscribed by no limits.

Alloc. Maxima quidem, June 9, 1862.

40. The doctrine of the Catholic Church is opposed to the good and advantages of human society.

Encyclical letter Qui pluribus, November 9, 1846. - Alloc. Quibus quantisque, April 20, 1849.

41. To the civil power, even when exercised by an infidel ruler, there belongs an indirect negative power in sacred things; therefore there belongs to the same not only the right which they call exequatur, but also the right of appeal which they name from abuse.

Apostolic Letters Ad Apostolicae, August 22, 1851.

42. In a conflict of the laws of both powers, civil law prevails.

Apostolic Letters Ad Apostolicae, August 22, 1851.

43. The lay power has authority to rescind, declare, and make void solemn conventions (commonly Concordats) entered into with the Apostolic See concerning the use of rights pertaining to ecclesiastical immunity, without its consent, indeed even while it protests.

Alloc. In consistoriali, November 1, 1850. - Alloc. Multis gravibusque, December 17, 1860.

44. The civil authority can mix itself into matters which pertain to religion, morals, and spiritual government. Hence it can judge concerning the instructions which the Pastors of the Churches publish, according to their office, for the norm of consciences; indeed, it can even decree concerning the administration of the divine Sacraments and the dispositions necessary for receiving them.

Alloc. In consistoriali, November 1, 1850. - Alloc. Maxima quidem, June 9, 1862.

45. The whole government of public schools, in which the youth of some Christian Republic is instructed, with episcopal seminaries excepted in some respect, can and ought to be attributed to the civil authority; and indeed so attributed that no right be recognized in any other authority whatsoever of involving itself in the discipline of schools, in the governance of studies, in the conferral of degrees, and in the selection or approval of teachers.

Alloc. In consistoriali, November 1, 1850. - Alloc. Quibus luctuosissimis, September 5, 1851.

46. Indeed, in the seminaries themselves of Clerics, the method of studies to be employed is subjected to civil authority.

Alloc. Nunquam fore, December 15, 1856.

47. The best plan of civil society demands that popular schools, which are open to all boys from every class of the people, and public Institutes generally, which are destined for handing down letters and more serious disciplines and for caring for the education of youth, be exempted from every authority, moderating force, and interference of the Church, and be subjected to the full choice of civil and political authority, according to the pleasures of those ruling and according to the standard of the common opinions of the age.

Letter to the Archbishop of Freiburg, Quam non sine, July 14, 1864.

48. That plan of instructing youth can be approved by Catholic men which is separated from the Catholic Faith and from the power of the Church, and which looks only to the science of merely natural things and to the ends of earthly social life, or at least primarily to them.

Letter to the Archbishop of Freiburg, Quam non sine, July 14, 1864.

49. The civil authority can impede the sacred Prelates and the faithful people from communicating freely and mutually with the Roman Pontiff.

Alloc. Maxima quidem, June 9, 1862.

50. The lay authority has by itself the right of presenting Bishops, and can exact from them that they enter upon the administration of dioceses before they receive canonical institution and Apostolic Letters from the Holy See.

Alloc. Nunquam fore, December 15, 1856.

51. Indeed, the lay Government has the right of deposing Bishops from the exercise of pastoral ministry, nor is it bound to obey the Roman Pontiff in those things which regard the Episcopate and the institution of Bishops.

Apostolic Letters Multiplices inter, June 10, 1851. - Alloc. Acerbissimum, September 27, 1852.

52. The Government can by its own right change the age prescribed by the Church for the religious profession both of women and of men, and command all religious Families that they admit no one to pronounce solemn vows without its permission.

Alloc. Nunquam fore, December 15, 1856.

53. Laws which pertain to protecting the state of religious Families and their rights and offices are to be abrogated; indeed, the civil Government can furnish aid to all those who wish to fall away from the institute of religious life they have undertaken, and to break solemn vows; and likewise it can entirely extinguish those same religious Families, as well as Collegiate Churches and simple Benefices, even of the right of patronage, and subject and vindicate their goods and revenues to the administration and choice of the civil power.

Alloc. Acerbissimum, September 27, 1852. - Alloc. Probe memineritis, January 22, 1855. - Alloc. Cum saepe, July 26, 1855.

54. Kings and Princes are not only exempt from the jurisdiction of the Church, but are also superior to the Church in deciding questions of jurisdiction.

Apostolic Letters Multiplices inter, June 10, 1851.

55. The Church is to be separated from the State, and the State from the Church.

Alloc. Acerbissimum, September 27, 1852.

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.

452. • A. On Magistrates. Principles. I. They ought to know the things which pertain to their office, for example laws.

II. They are bound to seek and guard the common safety of all.

453. You will resolve. They sin:

1° Who, altogether ignorant of laws and not powerful in judgment, procure or assume some office for themselves, with danger of inflicting harm on those concerning whose controversies they are going to pronounce sentence, or whose business they are going to handle.¹

2° Who foster quarrels or lawsuits for their own gain.²

3° Who pronounce an unjust sentence, yielding to popular prejudices, or courting popular favor, or seeking the utilities of private persons, with damage to the innocent.³

4° Who permit the rights of conscience to be violated, the children of the poor being taken away by masters from ancestral Religion against the laws.⁴

5° Who promote or take care that men not suitable be promoted to offices because they are men of their own party;⁵ or indeed suitable men, but with the promoted, by wages agreed upon to the prejudice of the public treasury; and likewise those who take care or permit themselves to be promoted by this same pact.

6° Who either permit the public treasury to be pillaged, by entrusting public money to fraudulent men,⁶ or pillage it themselves, while, for example, they expose public money to dangerous businesses from which they hope profit for themselves, or on occasion of contracts which they enter with private persons in the name of the republic they bargain or procure something unjustly for themselves.

7° Higher magistrates, namely Presidents and Governors, if, uniquely seeking their repeated election, in distribution of offices and in laws either to be approved or vetoed they especially consider whether they are going to procure more votes for themselves, and to that end neglect the advantages of most citizens.⁷

8° Who do not take care that laws be committed to execution, and do not guard public tranquillity and order.⁸

454. • Yet they do not sin if, when asked and from office, or according to the laws, they do something which of itself is licit, but either because of adjuncts yields to the detriment of Religion, or is little consonant with the laws and mind of the Church, although not forbidden. For 1) they do these things not in their own name, but in the name of the law; and 2) they neither intend the evil effect from a cause not evil in itself, nor are they compelled to impede it with the loss of their office or with their own danger. Besides, they would try this in vain; for what citizens seek by force of law they will certainly obtain by recourse to others, especially superior magistrates. Therefore a Catholic magistrate will be excused who commands that a child be shut up in a prison, with testimony sworn before him according to the laws that the child is vagrant, or that the parents are vagrant, although he knows that by this arrangement the child is to be instructed there according to the principles of the sects. Nor does he sin who receives the matrimonial consent of citizens and refers this into the records, not solicitous concerning impediments of the Church; for in this case he usurps no spiritual authority, but only testifies concerning the consent furnished. Therefore the Cardinal Prefect of the Sacred Congregation de Propaganda Fide wrote back to Bishop Kenrick on July 30, 1851, that he was not to be disturbed for this cause. Nevertheless Catholic magistrates seem to sin who easily receive Catholics approaching them to contract matrimony, while there is a supply of a priest, since they add courage to sinners; but if, having been admonished, those who seek to enter nuptials are unwilling to desist, they are not guilty of fault because they furnish a merely civil service.¹

455. • B. On Legislators. Principles. I. They are bound to be skilled in the matters to be treated in the assembly of legislators,² or certainly to acquire skill in these, lest they either themselves give a vote rashly and with danger of harm to the republic or to private persons, or persuade others to give one.

II. They are bound principally to seek the public utility, and only then the utility of those by whose votes they were elected.³

456. • You will resolve. They sin:

1° Who promote the utilities and advantages of certain places for catching votes, with public detriment.⁴

2° Who, unless others obligate themselves to furnish votes for matters which have no public utility, refuse to vote for matters which concern all.⁵

3° Who squander public money in things of no moment.⁶

4° Who neglect to carry out those things which would bring very many advantages to the republic, or reject profitable things from party zeal.⁷

5° Who spend time in useless disputes, with expense to the fisc.⁸

6° Who give votes after a certain pact concerning payment has been entered.¹

7° Who take care that laws be made and unmade, that they may consult their own affairs with detriment of others.²

8° Who in the Senate cast votes concerning those designated by the President or Governor for some public office, from party zeal by voting for the unworthy or rejecting the worthy.³

9° Catholic legislators confirming by their vote whatever is opposed to the doctrine of the Church, for example that divorce from the bond of matrimony may be given because of adultery or another cause. But they are not to be blamed because they furnish their service for making laws by which the rights of all citizens are vindicated according to the Constitution.⁴

St. Thomas, I-II, q. 91, a. 3; q. 95, a. 1.

262. Human law in the broader sense is that which has been borne by the positive will of any human legislator for directing society and its members to their end; but in the present matter it is taken in the stricter sense for civil law, because this is borne by a power which naturally belongs to man, as being destined to society, and which by its nature is human, and thus is distinguished from Christian and ecclesiastical law, which is borne by man, but by a power positively granted to him by the free will of God.

1. Yet originarily it is from the author of nature, just as nature itself. Cf. n. 267.

263. Human law is necessary for supplying what is lacking to natural law, both 1) according to its directive force: for inculcating natural law, which in many is unknown, for determining it more, and for completing it with other things useful for living rightly; and 2) according to its coercive force: for obtaining its observance from the wicked, by restraining them. For:

1. The principles of natural law are unknown in many, are somewhat abstract, universal, indeterminate as to mode, time, and place, and do not contain all things by which man is usefully moved to good; whence it is not sufficient for directing society, but needs practical determination and sanction. And this determination, that society may be ordered, does not suffice as casual and particular, but must be common and stable, by which all, with united forces, tend in the same way to good. But such a stable and common determination, supplying the defect of natural law and completing it, is human law.

2. Inclination or aptitude to virtue is in man naturally, but the very perfection and consummation of virtue does not come to man except by industry and discipline. Men ordinarily are not sufficient for themselves for this discipline, because the perfection of virtue chiefly consists in withdrawing men from undue pleasures to which they are most inclined; therefore it is necessary that men be ruled by others. These things being supposed, one can argue thus:

Man, that he may decline from evil and learn virtue, needs the rule of others. And indeed for those who by disposition of nature, or custom, or the gift of God are inclined to virtue, paternal discipline suffices, which is done by admonitions; but many are corrupt or prone to vices who are not easily moved by words and admonitions. Therefore it was necessary that they be restrained from evil by force or fear, says St. Thomas, q. 95, a. 1, "so that at least thus, ceasing from evil-doing, they might render a quiet life to others, and they themselves at length through this sort of habituation might be led to this, that they would voluntarily do the good things which before they fulfilled from fear, and thus would become virtuous." But human law does this.

264. Objection.

Nor should you say that the decisions of judges suffice. "First, indeed, because it is easier to find a few wise men sufficient for laying down right laws than many who would be required for judging rightly about individual cases. Secondly, because those who lay down laws consider over much time what is to be borne by law; but judgments about singular deeds are made from suddenly arisen cases. But from many things considered a man can more easily see what is right than from some one deed alone. Thirdly, because legislators judge universally and about future things; but men presiding over judgments judge about present things, toward which they are affected by love or hatred, or some desire, and thus their judgment is depraved. Therefore, because the animated justice of the judge is not found in many, and because it is flexible, it was necessary, in whatever matters it is possible, for law to determine what is to be judged, and to commit very few things to the discretion of men." Ibid., ad 2.

265. Human or civil law is rightly defined as an ordination of human reason by which society or the State and its members are directed immediately to temporal perfection and happiness by him who has care of it, and mediately are aided toward the ultimate end. Therefore the immediate and proximate end of law is the common good of civil society and of its members, that is, their conservation, perfection, and temporal happiness. But these imply the practice of virtue: for happiness in this life consists formally in the exercise of virtue, and instrumentally in the abundance of goods necessary for the exercise of virtue (n. 44). But virtue is ordered to eternal beatitude. Therefore the remote and mediate end, to which the proximate end is to be subordinated, is eternal beatitude.

1. St. Thomas, on I Ethics, c. 13, lect. 19; c. 10, lect. 10 and 16.

266. It is objected: thus with Machiavelli and other politicians, public tranquility and temporal happiness are the end of political rule. But rules of honesty and precepts of religion are very much opposed to public tranquility and temporal happiness. Therefore a political prince is not bound by such rules and principles.

Reply: 1) I distinguish the major: public tranquility and temporal happiness is the proximate end of society, conceded; the ultimate end, denied. There is no regime which ought not be referred to the glory of God and eternal happiness, according to that saying of Augustine (On the City of God, V, 24): "We call those emperors happy if they command just things (that is, honorable things), if they make their power the servant of His majesty, especially for spreading the worship of God." Nor does it follow from this that political rule does not differ from the rule of the Church: for they are two republics adequately distinct by reason of the proximate and immediate end, and of the matter proper to each; but this does not prevent both from conspiring toward the same spiritual end. Therefore, although civil power, insofar as it directly commands, is restricted to its proper matter, nevertheless in its proper matter it rules subjects in order to the end of eternal salvation, as to the remote and ultimate end.

2. I deny the minor. For who, unless he be of a delirious mind, will say that the principles of religion and the rules of honesty are harmful to temporal happiness, since rather they greatly contribute to it, by directing and coercing wicked passions which overthrow common tranquility and temporal happiness? Whence Aristotle says, Politics III, c. 6: "all who have care for the good institution of a city publicly consider virtue and vice."

267. Thesis. Legislative power originally is from God as from the author of nature. - This is clear a) from Scripture: Wis. VI, 2-4; Rom. XIII, 1-7; Prov. VIII, 15-16; Eccli. XVII, 14; b) from reason: for man is naturally a social animal; but society needs a power by which it is ruled; therefore this power is from the author of nature (cf. Leo XIII, enc. Diuturnum, June 29, 1881; Immortale Dei, November 1, 1885; and Humanum genus, April 20, 1884).

268. Power is communicated by God as principal cause, but through the multitude as instrumental cause.

The community of itself is bound to hand over that power, not for a time and in a revocable mode, but in a stable mode in perpetuity, not to be exercised in its name but to be possessed as proper: for thus, from the nature of things, it is ordinarily necessary for the good rule of society. But it can be handed over to various subjects according to the various form or regime of society. If it resides wholly in one, the regime is monarchical; if in an assembly of several nobles, the best or the powerful, it is aristocratic or oligarchical; if in the community itself or in an assembly chosen from every condition and designated by all, it is democratic; finally, if at the same time but partially it resides in several, it is a mixed regime, which flourishes in present-day nations: thus in Belgium it resides partially in a twofold assembly of elected persons who establish laws and in the king who can sanction or not sanction and promulgate laws (Belgian Constitution, art. 26).

Power exists fully in the supreme authority; from that it is sometimes derived restrictedly to certain subordinates, as happens in fiefs, confederated states, etc.

269. Power does not depend per se on faith, probity of life, good morals, nor therefore on sex, age, and other conditions of the subject in whom it resides.

This is clear a) from the Council of Constance, session 8, condemning proposition 15 of Wycliffe;

b) from Scripture, both from the words of Christ commanding tribute to be paid to a pagan prince (Mt. XXII, 21) and to obey the evil and wicked Pharisees (XXIII, 3), and from the words of the Apostles, who teach that unbelieving princes are ministers of God to whom one must obey in conscience (Rom. XIII, 5-7; Tit. III, 1; I Pet. II, 13-15);

c) by reason: man can command not because he is good, but because he is superior.

Nevertheless per accidens power can depend on the aforesaid conditions, if it is so specially determined in law.

St. Thomas, I-II, q. 95, a. 2 and 3.

270. Principle I. Human law is a derivation of natural law.

It is proved: law, since it is an ordination of reason, must be conformable to the rule of reason; for it is not true law unless it is just; the just is the same as what is right according to the rule of reason; therefore, insofar as law has something of justice or of rectitude of reason, so far does it have something of the power of law. But the first rule of reason is natural law. Therefore human law has the power of law insofar as it is derived from the law of nature. But if in anything it is discordant from it, it will no longer be law but a corruption of law (Gregory XVI, enc. Qui pluribus, November 9, 1846; Pius IX, enc. Quanta Cura, December 8, 1864).

271. Principle II. Human law is the complement of natural law.

It is proved: from natural law something can be derived 1) as a necessary conclusion from principles, for example, "one must not kill" from the fact that evil is to be done to no one; and this pertains not to human law alone but has the force of obligating also from the law of nature; 2) as a fitting conclusion or particular determination of a common and indeterminate principle, whether for directing men or for coercing them; and this has vigor immediately from human law alone. Thus, for example, that a contract is to be made in such a mode that justice is better provided for is a determination of the directive principle: contracts are to be entered according to justice; and that thieves are to be punished by prison rather than another penalty is a determination of the coercive principle: thieves are to be punished.

It is said: immediately, because all just human laws obligate mediately by force of this natural principle, that inferiors ought to obey superiors.

272. Principle III. Human law must be proportioned both to the end and to natural and divine law.

It is proved: for human law is a means to the end, and is a rule and measure ruled and measured by the superior natural law and eternal law of God; therefore it must be proportioned to these three. Hence:

1. insofar as it is proportioned to the law of God, it must be congruous to religion and consequently honorable, not contradicting eternal law;

2. insofar as it is conformable to the law of nature, it must be fitting to discipline, that is, a) as to object: just, or establishing that which is right according to reason; b) as to the faculty of agents or the power of subjects: possible and according to nature, because impossibilities are not to be imposed upon men, and according to the custom of the country, because man cannot live in society without bearing himself according to the manner of others; c) as to due circumstances: fitting to place and time;

3. insofar as it is proportioned to the end, it must be expedient for the safety or utility of men, and therefore a) necessary for removing evil or useful for attaining good; b) manifest, that is, clear so that it can be understood, lest it be a harm to men; c) conveniently handed down for the republic, that is, ordered to the common good.

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.

Note. Some laws are purely preceptive or prohibitory; some purely penal, some mixed. A purely preceptive or prohibitive law is that which commands or forbids an act, imposing no penalty upon transgressors, as the law on hearing Mass. A purely penal law is that which establishes a penalty upon those who have done or omitted something, commanding or forbidding nothing, at least explicitly, as if a law should say: « Whoever shall carry corn out of the province, let him pay one hundred. » Mixed is that which commands or forbids an act, and at the same time establishes a penalty for transgressors. And this in two ways: either copulatively, as if a law should say: « Let no one carry corn out of the province, and whoever shall carry it out, let him pay one hundred, » which can also be expressed in one proposition thus: « I forbid that anyone carry corn out of the province, under penalty of paying one hundred. » Or disjunctively, as if it should say: « Let no one carry corn out of the province; or, if he has carried it out, let him pay one hundred. »

You will ask 1° whether a mixed law or a purely penal law binds under fault to doing or omitting the act, or at least to the penalty or fine.

I answer. 1°. A copulative mixed law binds under fault to doing or omitting the act, because it truly commands or forbids; nor is the penalty added that it may take away the obligation, but rather that it may more efficaciously move to observance.

I answer. 2° that a disjunctive mixed law does not bind determinately to doing or omitting the act, nor determinately to undergoing the penalty, but to the one or the other; so that he who does not will to fulfill the law, but is prepared to undergo the penalty, is free from fault; but he who neither wills to observe the law nor to undergo the penalty sins, because the law posited under disjunction leaves it to the will of subjects to embrace whichever part they will. Parity is in him who vows disjunctively that he will play no more, or, if he play, that he will give twenty asses to the poor: he does not sin if he plays; he would sin, if playing he gave not twenty asses.

To laws of this kind can in a certain manner be referred the constitutions of various Religious Orders, as of the Order of Preachers, which do not bind unto fault, but unto penalty only, and insofar are laws, inasmuch as they bind unto penalty.

[You will say: Penalty cannot be imposed except for fault. Therefore, if the act prescribed disjunctively be omitted without fault, there is not given an obligation of undergoing the penalty.

I answer. I deny the antecedent. The force of law depends entirely upon the will of the legislator, and as he can prescribe a thing great by its nature under grave or only under light [penalty], so he can leave it to the liberty of each one. Therefore, when this seems sufficient and expedient, it is lawful for him to give his subjects the option between doing or omitting the act and undergoing the penalty, if it please them not to observe the law. And this is confirmed by rule 23 of law in Sexto: « Without fault, unless cause subsist, no one is to be punished. » These words, Unless cause subsist, patently adjudicate to the legislator the faculty of decreeing a penalty although fault has not been admitted through transgression of the law.]

I answer. 3°. It seems more probable that a purely penal law, speaking per se, obliges not only to the penalty, but also to doing or omitting the act for which the penalty is imposed.

The reason is, because, according to the common understanding and common mode of speaking, he who says: « Whoever shall do this, shall be punished with death, » is just as if he said, I forbid that this be done, and whoever shall have done it shall be punished with death: whence he prohibits or commands implicitly, though not explicitly; for he imposes so great a penalty only because he wills it to be done or not done, and the will of the superior so intimated holds the force of law and precept.

I said: Speaking per se, because, if the legislator declared that he did not will to oblige under fault to doing or omitting the act, but only to the penalty, as is declared in the prologue of our constitutions and in the constitutions of certain other Orders, the law would not oblige except to the penalty. Similarly, if from the circumstances could be gathered this to be the mind of the legislator, or if the customs of the people and usage received among the timorous so understand and receive the law; for, as is commonly said, custom is the best interpreter of law. This modification moreover can also have place in mixed copulative laws, in which, as by custom the obligation unto fault and unto penalty can be removed, a fortiori, the penalty remaining, the fault can be taken away. But these are not properly laws except in that part wherein they bind unto penalty under fault, because to obligate is of the reason of law. Whence, if it obliged in no part, it would not be properly a law, but a salutary admonition or exhortation, or counsel concerning what would be expedient in the community.

You will ask 2° whether a penal law binds to undergoing the penalty before the sentence of the judge.

The question concerns a latae sententiae penalty; for it is certain that no one is held to undergoing a ferendae sententiae penalty before the sentence of the judge.

I answer. 1°. No penal law latae sententiae binds in the forum of conscience to undergoing, before the sentence of the judge, an active penalty, or one whose execution requires action.

[It is proved 1° by St. Thomas saying, II II, q. 62, a. 3, c: « As to fault, a remedy is applied through punishment, whose infliction pertains to the judge. And therefore, before he has been condemned by the judge, he is not bound to restore more than he received; but after he has been condemned, he is bound to pay the penalty. »]

It is proved 2°. To that acting or to the action which the execution of the penalty requires, the culprit or the judge is held. Not the culprit, because he is not held by the law except to the penalty; but penalty consists in suffering, not in acting. Therefore the judge is held. Therefore before the sentence of the judge he is not held to undergoing it.

It is confirmed. 1° The action which is required for the execution of the penalty is not penalty, but infliction of penalty; otherwise the judge or his minister inflicting the penalty would suffer the penalty. But penal law obliges the culprit only to penalty. Therefore it does not oblige him to inflict it upon himself.

2° A law obliging the culprit to inflict upon himself an active penalty before the sentence of the judge is not accommodated to the condition and frailty of men, since scarcely one of a thousand would you find who observes it.

I answer. 2°. Penal laws latae sententiae can oblige to undergoing a privative penalty before the sentence of the judge. Few however oblige.

The 1st part is proved. The authority of the legislator is not less than that of the judge, if nothing stands in the way. But the judge immediately after sentence passed obliges the culprit to undergo a privative penalty, nor does anything obstruct the authority of the legislator, as it obstructs for active penalty. Therefore.

It is confirmed. Laws imposing censures ecclesiastical ipso facto oblige immediately from the crime committed and before the sentence of the judge, as all concede. Therefore.

The 2nd part is proved; because, besides ecclesiastical censures, scarcely any law can be assigned, civil as well as ecclesiastical, even latae sententiae, which oblige to undergoing a privative penalty before the sentence of the judge; whether because custom understands and receives such laws in no other way, or because by common or particular law it is so provided unto the penalty.

You will say: If laws latae sententiae do not oblige to undergoing before the sentence of the judge, whether active or privative, vainly and uselessly are these clauses added, ipso facto, ipso jure. Therefore.

I answer. I deny both consequences. 1° For of this clause, ipso facto, ipso facto means by sentence pronounced and declared. The sense of this, ipso jure, is by the very disposition of the law, and not by the arbitrament of the judge; because these laws have certain special effects which ferendae sententiae laws have not: 1° Unto this, that the culprit be held to undergo the penalty incurred lata sententia, a condemnatory sentence unto penalty is not required, as in ferendae sententiae laws, but only a declarative sentence of the crime. 2° Because a latae sententiae law after the declaratory sentence is drawn back to the time of the crime committed, so that, if anyone on account of crime be ipso facto deprived of the fruits of a benefice, the declaration of the judge arriving, he must restore the fruits, even those he received after the commission of the crime and before the sentence. Otherwise in ferendae sententiae laws.

Yet I do not deny that, if a law beyond the clause, ipso facto, ipso jure, added others which altogether signified this to be the will of the legislator, that privative penalties be incurred and undergone before the sentence of the judge, e.g., if it should say: « without any other declaration, before every sentence of the judge, [the guilty] are held before God, or in conscience, nor can they previously be absolved, » and the like, it would be more probable that these are incurred immediately, unless it be certainly established by law or custom to the contrary. But nevertheless true is what I said, that such are few, ecclesiastical censures excepted.

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.