The divisions of law

106. Definition. Law is defined by St. Thomas: an ordinance of reason for the common good, promulgated by him who has care of the community.¹ Whatever be the true etymology of the name, law manifestly contains the notion of obligation or of a bond by which the subject of the law is bound, and at the same time the notion of a norm and rule of acting. For law regulates operations by the fact that it induces obligation.

a. Law is called an ordinance, because it consists in a norm or disposition, and one obliging, by which actions are directed to the end. Therefore law is distinguished from counsel, which induces no obligation and need not necessarily proceed from a superior who has authority.

b. Of reason: by this word practical reason is signified, which comprises intellect and will. For although law consists essentially in an act of the will, insofar as it induces obligation, nevertheless the intellect also must concur in establishing it, since it belongs to the intellect to consider whether the law to be made conduces to the end.

c. For the common good: for the end of law is the good of the whole community, which the law directly and immediately regards, and through the common good it is directed mediately to the good of individuals. This good is both spiritual and temporal, namely the whole good of the community.

d. By him who has care of the community: for to make law is an act of superiority and jurisdiction; therefore only he who has the power of ruling a community can impose upon the whole community a norm by which it is to be directed.

e. Promulgated, that is, so published or intimated that it can be known by the subjects. For the will of the subject can be induced only through knowledge to conform itself to the will of the legislator. Hence a law not promulgated, just as a law not known, cannot oblige.

They dispute whether promulgation is more truly said to belong to the essence of law or rather to be its necessary condition, without which it cannot have external efficacy. For the rest, this dispute is more speculative than practical: for each opinion concedes that a law which has not been promulgated does not oblige.

¹ Cf. Summa I-II, q. 90, a. 4.

107. The distinction between law and precept. A twofold precept is distinguished, common and particular. Moreover, between law and a common precept, which by the ancients is called a statute, there is only this distinction: that law is a stable ordinance, while a common precept is transitory. For a common precept is from a prince for the whole community unto the common good, but for a time. But law and a particular precept differ from one another in several ways.

1. They differ by reason of the author: for public authority and the power of jurisdiction are required for establishing a law; for a precept private authority and dominative power suffice: that of a father, husband, master.

2. By reason of the subject: for law is a common ordinance which is given to a community, namely either to all its members or to those who are of the same condition in some community, whether they are many or few in number, as clerics, merchants, etc.; but a precept is given to a private person or to a family.

3. By reason of the end: for law is borne immediately toward the common good; but a precept immediately toward the good of a private person.

4. By reason of place: because law directly affects territory, but a precept directly affects the person; therefore a precept obliges even outside the territory of the one commanding, but law (ordinarily) does not oblige subjects who are outside the territory of the legislator.

5. By reason of duration: for law is a stable ordinance which is not made for a determinate time, but either always endures or at least endures so long until it is revoked; but a precept per se is made for a time.

a. Therefore a law is not extinguished together with the legislator, but endures beyond his death; but a precept per se ceases by the death of the one commanding. Per se, because it can happen that the legislator attributes special stability to the precept of a superior, as sometimes happens in religious orders.

b. Nevertheless the names law, precept, and statute are customarily used indiscriminately in law. Hence, to discern whether some ordinance is a law or a precept, attention must be given not so much to the name as rather to its conditions.

108. On the sanction of law. 1. The sanction of law considered actively is the decree of the legislator by which he proposes good things (rewards) to be obtained for the observance of the law, and evil things (punishments) to be undergone for its violation; considered passively, it signifies the good things themselves proposed for observance of the law and the evil things proposed for violation of the law. Sanction is the complement of law and obligation.

2. There is distinguished an internal sanction, which signifies good or evil things which from the nature of the thing follow the observance or violation of law (tranquillity and remorse of conscience, good or bad reputation, etc.); and an external sanction, which signifies good or evil things which are connected with the observance or violation of law from the disposition of the legislator.

3. Its end is threefold: a. that subjects be efficaciously moved to observance of the law; for the very knowledge of the law and consciousness of obligation (Pflichtbewusstsein) do not sufficiently induce man, as he now is, subject to the allurements of concupiscence, to keeping the law. b. That the moral order be completed by the retribution of reward and restored by the retribution of punishment; for the order of justice requires that reward be repaid to the merit of law observed, and punishment to the demerit of law violated. c. That subjects rebellious against the will of the legislator be subjected to his authority, by the fact that those who refused voluntarily to subject themselves to the law are forced against their will to undergo evil.

Note. Ethics and dogmatics teach of what kind the sanction of divine law is and must be in order that it be sufficient for obtaining the end, and whether it must be of eternal reward and eternal punishment.

109. On moral obligation, the effect of law. 1. Obligation taken broadly is the necessity by which created beings strive through their operations toward their proper ends. This necessity is essentially diverse in rational creatures and in creatures lacking reason: for the latter are led to their ends by determination of nature, but the former must lead themselves to their ends according to norms imposed upon them by law. The former necessity is called physical obligation, the latter moral obligation. Therefore moral obligation is a necessity imposed by law upon rational creatures of doing or omitting something. By this obligation rational creatures are truly bound, yet in such a way that they are not deprived of liberty, but the power is left to them even of departing from the obligation.

2. The supreme principle and source of every obligation which arises from law is God Himself, whence the force of a law truly obliging must proceed either immediately or mediately from God. For the will of a rational creature, independent from other creatures in the pursuit of its end, can be bound efficaciously only by God, the absolute lord of creatures. Therefore Sacred Scripture testifies that every legislative power is from God: "Let every soul be subject to higher powers; for there is no power except from God, and those that are, are ordained by God."¹ It testifies the same concerning individual legislators.²

¹ Rom. 13:1.

² Cf. Matt. 16:19; Prov. 8:15; Eph. 6:1; Eph. 6:5.

110. The chief divisions of law. 1. By reason of state, law is divided into eternal law, which is from eternity in God the legislator alone, and temporal law, which in time is also outside God in creatures.

Law can be considered in a threefold state: in the legislator, in whom it exists through the act of the intellect by which he judges that an action is necessary or useful for the end, and through the act of the will by which he wills it to be observed by subjects; in the subjects, in whom it exists through the act of the intellect by which the command of the superior is received and proposed to the will; in a sign, of which kind are writing or the living voice by which law is exhibited.

2. By reason of the author, law is divided into divine and human law, according as it proceeds immediately from God or from a human legislator.

a. Divine law is divided into natural and positive law; the former is necessarily made by God and promulgated by the light of reason; the latter is freely made by God and promulgated in diverse ways, though externally.

Positive divine law is divided into Mosaic, which God gave through Moses to the Israelite people, and evangelical, which Christ, author of the New Testament, made.

b. Human law is one kind ecclesiastical, another civil, according as it is made by an ecclesiastical legislator or by a secular legislator.

3. According to the diverse matter of the law, there is distinguished a commanding or affirmative law, if it is referred to a good act and to placing it; a prohibiting or negative law, if it is referred to an evil act and to omitting it; a permitting law, if it is referred to an act which is neither commanded nor prohibited but licit; and a penal law, if it sanctions a penalty.

a. Although the force of obliging of affirmative and negative law is the same, nevertheless they have diverse efficacy according to the celebrated axiom: affirmative law obliges always but not for always; but negative law always and for always. For the evil act which negative law prohibits must be omitted at any time; but the good act which affirmative law commands is indeed always commanded, yet it need not be exercised at any moment, but only at the appointed time.

b. It is clear that a permitting law is not properly a law, because it induces no obligation, which is required for the notion of law properly so called. But if it is said to oblige insofar as it prohibits anyone from impeding one who wishes to exercise an act permitted by law, it must be noted that in this sense it pertains to negative and prohibiting law.

4. By reason of obligation it is divided: a. into moral or preceptive law, which obliges only to its own observance; purely penal law, which obliges only to undergoing the penalty; and mixed law, which obliges to both; b. into personal law, which follows the person wandering outside the territory, and local law, which does not follow the person outside the territory.

It is clear that all laws of a particular superior are local, because he himself cannot exercise power outside the territory; therefore his laws cannot follow a subject outside the territory. On the contrary, all laws of a universal superior are personal in this sense, that they oblige subjects everywhere, unless by his will they have been promulgated only in certain places: for law does not oblige where it has not been promulgated.

5. Negative law by reason of effect is either simply prohibiting, which renders the act evil and illicit, or prohibiting and at the same time irritating, which renders the act not only illicit, but also invalid.

Laws are divine or human.

Divine law is either natural or positive. The natural law is promulgated in the rational nature of man, and is a participation in human reason of the eternal law of God, which bids us observe right order, and forbids its disturbance. Positive divine law is made known by revelation.

Human law is ecclesiastical when made by the authority of the Church; municipal or civil when it is the ordinance of the civil ruler. The term civil is frequently restricted to the Roman civil law.

Other divisions of law and their application will be clear from the chapters which follow. 1.

I. Laws are divided by authors in many ways. Namely:

1. By reason of duration, into eternal law and temporal laws. The former is that which exists from eternity in the divine mind. The others have been made in time.

2. By reason of the immediate author, into divine and human laws. Human laws are ecclesiastical or civil.

3. By reason of foundation and promulgation, into natural and positive law. The former is founded in human nature and is promulgated by the natural light of reason. The latter is not founded in human nature and is promulgated by some external sign.

4. By reason of obligation, into moral, penal, and mixed law, according as it obliges either to the act or omission alone, or to the penalty alone, or to the act and the penalty (St. Alphonsus, Homo Apostolicus, tr. 2, n. 14).

5. By reason of acts, into prescribing, prohibiting, permitting, punishing, and invalidating law. A prescribing law, which is also called affirmative, commands an act to be placed; a prohibiting or negative law forbids placing an act.¹ A permitting law grants the agent a moral faculty or right of acting, and obliges others not to impede the agent (n. 62). A punishing law establishes the penalty to be undergone on account of transgression of the law. Finally, an invalidating law renders the act invalid.

We shall have regard to this division in its own place (n. 150 sq.). But for our present purpose the division already indicated, but now to be assigned again and extended, is more practical.

¹ Here note the saying: an affirmative law obliges always, but not for always; a negative law obliges always and for always.

II. Law is divided into eternal and temporal. Temporal law is distinguished into natural and positive. Positive law is divine or human; human law is ecclesiastical or civil (St. Alphonsus, Homo Apostolicus, tr. 2, n. 1). We shall speak of each.

Division.—According as the immediate lawgiver is God or man, laws are divine or human. Divine laws are threefold: (a) the eternal law is the ordinance of the divine mind which from eternity has directed the motions and actions of all creatures for the common good of the universe; (b) the natural law is the light of man’s reason as an impression and reflection of the eternal law; (c) the positive divine law is that which God of His free will has added to the natural law, viz., the Mosaic law under the Old Testament and the law of the Gospel under the New Testament.

Human laws are ecclesiastical or civil according to the authority from which they originate.

Division.—Since Natural Law is the reflection of the eternal plan of Divine Wisdom in the reason of man, we cannot distinguish different species of it according to difference of lawgivers or subjects. The objects regulated are, however, different; and hence we may distinguish various precepts of Natural Law.

(a) According to the difference of persons to whom natural duties are owed, there are natural laws concerning God (e.g., that God must be honored), natural laws concerning self (e.g., that one must not commit suicide), and natural laws concerning the neighbor (e.g., that injustice must not be done).

(b) According to the difference of natural inclinations in man, there are, first, natural laws common to him with all beings (e.g., the law of self-preservation, and hence it is a natural duty of man to take sleep, food, drink, remedies, etc., as necessary for life); secondly, natural laws common to him with all sentient beings or animals (e.g., the law of preservation of the species, and hence it is a natural duty of man to rear and provide for his children); thirdly, natural laws proper to man as a rational being (e.g., the laws that he should cultivate his powers of mind and will, and hence it is a natural duty of man to further religion and education, and to organize into societies and to respect the rights of others).

According to their necessity for the primary or the secondary end of a natural inclination, the laws of nature are divided into primary and secondary. (a) The primary end of a natural inclination is the conservation of a natural good; and so it is a primary law of nature that man should take the food, drink, sleep and exercise necessary for life, and that he should avoid poison or other things that cause death. (b) The secondary end of a natural inclination is the betterment of a natural good, or its easier conservation; thus, it is a secondary law of nature that man should use those kinds of food or drink that promote his health, that he should be careful about his diet, practise moderation, etc.

Primary and secondary laws of nature are also explained as follows: (a) a primary law is one that expresses the principal purpose of a natural inclination (e.g., social good, that is, the begetting and rearing of children, is the primary law of the married state); (b) the secondary law is one that expresses a less important purpose of a natural inclination. For example, individual good (i.e., companionship, mutual assistance, the practice of virtue and freedom from temptation) is the secondary purpose to be promoted in the married state.

Precepts of the Natural Law may be divided also on account of the different relations they have to one another or to our knowledge.

(a) According to the priority they have among themselves, the laws of nature are divided into the first principle and the secondary principles. The first principle, which is general, which depends on no other, and which is the root of all the others, is: “Good must be done, evil omitted.” The secondary principles are particular, and they apply this general principle to the natural inclinations of man mentioned above, which reason indicates as ends of action—i.e., as goods to be sought.

(b) According to the priority they have with respect to our knowledge of them, the laws of nature are divided, first, into axiomatic precepts, which are evident and are granted by all (e.g., that good is to be done, that one should follow reason, that one should not do to others what one does not wish done to oneself etc.), and, secondly, into inferred precepts (e.g., that one should not steal from others, as one does not wish others to steal from oneself).

The inferred precepts are also of two kinds, namely, general and particular. (a) The general precepts are those that are deduced immediately from the axioms as universal conclusions (e.g., the commandments of the Decalogue, the principle that one should return what one borrowed). (b) The particular precepts are those that are deduced only remotely from the axioms as conclusions about cases in which many particular conditions and circumstances are involved (e.g., many conclusions about contracts, the conclusion that a loan is to be paid in some particular way, at this particular time, etc.).

According to the invariability or permanence of their subject-matter, the laws of nature are of two kinds, namely, necessary and contingent. (a) The necessary laws are those whose matter always bears the same relation of essential conformity to or difformity from reason. For example, the command, “Thou shalt not take the name of the Lord in vain,” is necessary, because God remains always worthy of honor, and there is no conceivable or possible case in which it could become useful to speak of Him with dishonor. (b) The contingent laws of nature are those whose matter generally, but not always, bears the same essential relation to right reason. For example, the command, “Thou shalt not kill,” is contingent, because, though man generally remains worthy of having his life respected by others, there are cases when it might be injurious to the common welfare, and hence to natural law, that an individual be permitted to live, as when he has committed and been convicted of a capital crime.

According to the manner in which they oblige, the laws of nature are twofold, namely, absolute and relative. (a) Absolute laws are those that oblige for every case and condition, because the matter with which they are concerned is intrinsically good or bad in every instance (e.g., the laws forbidding marriage between parent and child, the law against polyandry). (b) Relative laws of nature are those that oblige except in case of a most grave public necessity, because the matter with which they are concerned is generally and of its very nature becoming or unbecoming (e.g., the laws forbidding marriage between brother and sister, the law forbidding polygamy).

According to the manner in which the obligation is contracted, laws of nature are of two kinds, viz., those whose obligatory force depends entirely on the nature of things (e.g., the law that God must be honored), and those whose obligatory force depends upon, an act of the will of man freely undertaking an obligation, which the nature of things then demands that he fulfill (e.g., the laws that those who have made vows, oaths, contracts, etc., should live up to that which they have freely promised).

Division.—There are four historical states of man with reference to his Last End, and to each of these correspond positive divine laws.

(a) The state of Original Innocence is that which existed in Paradise before the Fall. Man had been raised to the supernatural state, and hence he was obliged to the supernatural acts of faith, hope, charity, etc.; he was subject to God, both as to body and soul, and hence he was obliged to offer some kind of external sacrifice; he was sanctified immediately by God, and hence was not bound to the use of any sacraments; but he was still in a state of probation, and was subject to various special regulations, such as the commands to avoid the fruit of a certain tree, to labor in Eden, etc.

(b) The state of the Law of Nature is that which existed from the Fall to the giving of the written law through Moses. It is called the state of the Law of Nature, not in the sense that there were no supernatural precepts then in force, but in the sense that there were as yet no written precepts. In that period man knew the Natural Law, not from commandments written on tablets of stone, but from the law of reason inscribed in his heart; he knew the supernatural precepts, not from scriptures given him by God, but from tradition or special divine inspiration. In addition to the inner acts of supernatural worship and faith in the Messiah to come and the outer sacrifices, there were during this state certain rites of purification, or sacraments, by which fallen man was purified from sin. A special precept of the patriarchial times was the prohibition made to Noe against the eating of flesh with blood in it.

(c) The state of the Mosaic Law is that which existed from the giving of the law on Sinai until the giving of the New Testament law by Christ.

(d) The state of the Christian Law, or of the New Law, is that which began with Christ and the Apostles and will continue till the end of the world.

(Summa Theologica, I-II, qq. 95-97.)

Definition.—Since human perversity often needs a check in regulations that are not expressly contained in the Natural or in the Divine Law, other laws must be made by society, drawn from those higher laws as conclusions or added to them as determinations, in order to meet special circumstances and necessities.

Division of Human Laws.-Human laws are variously divided.

(a) According to the difference of legislators, laws are either ecclesiastical or civil.

b) According to their mode of derivation from the Natural Law, laws belong either to the law of nations (jus gentium) or to civil law. To the jus gentium belong those laws which are derived from the Natural Law as conclusions from premises, e.g., the right to private property without which men cannot live peacefully in society. To civil law belongs whatever is derived from Natural Law by way of positive determination by a legislator; e.g., Natural Law dictates that the evil-doer be punished; but that the punishment take a particular form, imprisonment, exile, death, is a determination depending upon the will of the legislator.

The jus gentium is not international law which derives its force and sanction from the free will of the legislator. The law of nations is common to all men and derives its force from the conviction of men that such a law is demanded for the good of mankind. It is not a secondary precept of the Natural Law which is derived from the primary precepts necessarily. Rather it is based upon a contingent set of circumstances; it does not spring from man’s nature absolutely considered, but from the way in which man acts and reacts in his society.

(c) According to the difference of their objects, laws are either affirmative (i.e., preceptive) or negative (i.e., prohibitive). An affirmative law obliges always, but not for every occasion; a negative law obliges always, and for every occasion. Example: The Third and Fourth Commandments are always in force, but it is not necessary to elicit a positive act of compliance at every instant. The other Commandments, which are negative, are not only in force always, but it is necessary at every instant to omit what they forbid.

(d) According to the obligation which they impose, laws are either moral, penal, or moral-penal. Moral laws oblige under pain of sin, penal laws under pain of punishment, moral-penal laws under pain of both.

(e) According to their inclusiveness, laws are either personal or territorial. The former affect the person for whom the law is made, and oblige him even when he is outside the territory of the lawgiver. The latter affect the territory, and hence do not oblige a subject when he is outside the territory affected by the law.

(f) According to their effect, prohibitive laws are either merely prohibitive or irritant. The former make what is forbidden illegal, the latter make it also void.

Qualities.—The objects or content of human law must be of such a character: (a) that they do not conflict with the Natural or the Divine Law; (b) that they be beneficial to the community for which they are made.

Laws fail to be of public benefit in such cases as the following: (a) if they are made without a broad view of the public good, which has regard for different classes of people and various interests, and which provides for the future as well as for the present; (b) if, losing sight of the fact that the majority are not perfect in virtue, the lawgivers require so much that the law falls into contempt, and graver evils result than would have happened otherwise. Hence, it is advisable that human laws confine their prohibitions to graver misdeeds, especially those that are harmful to others and to society, and restrict their commands to such good acts as promote the common weal. Multiplicity of laws, excessive penalties for minor offenses, cruel and unusual sanctions, lead to lawlessness.

Human laws should not prescribe what is too difficult.

(a) They should not prescribe heroic virtue, unless the common safety demands it, or a subject has voluntarily obliged himself to it. Example: Soldiers in war and pastors in time of pestilence must expose themselves to danger of death; but for ordinary occasions the law should not oblige one to risk one’s life or other great good.

(b) They should not prescribe agreement with the mind of the legislator or a virtuous performance of what is prescribed, unless the thing ordered itself demands this. Examples: The law of annual Confession and of the Easter Communion requires, not only that these Sacraments be received, but that they be received worthily, for an unworthy Confession is no Sacrament, and an unworthy Communion does not satisfy the command of Christ, of which the Church command is but a determination. On the other hand, the Lenten fast observed by one who is not in the state of grace is an act good in itself and satisfies the law. He who hears Mass on a holyday, not knowing that it is a holyday, satisfies the obligation, though he had no intention of fulfilling it.

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.

To n. 213. ON OBSERVANCE OF LAW As to substance and as to mode

1. Since among precepts of law some are affirmative, which command what is honorable, and others are negative, which prohibit evil, the question concerning observance of law, as to substance and as to the mode of virtue, indeed has place in affirmative precepts; but in negative ones it scarcely has place.

For positive precepts must be fulfilled by a positive act. But negative precepts, without any act, can of themselves be fulfilled, as far as is from the form of the precept, because through the mere negation of the prohibited act a man is conformed to the law. Yet they can further be positively fulfilled through the will of not doing what is prohibited. But in omission as such, the mode of virtue is not found, although it can be in the positive will of abstaining from a depraved act. But of itself this positive will is not necessary for fulfilling a negative precept, or for not sinning against it. Decline from evil.

2. Therefore it is one thing to observe the law, another thing not to transgress the law. For he who does not transgress the law does not always observe the law, as is clear also in him who acts against an affirmative law from invincible ignorance, or from impeded use of reason.

3. Now the observance of law is distinguished in two ways, as to substance and as to mode. This mode generally is nothing other than the mode of virtue.

4. Any law, whether human or natural, is to be observed as to substance. For any law commanding an act obliges to the substance of the act. Yet law does not always oblige also to the mode of the act. For human laws regularly command only the substance of the act, not also the mode, unless the mode is intrinsic to the act commanded. And thus he who, on a day of fast and abstinence, fasts and observes abstinence not for mortification and penance, or for temperance and restraint of gluttony, but on the contrary from gluttony, so that on the following day he can eat more, and because fish please him more than flesh, observes the law, and certainly does not violate it. "It must be said," says Suarez de Leg. l. 3, C. 29, n. 6, "that human law is sufficiently fulfilled through the act commanded, according to its substance, even if it is not simply morally good, nor done with an honorable intention."

5. The added limitation is: unless the mode is intrinsic to the act commanded; for evidently, if it is intrinsic to that act, it enters its substance, and consequently the law is to be observed as to substance and mode; as is to be seen in the precept of prayer, in the precepts of annual Confession and Easter Communion. For in the former there enters intention and at least some attention implicit in it; in the latter true interior sorrow for sins is required as regards Confession, and the state of grace and right intention as regards Communion.

6. The restriction likewise was made as regards human laws. For evidently natural law commands an act simply good, and therefore its observance embraces substance and mode of the act. Wherefore natural law also embraces the mode of virtue to be observed, wherever it broadly extends; for from natural law, good is from an integral cause, evil from any defect whatever. Fittingly Suarez: "Natural right differs from human right; for human right can be observed through an evil act in such a way that it is violated in no part; because that malice which is joined to such an act often is not against any human precept, but against the natural: but truly natural right itself, which commands one to make an honorable act, also commands that it be done studiously, because this very thing is from natural reason... and therefore as often as a natural precept is fulfilled through an evil act, natural right itself is violated." De Leg. l. 2, C. 10, n. 13.

7. Nor does it avail to object that even human law commands only a good act and an act of virtue. -

For human law indeed commands an act good of itself, or one which of itself can be done well, yet it does not command all the modes necessary that it be done well. Wherefore he who does all that human law commands, and with all the external circumstances which it commands, although he does it with a depraved intention, does not do otherwise than he ought to do by force of that human law, although he does otherwise than another divine law commands, and therefore he sins not against human law, but against divine and natural law. Likewise human law commanding an act determines the act in a certain species of virtues. But this does not import that that species of virtue ought to be intended by the one operating, or that that act be done without any admixture of malice; but it imports only that the law commands an act of some singular virtue, because laws intend to make men honorable in the genus of all virtues. But this motive of the precept of the law is not the precept itself or that which is commanded, and for observing the law it suffices to do what is commanded.

8. But although natural right commands each, substance and mode, good and well, yet this is not so to be understood that he who does not observe the mode also does not observe the substance of the law. For this is true only when an evil mode corrupts the whole substance of the act. And thus he who gives alms to a poor man impelled by vain glory, or with some interior displeasure, observes the precept of almsgiving as to substance, although he sins as to mode. But he who gives alms to a poor man moved only from the depraved end of attracting him to evil, e.g., to denying the Catholic faith and professing the false faith of Protestants, does not observe the natural precept of charity and almsgiving, neither as to mode nor as to the substance itself; on the contrary he sins gravely by that alms given against charity, by the sin of scandal and cooperation toward grave sin against faith. Although in this case he now does not transgress the precept of almsgiving, nevertheless he does not observe the precept of almsgiving. Cf. Salmant. de Leg. C. 2, n. 148.

9. From these things which precede it is clear what mode is in the observance of law. It is namely, as was said at the beginning, the mode of virtue. -

Let us now declare this mode of virtue, and see the various modes of virtue in the observance of law; whether at least some one of them is required for the observance of any law, and what sort.

10. Moreover the modes of virtue of which we speak are either the mode of some special virtue, or the modes of virtue in general. That special virtue here can be no other than either that virtue to which all other virtues are ordered, and which is the end of the whole law, which is charity, or that virtue which enters by its nature the precept of any virtue, and which is obedience.

11. As regards charity, the Angelic Doctor, 1. 2, q. 100, a. 10, raises the question: "whether the mode of charity falls under the precept of divine law"; and responds: "It must be said... Some have said absolutely that the mode of charity is under precept.... But others have said that the mode of charity altogether does not fall under precept. Each has said what is true in some respect. -

For an act of charity can be considered in two ways. In one way, according as it is a certain act per se. And in this way it falls under the precept of the law which is specially given concerning this: You shall love your Lord, and You shall love your neighbor. And as regards this the first have said what is true.... In another way the act of charity can be considered according as it is the mode of the acts of other virtues, that is, according as the acts of other virtues are ordered to charity, which is the end of the precept.... And in this way what the second have said is true, that the mode of charity does not fall under precept: this is said, that in this precept: Honor your father, it is not included that the father be honored from charity, but only that the father be honored. Hence he who honors his father, although he does not have charity, is not made a transgressor of this precept, although he is a transgressor of the precept which concerns the act of charity, on account of which transgression he merits punishment."

12. But as the mode of charity is not required for the observance of law, so also the mode of obedience is not required, as will soon be explained more by declaring first the general mode of virtue.

13. And these things concerning the mode of special virtue. Let us now come to the mode of virtue in general. The Angelic Doctor, according to Aristotle, numbers only a threefold mode of virtue, namely 1. that someone operate knowingly; 2. that someone operate willingly or choosing, and choosing on account of this;

3. that he have and operate firmly and immovably, 1. 2, q. 100, a. 9, namely from a rooted habit. We can immediately omit this last mode of operating from habit. For no law, whether natural or positive, whether divine or human, commands this mode, and law obliges only to that which it commands. Besides, every law obliges from the beginning, namely before a habit is had. And thus the Angelic Doctor says: "as regards this, the mode of virtue does not fall under the precept either of divine law or of human law; for neither by man nor by God is he punished as a transgressor of the precept who furnishes the honor due to parents, although he does not have the habit of piety."

14. Hence it follows that it is not necessary for the observance of law to act delightfully, according as delight follows habit. For delight can regard the very observance of law, insofar as, e.g., notwithstanding the obliging law, someone would wish not to observe the law if he did not fear penalty or another harm; this mode includes intrinsic repugnance with the precept, and therefore is intrinsically evil and against natural law: for it excludes the will of observing the law, and on the contrary includes the will of not observing it. St. Thomas, 1. 2, q. 100, a. 9 ad 3.

15. But the two preceding modes of Aristotle and St. Thomas, for the sake of clarity, we distinguish into various conditions which they contain, required for the honesty of the act. Hence we say that the mode of virtue in the observance of law is only fourfold, namely that the law be observed: 1. from knowledge, will, liberty; 2. from intention of intrinsic honesty; 3. from intention of the end; 4. from all other circumstances. Another possible mode of virtue is not given. For the mode of virtue can be only on the part of the agent and on the part of the act; from these two heads no other assignable modes of virtue exist. The state of grace, which perhaps can be objected, pertains not to the observance of law, of which we are treating, but to merit and to supernatural merit. Likewise faith regards not the observance of law, but the supernaturality of the act.

16. Now as regards the first mode: to act from knowledge, will, liberty, that is, knowingly, willingly, freely to act, this pertains to the observance of both human and divine law. For this mode, that is, to act with knowledge of the work voluntarily and freely, pertains to the very essence and substance of a human act; and therefore that mode regards the very substance of the precept of law to be fulfilled. "The reason is," says Busembaum and after him St. Alphonsus, l. 1, n. 165, "because since law is given to men, not to beasts, and therefore is to be fulfilled in a human mode, hence the fulfillment of every precept, whether human or divine, ought to be a human act joined with liberty and will of the one operating, that is, that he will or intend to do this which is commanded, e.g., to hear Mass, to fast, etc.... Hence he who heard Mass, fasted, etc., compelled altogether violently, did not satisfy; for it was not a human act by defect of the voluntary.... Nor does he satisfy who goes to Mass only to feed his eyes, to speak with another, or to wait for a friend." The opinion of the Angelic Doctor is the same; he says, 1. 2, q. 100, a. 9, that the first mode of virtue, namely that someone operate knowingly, according to the Philosopher, "is judged both by divine law and by human law." Hence the same Angelic Doctor concludes, "according to ignorance some things are judged toward punishment or toward pardon both according to human law and according to divine law." For ignorance removes the voluntary and sin.

17. That knowingly evidently also includes willingly, namely knowing and willing that which someone operates. Knowing and willing that, not only according to itself, but knowing and willing it as commanded. Otherwise there is not truly observance of law, which ought to be moral and an effect of law, but only material and per accidens conformity of the act with the law, as if someone knowingly and willingly gives alms, ignorant of the precept concerning it. This ignorance of the precept indeed suffices for not sinning directly against the precept, if it is invincible. Yet with it existing, there is not had moral and formal observance of the law. From the precept there arises an obligation of knowing it, because otherwise it cannot be morally observed. Hence the Angelic Doctor says that he who, ignorant, does an act which is ordered by law, does the commanded work by chance and per accidens. But the precept obliges that it be done per se and from intention, and therefore obliges one to have knowledge of it and to will its observance.

18. But there is need to will to do what is commanded; but not because it is commanded, namely from the motive of obedience. For this is not necessary for fulfilling the precept, because neither is this commanded in the law itself, nor is there any reason which obliges to this. - But it is objected that he who unwillingly does the commanded act is not held to do it again. And thus, after restitution has been made by a debtor altogether unwilling, the debtor is not held to restore again, which is a sign that he fulfilled the law. But in this example and in similar others, that natural precept of restitution is not observed; rather, he sins gravely against it; and the precept no longer obliges, not because it was observed, but because the matter was removed by the thing itself, with the debt extinguished.

19. A graver difficulty is in him who knowingly and willingly hears Mass and hears it attentively and devoutly, yet is ignorant of its precept. He indeed truly hears Mass, and thus sufficiently observes the precept, and is excused from hearing another Mass. It can indeed be said, and in fact is said by Suarez, that that pious will "virtually is the will of fulfilling the precept, which concerns the act itself commanded, and is judged to arise from the general will which each one has of satisfying his obligations: for morally any prudent man is judged to will this first in his honorable and religious actions. For this reason, one ignorant or not adverting that it is a feast day, voluntarily hearing Mass as he is accustomed, fulfills the precept, so that he is not held to hear Mass again when he understands or remembers that it is a feast day." de Relig. t. 2, l. 4, C. 26, n. 6.

20. But another difficulty is far graver in him who on a feast day knowingly and willingly hears Mass devoutly, with the purpose of hearing it from devotion and not from precept. - There are several who hold that this one does not satisfy the precept, and ought to hear another Mass. For that will is not the will of fulfilling the precept, and therefore through that action the precept is not fulfilled. For fulfillment of the precept ought to be voluntary. Yet the common opinion holds altogether the contrary. The reason is that in reality he voluntarily did all that which was commanded in a human mode. And although the fulfillment itself of the precept, as it is a certain quasi-relation or adequation between the action and the precept, is not willed, but follows materially, nevertheless it cannot be impeded by the will of the one operating, even if he does not wish by that action to fulfill the precept.

But if in reality he does not hear another Mass, he is held to conform his will explicitly or implicitly with the precept, namely by willing to satisfy it by the prior hearing. For he is held not to resist the precept. Hence when afterward he wills not to hear another Mass, in order not to incur fault, it is necessary that he at least understand that he has satisfied the precept, so that he wills to be content with that satisfaction; because the natural law itself obliges one not to have affection contrary to the precept of a superior.

21. Wherefore it is necessary to distinguish the observance of a precept as to the substance of the exterior human act and as to the mode of interior affection, due by the nature of the thing to such action, with the precept supposed. As to the substance of the exterior act of the precept, it is true that someone fulfills a human precept by the very fact that, e.g., in a human mode and attentively he hears Mass, however much he then may not wish to fulfill the precept. But with that resistance of the will standing concerning the fulfillment of the precept, the precept is not completely fulfilled as regards the affection due by natural right to the precept, which at least requires that the subject not have affection contrary to the obligation of the precept. This mode indeed does not fall directly under the human precept, nor is it its matter, but follows from natural law and the general obligation of obedience. Hence, if afterward someone did not wish to hear Mass again, and at the same time persevered in the will of not fulfilling the precept through the prior hearing of Mass, he would sin by internal affection against that precept, but not by an exterior transgression of it. Hence he would not be held to hear another Mass, but only the obligation would be present that that prior hearing, as fulfilling the precept, not remain involuntary, but become voluntary, at least by judging now that he has satisfied the precept. And thus Busembaum and St. Alphonsus, l. 1, n. 164, say: "One hearing the sacred liturgy on a feast day which he knows to be the last, or, if it is not the last, intending to hear no other, although he intended not to satisfy, nevertheless truly satisfies the precept concerning hearing Mass; although he sinned against another precept, by which one is held to be subject to the legislator." - And in this sense observance of law, not only natural but also human, in order that it be complete, needs someone knowingly and willingly to operate that which is commanded.

22. As regards the second mode of observance of law, from intention of intrinsic honesty, St. Thomas, l. c., openly excludes this from observance of human law and says that it pertains only to divine law. Hence from the Angelic Doctor, only to divine law does it pertain to will to do evil and not do it, to do good but not on account of good. Behold the reason from which the Angelic Doctor proceeds to the said conclusion: "It must be said that a precept of law has coercive force. Therefore that falls directly under the precept of law to which the law coerces. But the coercion of law is through fear of penalty.... For that properly falls under the precept of law for which the penalty of the law is inflicted. But divine law and human law stand differently for establishing penalty. For the penalty of law is inflicted only for those things concerning which the legislator has to judge; because law punishes from judgment. But man, who is the legislator of human law, has to judge only concerning exterior acts, because men see those things which appear...; but it belongs to God alone, who is the bearer of divine law, to judge concerning the interior movements of wills, according to that saying: God searching hearts and reins." With this fundamental doctrine established, the holy Doctor, then speaking concerning the second mode of virtue in the observance of law, namely that, according to the Philosopher, someone operate willingly or choosing and choosing on account of this, that is, that someone will and choose good, and operate it on account of good, says that in this "a double interior movement is imported, namely of will and of intention," of will, WILLINGLY, of intention, CHOOSING. "And human law does not judge these two, but only divine law; for human law does not punish him who wills to kill and does not kill; but divine law punishes, according to that saying: He who is angry with his brother shall be liable to judgment." And consequently the same is true of the will which wills good and operates, but not on account of good, on account of its honesty. And thus a soldier who fights bravely in war, and kills the enemy only from hatred, indeed observes human law as to substance, but does not observe natural and divine law as to mode. Hence while he receives reward from the Prince, he is condemned by God to eternal fire.

23. Wherefore in this mode the precept is not truly fulfilled in the internal forum before God; but before men, and in the external forum, it is fulfilled for escaping penalty, provided the act commanded is done as to substance. If excommunication were present against one not fasting, he who fasts by force and compulsion alone, who is violently deprived of food, since he does not abstain from food voluntarily, does not fulfill the law; yet he would not incur excommunication, because this would not be incurred, in the case, unless the effect followed. But the law in the case as regards the external effect or substance is fulfilled, or at least is not violated. But it would be otherwise if the excommunication were against one not praying and not reciting the canonical hours, if someone read them only for learning the Latin language; for then he would not pray, and the precept concerns praying, and therefore in that case he would not fulfill the precept and would incur excommunication.

24. As regards the third mode: acting from intention of the end of the law, this mode likewise is not necessary as regards observance of human law. "Law," says Suarez de Leg. l. 3, C. 29, n. 7, "obliges only to that which it commands; but it commands only the matter into which it falls and not the end; therefore it obliges to the matter and not to the end. Therefore, if the matter is given to execution, the law is observed, whatever may be sinned from another source. The last antecedent is proved, because only that is commanded which in the law is expressed in the mode of command; but human law does not command that this be done for that, but that this be done. But if sometimes the end of the law is expressed in the law, it is not in the mode of the object of the law, but only in the mode of reason or motive on account of which the mode is commanded, etc." Hence the saying: the end of the law does not fall under the law, the reason of the law is not law. And the law will still have to be observed, although that end in the particular case is not obtained, or its reason does not exist.

25. But as regards natural law, this obliges altogether to the end, to the ultimate end, since its foundation and reason is the end itself to which all human actions are to be directed, namely God. To the point, the Angelic Doctor: "The goodness of the will depends on the intention of the end: but the ultimate end of the human will is the highest good, which is God. Therefore it is required for the goodness of the human will that it be ordered to the highest good." 1. 2, q. 19, a. 9.

"The whole that man is, and that he can and has, is to be ordered to God." 1. 2, q. 22, a. 4 ad 3. But it is enough to direct those human actions to God virtually on the part of the work, or by the very act exercised, namely by acting on account of the end of some virtue, or what is honorable and consonant with rational nature; for such an act from its intrinsic nature tends to the glory of God. Fittingly again St. Thomas: "Whenever someone wills those things which are for the end, he wills the end by the same act; yet not conversely." 1. 2, q. 8, a. 3 ad 2. "He who, on the contrary, does an evil act not referable to God, does not preserve the honor of God which is owed to the ultimate end." 1. 2, q. 21, a. 4.

26. As regards the fourth mode of virtue, from all other circumstances of the act, the same must be said as concerning the end of the law: human law and generally positive law does not oblige to this mode of virtue, but natural law does oblige. And thus he satisfies the law who, while he hears Mass, consents to a thought of vain complacency, and he who, while confessing his sins, lies about something altogether impertinent to Confession. But natural law altogether obliges also to this mode of virtue. For natural law obliges to an act simply good, namely that it be good from its whole formal object, on account of an honorable motive. Moreover under the material object all circumstances of the object and act and also of the agent are comprehended. But no one operates intending toward honesty unless he operates with due circumstances. Wherefore the mode of virtue comprehends also all due circumstances. Therefore natural law not only obliges that someone simply, i.e., as regards all things, knowingly and willingly operate good, but also that he operate that good on account of honesty; in which mode of operating the mode of virtue is simply contained. And although even a natural precept can be observed through an act good from its genus and evil from some circumstance, nevertheless the whole natural right is not then observed; for this also prohibits that evil, whether it prohibits that evil circumstance by the same precept, as if someone prays attentively and devoutly but not with due exterior reverence; or whether it prohibits the aforesaid evil circumstance by another precept, as if someone fulfills the precept of almsgiving not without vain glory, which is not against charity and mercy, but against humility. Cf. Suarez de Legibus l. 2, C. 10.; l. 3, C. 29.

27. Therefore the general natural law, or as regards the whole natural right, is to be observed both as to substance and as to mode, because from natural law good is to be done and evil avoided. But the former is from an integral cause, the latter from any defect whatever, and therefore also from evil in any mode whatever. Human law, on the contrary, is regularly to be observed only as to the substance of the act commanded, not also as to mode, since it is not commanded; unless the mode is intrinsic to the act itself commanded. Moreover to observe the law as to substance is to fulfill by a human act the very thing commanded by the law, although without attending to any intrinsic honesty of the act, nor consequently by willing or intending it; but to observe the law as to mode is to do the good commanded by the law and to do this good well simply.

28. The common doctrine concerning the observance of law has been set forth, with the Angelic and Eximious doctors and also St. Alphonsus Maria de Liguori going before. But, as is not rare, in a moral matter contradictors are not lacking. Among others La-Croix openly denies, l. 1, n. 695, that it is universally true that the observance of law ought to proceed from knowledge, will, liberty. To prove his opinion he brings forward the example of a drunk man. "A drunk man," he says, "is held by the precept of fast.... Therefore by not eating in reality he fulfills it, since in reality he fasts." - The drunk man, although destitute of the use of reason and liberty, is indeed held by the precept of fast; because that law subjects to itself all habitually possessed of reason. Therefore by not eating in reality he fulfills it, since in reality he fasts; indeed he fulfills. But what does he fulfill? He indeed fulfills fast. But certainly he does not fulfill the law of fast, from which he is also excused through that state of perfect drunkenness, so that even by eating he does not sin. Wherefore just as by eating he does not properly and formally transgress the law, so also by not eating he does not properly and formally observe the law.

29. La-Croix adds another example of a thief, who even in drunkenness is held to restore. Therefore if he restores in drunkenness, he observes the law of justice. For justice commanded this. It is indeed most true that a thief even drunk is obliged to restitution. Yet one restoring in the state of perfect drunkenness indeed gives to another what he owes to him and what justice commanded, but he does not properly and formally fulfill the precept of the virtue of justice, just as he would not properly and formally transgress if, instead of giving what he owes, he himself took another's thing.

30. Then passing to reasons, La-Croix insists, saying: The virtue from whose motive the precept is placed does not oblige to an act proceeding from the motive of its own honesty. -

It is indeed so; it does not oblige to an act proceeding from the motive of its own honesty, but it does oblige to a human act. This is the object of virtue and of precept; without a human act, and consequently without knowledge, will, and liberty, neither can virtue be exercised, nor can the precept of virtue be observed.

31. Aptly Aristotle, Magna Moralia, l. 1, c. 34, § 23: "When, therefore, is a thing just, and when not? Namely, to put it briefly, when someone has performed it purposely and spontaneously, and when he has known both against whom, and to whom, and for what cause, then he does just things.

Likewise and similarly he also will be unjust, who has known both against whom, and to whom, and for what cause he has offended. But when, knowing none of these things, he nevertheless has committed something unjust, then he is not unjust, but unfortunate. For if he has killed his father, thinking himself to kill an enemy, he indeed committed something unjust, and although he has inflicted injury on no one, nevertheless he acted unhappily."

32. La-Croix still presses, saying: it is not necessary that the observance of law be a good act; therefore neither is it necessary, speaking per se, that it be a voluntary and free act. We concede that it is not necessary that the observance of law be a good act, i.e., simply good; but it is altogether necessary per se that the observance of law be a human act, and therefore from knowledge, from will, from liberty. Otherwise neither observance of law, nor the law itself, could exist; unless we wish to say not only that a drunken man, by not eating, observes the law of fasting, but also that a little ass, from which food is withdrawn, observes the law of fasting.

33. La-Croix evades this response, explicitly affirming that for the observance of law a human act is not indeed required, but that an act of a man, who is bound by such a law, is sufficient. But the contrary is true; for then it would certainly follow that a sick man observes the law of fasting, who, so long as compelled by sickness he does not eat, nevertheless with his whole will resists that law of fasting. But this, a little before, is affirmed by La-Croix himself altogether to remove observance of law from the middle. These are his words: "That a precept may be fulfilled, there ought not to be present a will positively contrary to the precept and coerced." Therefore it is not true to say: for observing a law "an act of a man, who is bound by such a law, is sufficient."

34. And La-Croix affirms this again and again, putting an end to the question by the repeated assertion: For the observance of law a free act is not required. Once that which is commanded has been posited, the observance of the precept is had. And he adds the reason: since a will of fulfilling or satisfying is not required; and he refers himself to the preceding number, saying: as was said in n. 692. But one thing is that a will of satisfying the law is not required; another thing is that a will of doing what the law commands is not required. And this is expressly affirmed in that same cited number 692, in which there is nothing except the doctrine of Busembaum, who says that law commands the free execution of the work. Free: therefore from knowledge, from will, from liberty.

35. With these points premised, it is easy to resolve the following case. Sabbas, Abbot of the monastery, on a certain day commands, in virtue of holy obedience, that from the ninth hour until midday rigorous silence be observed by all the monks, and that all remain in their own cell during that time, with permission afterward granted to go out freely from the cell, without any other leave, and to converse among themselves until night. Anastasius the monk was not present at the Abbot's precept, but out of laziness was sleeping, and he slept until midday. Anastasius did not transgress the Abbot's precept. But he did not observe the precept, because on account of ignorance of the precept he could not conform himself to it in a human mode, i.e., by a voluntary act. Nothing ought to be more voluntary than the observance of law, which is imposed on a free will. When the time of the precept of silence had passed, he could freely go out from the cell and converse with others. For the Abbot's precept concerned only the silence to be kept; once this had been kept, the aforesaid permission was given to all to go out from the cell and converse. But Anastasius, while sleeping, did not speak, and certainly did not disturb the monastery in those three hours by his shouts and conversations. And this indeed was altogether sufficient in the case, not for escaping a penalty, which was not in question, but for enjoying the permission made by the Abbot to the monks.

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.

"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.

91. Principles. - I. Every man is born and remains subject to natural law. For since natural law is the divine will itself prescribing things consonant with right reason, it is imprinted on the mind of every man with an indelible character. Therefore it happens per accidens ¹ that, reason being enveloped, it is not immediately recognized, or sometimes ceases to be known.

¹ These things must be said thus, because man is never considered exempt from natural law, but is only excused from guilt when, in violating it, the perfection of the act is lacking. Hence it also follows that he whose use of reason is impeded cannot be impelled to acts opposed to natural law; which happens otherwise if the discussion is of merely human laws.

II. All and only subjects habitually possessed of reason are subject to human law. - The reason for the first is that law cannot be made except for subjects. The reason for the second is that men habitually lacking the use of reason cannot be directed by laws.

III. Only men actually using reason can morally violate law; because, cognition being lacking, no one can sin, according to the things said in the Treatise on Human Acts, no. 4. - Hence those who lack reason for a brief time are said to be excused from fulfillment of the law, although they are subject to it.

92. Resolves. - 1. It is not licit to provoke infants and the insane to a thing intrinsically evil, for example to blasphemies, indecencies, etc.; because they, as having a rational nature, are obligated by the natural law in first act, or radically; and therefore they sin formally who provoke them to acts intrinsically evil. - Reuter, no. 167.

2. Infants and the perpetually insane are not subject to human law, as is clear from principle II. Therefore it is licit to give them flesh meat to be eaten on days on which it is prohibited by the Church, etc. ².

² Nevertheless this is not expedient with little children who before the seventh year begin to have some use of reason, although very imperfect. For it is of the greatest interest that from their little nails they become accustomed to bear the yoke of the Lord.

3. Yet the insane for a brief time, or those who have many lucid intervals, the drunk and the sleeping, are subject to law, because they are in a habitual state of the use of reason; nevertheless per accidens they are excused from it, if they are not actually possessed of reason. Hence it is not licit to give them flesh meat on prohibited days. - St. Lig., book 1, no. 155, etc.

4. Unbelievers, namely whoever have not been cleansed by Baptism, are not obligated by ecclesiastical laws; because they are not yet subject to the jurisdiction of the Church, although they are held to enter the Church ³.

³ Therefore marriages among them are valid, although they are contracted with some impediment of merely ecclesiastical law.

5. Heretics, schismatics, and any other baptized persons, even if not Catholics, are held per se by ecclesiastical laws; because although they are rebels, they do not cease to be subjects of the Church: nevertheless per accidens in practice they do not seem to sin; because they scarcely know that from their condition they are held to observe these laws, even if perhaps they already know the necessity and obligation of entering the Catholic Church.

6. For the same reason, excommunicates are bound by the laws of the Church, although they have been cast out of the Church; otherwise they would obtain a benefit from their own malice ⁴.

⁴ Except unless the excommunication itself forbids the exercise of those acts which otherwise are commanded, for example, to be present at Mass.

93. Questions. - QUESTION 1. Whether Clerics are held by civil laws?

I answer 1. Certainly they are not obligated by laws which are repugnant to ecclesiastical immunity still in force, or to their state, or to the sacred Canons. Thus commonly. - 2. Certainly they are obligated to all laws which immediately regard the common good. - 3. As to other laws, they seem to be held just like the rest, because they are part of the community, and the Church requires and commands this. - Thus more commonly. - Suarez. - Reuter, no. 168.

QUESTION 2. Whether children are held to ecclesiastical laws as soon as they have attained the use of reason, although they have not yet completed the seventh year?

I answer affirmatively as more probable. Because every man using reason is by that very fact subject to law, as is clear from principle II. - St. Lig., no. 155 (as more probable). - Nevertheless not a few probably deny, because, as they say, the Church is considered to attend to those things which happen commonly. - Thus Lacroix, no. 676 (as probable). - Reuter, no. 167. - St. Lig. (as probable), book 3, no. 270. - Elbel, no. 369.

94. • QUESTION 3. Whether travelers are held by the laws of their own territory?

I answer 1. Generally no, because law, which regards a community, is territorial, and does not affect persons except through territory. - Thus all.

I answer 2. If they depart with the intention of withdrawing themselves from the obligation of the law, it is disputed.

Concina, Collet, Antoine, and certain others affirm; because, as they say, one's own fraud ought to patronize no one.

But the Doctors more commonly and more probably deny; because one departing from the territory does not act in fraud of the law, but uses his own right. - St. Alph., book 1, no. 156. - Elbel, no. 370. - Lacroix, no. 683, etc. ⁵.

⁵ What is said of the laws of one's proper territory is valid also of the law of common right, when the traveler is staying where this is not in force. St. Ligorius, book 1, no. 156. Yet what is added, that it does no harm if someone leaves his territory with that intention, has no place if he leaves his territory in order to be absolved from reserved sins, or in order to celebrate matrimony clandestinely in a place where the decree of Trent concerning the necessary presence of the parish priest and two witnesses for the validity of matrimony is not in force.

QUESTION 4. Whether travelers are held by the laws of the place in which they are staying?

I answer 1. Affirmatively, if they have a quasi-domicile there ⁶, which is acquired by habitation and the intention of living somewhere for the greater part of the year. The reason is that through quasi-domicile they become truly subjects of that place. - Thus nearly all. - St. Lig., book 1, no. 156.

⁶ But now if they have a quasi-domicile there, they are no longer travelers. For a traveler is called whoever is staying somewhere, having neither domicile nor quasi-domicile.

I answer 2. All travelers and vagrants are held to the special laws of the place in which they are staying, 1. as to contracts, 2. as to things necessary for the common good. - Thus all.

I answer 3. As to other laws, there is a threefold probable sentence.

The first sentence, more probable, excuses them, scandal being excluded, because law does not oblige except subjects. - Thus St. Lig., book 1, no. 156, etc.

The second sentence obliges them to all laws, because he who feels the advantage ⁷ ought also to feel the burden. - Collet. - Antoine.

⁷ The traveler feels the advantage insofar as he is both exempted from observing the proper laws of his own territory, and enjoys the privileges of the place in which he travels.

The third sentence distinguishes thus: They are held to all laws if they have arrived at the end of the journey; but if they have not arrived, only they are held to negative laws. - Thus Suarez with certain others ⁸, who nevertheless concedes that the first sentence also is probable.

⁸ Suarez (On Religion, tr. 2, book 2, ch. 14, nos. 18 and 23) in reality contends that travelers, even those passing through, for the time in which they rest in some place, are held by its laws, and indeed not only negative, but also positive, unless they bring some harm or inconvenience; and therefore he judges that a traveler who remains there for the whole morning time of a feast day is obligated to hear Mass. Nevertheless, from the general canon the mere probability of this sentence is not sufficient to induce an obligation. Wherefore also void and of no value is that conclusion which Suarez deduces from this sentence of his, that a traveler is subject to the reservations of sins proper to the territory in which he travels.

95. From the things said concerning travelers you will resolve. - 1. If in your territory or parish there is a fast, and on the same day you go to a place where there is no fast, you can dine in the evening. - Thus commonly.

2. Probably you can also breakfast, if you are about to depart in the morning, as Busembaum, Lessius, Sanchez, etc., teach against others, and the Salmanticenses with Suarez judge probable, according to St. Lig., no. 157 ⁹. The reason is that fasting is something individual.

⁹ ** St. Alphonsus merely writes: The Salmanticenses, On Law, ch. 3, no. 70, judge it probable with Suarez. Yet in reality the Salmanticenses (On Law, ch. 3, no. 68), and after them St. Alphonsus, here gratuitously allege Suarez, who in the place alleged by the Salmanticenses (On Law, book 3, ch. 32, no. 3) has nothing concerning this question. Besides, the Salmanticenses (ibid., no. 70) preferred to proceed by another way, namely establishing that account must be had of the territory in which someone stays for the greater part of the day. And indeed this opinion also pleased Laymann, who nevertheless (book 4, tr. 4, ch. 11, no. 7), no otherwise than the Salmanticenses, judges the Author's sentence probable.

3. Being in the morning in a place where there is no fast, you can eat flesh meat, even if around midday you are going to return home, where there is a fast. At home, however, you are certainly held to abstain from flesh meat. - St. Lig., no. 158.

4. If in your territory or parish there is a special feast, and you are about to set out to another place where there is no feast, you are not held to hear Mass before departure, provided you are going to arrive outside the place where the precept is in force before the time of obligation ceases. The reason is that the precept does not oblige you to wait. - St. Lig., book 1, no. 157. - Salmanticenses, no. 66, against Antoine, etc.

5. Travelers are held to all common laws in force in that place, even if in their own territory they were abrogated, or through dispensation did not oblige here and now. The reason is that they are subject to the common legislator, and while absent they do not enjoy the privilege of their own territory. Thus a Frenchman outside his homeland is held to Mass on the day of Epiphany, etc.; a Spaniard to abstinence on Saturday, etc. - St. Lig., Apostolic Man, no. 39.

6. Probably travelers are not held to observe the particular law of some place, even if the same particular law is in force in their own territory: the reason is that they are neither held by the laws of their homeland, because they are absent; nor by the laws of the place in which they are staying, because as travelers they are not subject to them. - Reuter, no. 479. - Lacroix, no. 686, against St. Lig., book 1, no. 156.

7. If someone has already satisfied a common law in his homeland or his territory, more probably he is not held to satisfy it again when he arrives in a place where it urges later. Thus an Italian or Spaniard, who fasted in his homeland on the vigil of St. Peter, is not held to fast again in France, where this fast is transferred to the following Saturday. The reason is that there is no obligation of fulfilling the same precept again, since it has already been fulfilled in its own time: for where a determinate debt has already been paid, it is not to be paid again. - See Cases, no. 79 and following.

135. • Invalidating law is that which establishes that some act is invalid from the beginning, or is to be invalidated by the sentence of a judge. Hence there are laws invalidating by the fact itself, while others invalidate only after sentence. Some invalidate absolutely, and others conditionally, namely if the required conditions are lacking. Moreover some immediately invalidate the act itself, as the impediment of matrimony because of clandestinity; and others mediately, by rendering the persons themselves incapable, as the impediment of consanguinity.

Principles. - I. Every legislator can establish invalidating laws; the reason is that this is required for the common good; otherwise frauds and dangers of human society could not sufficiently be driven away. - Suarez.

II. Laws which establish that acts can be rescinded do not invalidate them before the sentence of a judge, as is clear from the terms, and consequently before that sentence they do not obtain force.

III. But one must stand by the sentence of a judge invalidating in all those things which intrinsically arise from the invalidation, because obedience must be given to the authority commanding. - Suarez.

136. Questions. - QUESTION 1. Whether an invalidating law obliges in conscience to avoiding the act?

I answer: Yes, if it is at the same time invalidating and prohibiting, as are laws establishing impediments of matrimony; otherwise, if it is only invalidating, because then the end of the law is sufficiently obtained by the invalidation alone of the act, as in several civil contracts. - Reuter, no. 232.

QUESTION 2. Whether invincible ignorance impedes the effect of invalidation?

I answer: No, of itself, because ignorance does not supply the defect of a thing essentially required, nor does it remove the grave inconveniences which would follow if the law did not invalidate in every case. Thus a woman violated by an unknown man invalidly marries the brother of that same man, notwithstanding invincible ignorance of the impediment of affinity.

210. 1. Eternal law, according to St. Thomas,¹ is "the reason of divine wisdom, according as it is directive of all acts and motions." Namely, God from eternity decreed to create creatures from nothing, and to order and direct them, according to His infinite wisdom, to the end. But He willed to direct them according to the proper nature of each: inanimate things, through the powers and properties impressed upon them; sentient things, through the instincts and tendencies placed in them; intellectual things, through the illumination of the intellect, and the motion by which He directs the will without harming its liberty. Now that ordination of all things to the ultimate end, insofar as it is considered as existing from eternity in the divine mind, is called the eternal law. Its existence is logically inferred from the dogmas of creation and providence.

¹ St. Thomas, Ia IIae, q. 93, a. 1. - Eternal law, concerning which the pagans spoke only obscurely, is described by the Scriptures especially under the name of the wisdom or word of God: Job, XXXVIII-XXXIX; Prov., VIII-IX; Wisd., VI-XII; Ps. CXVIII. Cf. Corluy, La sagesse dans l'Anc. Testament, Congrès scient. catholique, 1888, t. I, p. 61-91.

It can indeed be called law in a broad sense, insofar as it is an ordination of reason, for the common good, willed by him who has care of the community; but it is not law in the strict sense set forth above; for from eternity the community upon which that ordination is imposed is lacking, and likewise promulgation is lacking.¹ From this head the eternal law already differs from the other laws: for it is not properly law, but the fountain of all laws.

¹ For that cannot be called a true promulgation which, according to Billuart, is made through the eternal Word and the book of life written from eternity; for this, unless we are mistaken, is a metaphorical manner of speaking.

211. 2. Laws properly so called are derived from the eternal law, insofar as they manifest to us this ordination which from the beginning exists in the divine mind. This is indeed clear as regards divine laws, which signify to us the will of God. But human laws are derived from the eternal law by a threefold reason: (a) as from an exemplary cause, because laws, that they may be just, ought to be conformable to the eternal law; (b) as from an efficient cause, insofar as every legislative power comes forth from God; (c) as from a directing cause, in the sense that divine reason, through the mediation of the light of reason or faith, directs legislators so that they may see what laws are to be established and when, according to the diversity of persons, times, places, and circumstances. Wherefore divine Wisdom deservedly says: "By me kings reign, and lawgivers decree just things; by me princes command, and the powerful decree justice."²

² Prov., VIII, 15-16.

235. It is not our purpose to examine the historical questions concerning the Mosaic law which today are agitated with great heat not only among rationalists, but even among Catholics: for this pertains to the history of revelation.¹ Yet it is fitting to outline a few things: 1. concerning the character and end of this law; 2. concerning its object; 3. concerning its obligation and abrogation, so that the perfection of the new law may be better understood.

¹ Concerning this matter, cf. Vigouroux, Les Livres Saints et la Critique rationaliste, 3rd ed., 1891, t. III, p. 3-226; Hummelauer, Comment. in Exodum, 1891, p. 16-25; in Deut., 1901, p. 23-110; Pelt, Histoire de l'Anc. Testament, 4th ed., Paris, 1904, t. I, ch. XXVII, p. 295-331; Prat, S. J., Le Code du Sinaï, sa genèse et son évolution, Paris, Bloud, 1904; Lagrange, O. P., La Méthode historique, 3rd ed., 1904, p. 147-182.

236. Since the natural law, impressed upon minds, and the primeval law given to the first parents and patriarchs, had gradually been obscured, whether because of sin, or because of the long stay of the Israelites in Egypt, it was opportune that the chief precepts of each should again be solemnly promulgated and completed by others, by which the chosen people would be more efficaciously removed from idolatry and corruption of morals. For this reason, in the third month after Israel's departure from the land of Egypt, on Mount Sinai, the ten precepts of the Decalogue were promulgated,² which contain the sum of the moral precepts of the ancient law; for the rest, not expressed in the Decalogue, are either presupposed, as the precept of faith and love,³ or follow from others, as the prohibition of lying,⁴ which is inferred from the eighth precept, - and the prohibition of unjust hatred,⁵ which is deduced from the fifth. - Yet to these moral precepts were added ceremonial and judicial precepts, which were accommodated to the special condition of the Hebrews, and were ordered to the more perfect observation of the moral precepts.

² Exod., XIX-XX; cf. Hummelauer, in hunc loc.

³ Deut., VI, 5; Levit., XIX, 18.

⁴ Exod., XXIII, 1.

⁵ Levit., XIX, 17-18.

237. (A) That law is truly divine, insofar as it proceeds from God through revelation or inspiration. For this is declared many times not only in the Old Testament (loc. cit.), but also in the New; thus St. Stephen, the interpreter of Jewish tradition, says:¹ "You received the law in the disposition of angels"; and Paul declares that the law was ordained through angels in the hand of a mediator;² for the ministry of angels denotes the intervention of God.

¹ Acts, VII, 53.

² Galat., III, 19.

From this, however, it is in no way permitted to infer that the Hebrew legislator borrowed nothing from the primeval law, from the customs of the patriarchs, or from foreign laws: for God, by inspiring the sacred authors, can move them to use all those things which they already know naturally. Thus, for example, abstinence from things strangled and from blood, and circumcision, had already been prescribed before Moses;³ likewise divorce, polygamy, slavery, and the law of retaliation had been in use, and the Mosaic law limited all these things rather than established them; moreover, certain moral or ritual precepts are almost the same as those which flourished among the Chaldeans and Egyptians.⁴

³ Gen., IX, 4-6; Gen., XVII, 10-14.

⁴ Cf. Prat, op. cit., p. 16-20; Lagrange, op. cit., p. 156-182, where he sets up a comparison between the Mosaic law and the code of Hammourabi recently discovered by V. Scheil, O. P.

But how much the Mosaic law excels foreign laws is clear to one who attends a little: (a) for it clearly and explicitly inculcates monotheism, and strictly prohibits the worship of idols, which flourished among other peoples: "I am the Lord your God... You shall not have strange gods before me. You shall not make for yourself a graven thing..."⁵ (b) Moreover slavery, although tolerated, is much milder than among neighboring nations.⁶ (c) The sum of the law is the love of God and of neighbor: "You shall love the Lord your God with your whole heart, and with your whole soul, and with your whole strength;⁷... You shall love your friend as yourself."⁸ (d) Not only external sins are prohibited, but also internal ones:⁹ "You shall not covet your neighbor's house; nor shall you desire his wife." (e) Nor is only negative holiness commanded, but also positive holiness, which consists in a certain imitation of divine holiness: "Be holy, because I am holy, the Lord your God."¹⁰

⁵ Exod., XX, 2-4.

⁶ Exod., XXI, 1-11.

⁷ Deut., VI, 5.

⁸ Levit., XIX, 18.

⁹ Exod., XX, 17.

¹⁰ Levit., XIX, 2.

238. (B) To urge the observance of the precepts, the Mosaic law chiefly, although not exclusively, uses temporal promises and threats. St. Thomas explains the reason for this:¹ just as in speculative matters means are proposed to the hearer according to his condition, so in moral matters men must be led to the observance of laws by means proportioned to their character, namely by punishments and rewards. Now the Israelites, since they were stiff-necked and especially inclined toward temporal things, were more easily led by the hand to execute the commandments through temporal promises and threats. Wherefore God, accommodating Himself to them, leads them to divine worship by the promise of temporal things, which are symbols of eternal goods: "Whence it was fitting for the old law that through temporal things which were in the affection of imperfect men, it should lead men by the hand to God."

¹ St. Thomas, Ia IIae, q. 99, a. 6.

239. (C) The Mosaic law, although divine, received various additions at various times:² for God did not cease to accommodate His laws to the condition of the Jews; hence He sent Prophets, who not only recalled the people to the observance of the law, but also authentically interpreted and completed the law.³ Likewise He inspired other writers, who in the sapiential books and in the psalms explained the ancient precepts of ethics and handed down new and more perfect ones. The historical books also, besides the examples of virtue which they report, contain not a few precepts or counsels which are especially useful for the spiritual life. Hence, in order to know the old law accurately, it is not enough to read the Mosaic books, but it is necessary to run attentively through the other sacred writers.

² In the Mosaic books a threefold series of laws can already be distinguished: (a) the Code or volume of the covenant (Exod., XX-XXIII); (b) the priestly Code (Exod., XXV-XXX and XXXV-XL; Levit. in its entirety; Num., I-IX, XV, XVII-XIX, XXVIII-XXX, XXXIV-XXXV); (c) Deuteronomy, which either contracts or more fully explains each code.

³ You will find certain examples apud Prat, op. cit., p. 48-67.

240. (D) But the end of the law is Christ;⁴ for, as St. Peter says,⁵ "all the prophets, from Samuel and afterward, who have spoken, announced these days" (messianic days). The law itself was our pedagogue in Christ, that is, leading us to Christ; for its various precepts, not only moral, but also ceremonial, especially those which regard sacrifices and sacraments, were divinely ordered to preparing the way of the Messiah; for by the observation of the law they disposed the Jews to understand and receive more easily the more perfect law of Christ. This indeed is true also of many historical facts, according to that saying of the Apostle:¹ "All these things happened to them in figures"; for many things tended to this, that they might draw minds away from temporal things, and dispose them to awaiting the spiritual kingdom of the Messiah. Therefore the law cannot be rightly understood unless it is kept before the mind that this is a preparation for the evangelical law.

⁴ Rom., X, 4.

⁵ Acts, III, 24-25. We proved this elsewhere, De Vera Relig., n. 229-265.

¹ 1 Cor., X, 11; cf. Fillon, La Ste Bible, t. I, Introduction, p. 2-10.

241. (A) Moral precepts, which are briefly summed up in the Decalogue. For there the chief duties toward God and neighbor are handed down.

St. Thomas declares this as follows:² To God, as the principle of the community, three things are owed: fidelity, reverence, service. Fidelity consists in this, that He alone be adored; hence the first precept: "You shall not have strange gods." Reverence demands that nothing injurious be committed against Him; whence the second precept is as follows: "You shall not take the name of the Lord your God in vain." Service is owed in recompense for benefits received from the Lord: and to this pertains the third precept concerning the sanctification of the Sabbath, in memory of the benefit of creation. - But toward neighbor, the duties to be fulfilled are special or general: special with regard to parents, to whom children ought to show honor, according to the fourth precept. General duties consist in this, that harm be inflicted on no one by deed, mouth, or heart. By deed let no injury be committed against the person himself: You shall not kill, according to the fifth precept; nor against the person joined in marriage: You shall not commit adultery, as the sixth precept bears; nor in external goods: You shall not steal, as the seventh precept declares. Harm of the mouth is prohibited by the eighth precept: You shall not speak false testimony against your neighbor. But harm of the heart is prohibited by the ninth and tenth precepts: You shall not desire the wife... You shall not covet your neighbor's house.

² St. Thomas, Ia IIae, q. 100, a. 5.

Yet these precepts presuppose another one handed down elsewhere, namely the love of God and of neighbor, as we explained above, n. 236.

242. (B) Ceremonial precepts, which determined the peculiar mode by which God was to be worshiped at that time, and at the same time prefigured the mysteries and sacraments of Christ. From this it can be understood why precepts of this kind were so numerous:³ (a) to promote the worship of God;

³ St. Thomas, Ia IIae, q. 101, a. 3.

for since the Jews were prone to idolatry and the neighboring nations worshiped idols in manifold ways, it was necessary likewise to institute many and solemn ceremonial precepts, by which the chosen people might be more efficaciously deterred from the worship of idols; if the worship offered to the true God had been too simple, the Israelites would easily have been led away to the more solemn worship of the gods; and indeed, when Christian rites, much simpler than Jewish rites, succeeded them, not a few Hebrews converted to the faith grieved greatly over the abrogation of the ancient rites, as is evident from the Epistle to the Hebrews. (b) Moreover, the ceremonial precepts prefigured Christ who was to come, as the Decree for the Jacobites declares:¹ "All the sacred rites, sacrifices, sacraments, and ceremonies of the Old Testament pre-signified Him [Christ] as one day to come." But the mysteries of Christ, on account of their perfection and multiplicity, could be prefigured only by many rites: for the individual Mosaic rites, as imperfect, signified only one or another aspect of the mysteries of Christ; thus, in order to represent the one sacrifice of the New Law, there were many and diverse old sacrifices, each of which in its own way prefigured the immolation of Christ.²

¹ Apud Denzing., n. 602.

² Concerning the reason and sense of the ceremonies of the old law, cf. Bähr, Symbolik des mosaischen cultus, Heidelberg, 1874, t. I; Broglie, Confér. sur l'idée de Dieu dans l'Ancien Testament, Paris, 1892, 6th Conf., p. 197-223; Lesêtre, apud Vigouroux, Dict. de la Bible, t. II, 437-441.

243. (C) Judicial precepts, or civil or political ones, which ordered the Israelites toward one another, under the rule of God, the supreme king. For God was held not only as spiritual Lord, but also as temporal king of the Jewish people. Wherefore He determined their political and social state by judicial laws, and ordered it especially to a twofold end: (a) that the Israelites, by living according to justice and equity, might be prepared step by step for the messianic kingdom, which is a kingdom of justice and equity; (b) that by the social rule of the chosen people the constitution of the Church of Christ might in some way be prefigured.³ - According to St. Thomas,⁴ judicial precepts are divided into four species: (a) those which regard the institution of princes and magistrates, their offices, and the reverence to be shown to them; (b) those which pertain to fellow-citizens in their mutual relations, for example purchases, sales, judgments, punishments, etc.; (c) those which regard foreigners, for example wars against enemies, the manner of acting toward pilgrims and strangers; (d) those which refer to domestic life, namely wives, children, servants.⁵

³ St. Thomas, Ia IIae, q. 104, a. 1-2.

⁴ Ibid., a. 4.

⁵ Pelt hands down a brief synopsis of these civil laws, op. cit., t. II, p. 40-59.

244. (A) Concerning obligation. (a) The old law, insofar as it promulgates moral precepts of natural right, obliges all men who have attained knowledge of these, not because it is the Mosaic law, but because it is the natural law impressed upon hearts; and therefore the precepts of the Decalogue, if you except the sanctification of the Sabbath day, which does not pertain to the natural law, bound the Gentiles per se and also bind them today, and likewise Christians themselves; for, according to the common and true opinion, these precepts, with the third excepted, are nothing other than an exposition of the natural law. Wherefore Trent strikes with anathema those who hold that "the ten precepts pertain in no way to Christians."¹

¹ Trent, sess. VI, can. 19.

(b) But the ceremonial and judicial precepts obliged only the Jews, and the proselytes of justice,² who by circumcision were inserted into the Jewish nation: for these were positive precepts, which had been enacted not for the Gentiles, but for the chosen people alone. Just as today clerics and religious are held by certain laws which in no way bind laymen, so the Israelites were bound to observe certain special commandments to which other peoples were not bound.³ But because legal observances were of no little profit for attaining holiness and salvation more securely, certain Gentiles, who converted themselves to the true God, freely took up the obligation of observing the Mosaic laws.

² Proselytes of justice were Gentiles converted to the faith, who by circumcision were inserted into the Jewish people; proselytes of the gate, although truly converted, were not circumcised, but only had to fulfill the precepts which were called Noachic (Gen., IX, 4).

³ St. Thomas, Ia IIae, q. 98, a. 5.

245. (B) Concerning the abrogation of the old law. From what has already been said, the moral precepts were in no way abrogated by the new law. But the ceremonial and judicial precepts were abrogated through Christ, as is evident from the Council of Jerusalem, which, against the Pharisees, declared that circumcision and the other Mosaic prescriptions were no longer in force,⁴ - and from the Epistle to the Galatians, where the Apostle severely reproves the converts who had wished to bind themselves to this law. - And deservedly; for, since they had been instituted to prefigure and prepare the advent of Christ, once Christ had come, they could no longer persist.

⁴ Acts, XV, 5-29.

Yet, during the life of Christ, the law was in force together with the Gospel, and He Himself willed to fulfill the law, because the mystery of Redemption had to be consummated only through the passion and death of the Savior. Christ having died, the legal observances were dead in law, because our redemption was then completed; yet in fact they were abrogated only at that time when the Gospel had been promulgated.

262. 1. The general principle is that the Church can make laws concerning all those things which regard the worship of God and the sanctification of man: "Whatever therefore in human affairs is in any way sacred, whatever pertains to the salvation of souls or the worship of God, whether it is such by its own nature, or again is understood to be such because of the cause to which it is referred, all that is in the power and judgment of the Church."³ For the power of any society is measured by its end; but the end of the Church is the attainment of eternal life through the worship of God and the sanctification of its members. - From this it follows that nothing dishonorable, nothing contrary to natural or divine right, can be prescribed.

³ Leo XIII, Encycl. Immortale Dei, 1 Nov. 1885.

263. 2. Ecclesiastical law cannot command what is too arduous and difficult. For since it is enacted for the good of the community, it ought to be proportioned to the fragility of human nature; otherwise it would not promote the public good, but rather would be a very frequent occasion of sins. Concerning this, however, three things must be noted: (a) it is not repugnant that an arduous law be imposed upon some society or state which not all, but few, freely choose, as is, for example, the law of celibacy or poverty annexed to the clerical or religious state; (b) when the reason of the public good requires it, the Church can command even heroic acts, for example the administration of the sacraments in time of contagious disease; (c) judgment concerning the difficulty of the law belongs to the legislators themselves, not to the subjects: otherwise laws would be done away with.

264. 3. But it is asked whether the Church can command internal acts. Here there is question not of the penitential forum, where the confessor, as minister of Christ, judges concerning internal things, and can enjoin merely internal works by way of satisfaction; but of the external forum, to which legislative power pertains.

(A) According to all, the Church can prescribe internal acts which are necessarily joined with external acts; for law directs only truly human acts, and therefore can be concerned with the internal dispositions necessary for a human act; thus, by commanding an oath, confession, communion, or the hearing of Mass, by that very fact it commands the internal acts necessarily joined with those external acts, namely the mind of swearing, attrition, the state of grace, attention.

(B) According to the common opinion, which we embrace, the Church cannot prescribe merely internal acts.¹ For (a) the judicial and coercive power of the Church cannot be exercised concerning internal acts, as Innocent III openly declared: "If their excess [of simoniacs] were manifest to the Church, which does not judge hidden things, they would have to be struck with canonical penalty";² and elsewhere he adds: "It has been given to us to judge only concerning manifest things."¹ But legislative power cannot proceed without judicial and coercive power: for it is required that the legislator be able to urge the observance of his laws by judgment and penalties; otherwise, his power would be contemned.

¹ Thus St. Thomas, Ia IIae, q. 1, a. 4; q. 100, a. 9; Suarez, De Legibus, l. IV, c. 12; Schmalzgrueber, in tit. de Const., n. 21; St. Alphonsus, lib. I, n. 100. Bouquillon, n. 114, with certain others, defends the contrary.

² Cap. Sicut, 33, de Simonia (lib. V, tit. 3).

¹ Cap. Tua nos, 34, de Simonia (lib. V, tit. 3).

(b) Just as the power of the internal forum directly and immediately regards the internal sanctification of individuals, so the power of the external forum directly regards the external governance of the Church, and therefore reaches internal acts only indirectly, namely those which are necessarily joined with external acts.

265. 4. It is asked moreover whether ecclesiastical law can reach past acts. (A) Per se it generally does not extend to them; for since law is primarily a rule, it cannot reach past acts which can no longer be ruled. Hence in canon law it is expressly said:² "Since it is certain that laws and constitutions give form to future affairs, they are not to be drawn to past facts, unless provision is made in them by name concerning past things." From this was born the axiom: "The law does not have eyes backward."

² Cap. Quoniam, 13, de Constit. (lib. I, t. 2).

(B) Sometimes, however, the law reaches past acts, not indeed as to the force of commanding or forbidding, as has already been said, but as to other effects: -

(a) As to a penal effect; namely, it cannot reach an act previously prohibited in no way, but it can punish an act which was already previously prohibited, although without sanction or without determinate sanction.

(b) As to an irritant effect; if an act, previously posited, is irrevocable by natural or divine right (for example, a matrimonial contract between Christians), a subsequent law cannot reach it; but if from some part, although valid, it is infirm or capable of being made void (for example, a contract entered into from fear), the law can irritate it, for a grave cause, provided that it expressly makes provision for this.

(c) A law establishing inabilities, incapacities, and irregularities, which are not properly penalties, can reach past acts for a most grave cause: for since here there is question not of a penalty, but of a condition for obtaining some office, the matter depends upon the will of the legislator.

It must be noted, however, that the things which we have said regard law properly so called, or law constitutive of new right; for if there is question of a law declarative of ancient right, it much more easily reaches past acts, although the agent ought to be excused from fault and from penalty, on account of ignorance and uncertainty of the newly declared right.

277. (A) A law including a presumption of fact is one which, supposing that some fact always exists in certain adjuncts (because in similar adjuncts it is truly accustomed to exist), establishes rights and obligations for a case of this kind. Thus if someone has been born and educated among Catholics, he is presumed by law to have been baptized: therefore the law by which he is subjected to all the statutes of the Church, although his baptism is not certainly established, is a law including a presumption of fact.

A presumption of fact can be simply of law, or of law and by law: the former is one which is simply expressed or supposed in law, and against which any proof is admitted; thus in the case brought above; - the latter is one which is held by law as so firm that it is considered as truth, and against it not any proof is admitted, but only proof either indirect, or direct but wholly manifest: thus "a res judicata is held true and just by a presumption of law and by law, and cannot be impugned directly," as the Code, c. 1904, decrees; thus also from c. 1972, "a marriage which, while both spouses were living, was not accused, after the death of either or both spouses, is presumed to have been valid in such a way that no proof is admitted against this presumption, unless the question arises incidentally."

(a) In the external forum, a law founded on a presumption of law simply obliges until the falsity of the presumed fact is proved: and for demonstrating this, any proof suffices. - If there is question of a presumption of law and by law, it likewise obliges until the falsity of the presumed fact is demonstrated; but regularly direct demonstration is not admitted, unless it is wholly manifest. But indirect proof is admitted; for example, a res judicata can be impugned indirectly if the falsity of the documents on which the sentence exclusively rests is proved. - Indeed direct proof is permitted, if it is wholly evident, as judicial confession, a public document, witnesses of extraordinary authority: for the axiom is universally received: presumption yields to truth.

278. (b) In the internal forum, a law founded on a presumption of fact does not oblige in conscience, if the fact truly does not exist: for, in the forum of conscience, presumption always yields to truth. Thus if two spouses contracted marriage invalidly, because of a diriment impediment which cannot be proved in the external forum, they cannot engage in marital intercourse, even if the validity of the marriage is confirmed by the sentence of the judge.¹ - Yet if a law of this kind can be observed without sin, it often ought to be observed in order to avoid scandal.

¹ Decretal., cap. Inquisitioni, 44, de Sentent. excommunicationis.

279. (B) A law founded on a presumption of danger is one which forbids or commands something, to forestall a danger which is frequently found connected with some action or omission; thus the law which prohibits the reading of depraved books, or forbids mixed marriages; for in these cases the danger of perversion regarding faith or morals is frequently present. Now a law of this kind always obliges, even if in a particular case the danger is not present. For law does not cease unless the end of the law has ceased adequately, that is, totally and as to all, morally speaking: since it is directed to the whole community. But in our case, even if danger does not exist for such an individual, nevertheless it perseveres for the community. Therefore the law retains its force. - Moreover according to the Code,² "laws enacted to forestall a general danger urge, even if in a particular case the danger is not present." Otherwise many will rashly judge that no danger threatens them.

² Code, can. 21.

280. (A) Notion and species. (a) An irritant law is called one which establishes that some act or contract, on account of some defect, is by that very fact invalid or rescindable; and thus it is distinguished from a prohibiting law, which of itself indeed makes an act illicit, but not invalid. - A law closely related to an irritant law is an inhabilitating law, which decrees that such a person is incapable for this or that act; whence irritation directly regards the act, and inability directly regards the person; but in practice and morally speaking, both produce the same effects.

(b) From the very notion handed down, a law can irritate in two ways: by the law itself, when the act is rendered null from the beginning, even before the sentence of the judge; - by the sentence of the judge, when the act is valid until it is rescinded by the judge: wherefore, before the sentence of the judge, it is indeed rescindable, but not invalid. - From another head, irritation is called penal, when it is enacted on account of some delict; non-penal, when, on account of the public good, it irritates acts lacking a certain condition.

281. (B) Effects of an irritant law in the external forum. (a) If the act is only rescindable, it is deservedly held as valid until it is rescinded by the judge; for to this pertains what is said in canon law:¹ "Since many things are tolerated through patience, which, if they had been brought into judgment, with justice requiring it, ought not to be tolerated." (b) If the act is null by the law itself, it is held as invalid from the beginning, and the sentence of the judge, if it supervenes, does not properly irritate it, but declares that it was invalid from the beginning.

¹ Decretal., cap. Cum jamdudum, 18, de Praebendis (lib. III, tit. 5).

282. (C) Effects of an irritant law in the internal forum. When there is question of a rescindable act, there is no difficulty: for it is valid in the forum of conscience until it is rescinded. But very grave difficulties and controversies are present when there is question of an act null by the law itself. We explain those things which seem to us more probable: -

(a) If the question is concerning those acts or contracts which have being and receive force from canon law alone (as, for example, religious profession), they must be held as invalid, even in the internal forum, before any declaratory sentence of a judge; since they do not have being and force from natural law, but only from canon law, - and moreover canon law in the case irritates them, they have no existence or force.

(b) If the question is concerning those acts or contracts which receive being and force from natural law, the difficulty increases: 1) if the canonical legislator clearly manifests his will of irritating the act even in the internal forum, this must be wholly stood by: for he is endowed with the power of doing this; 2) if there is question of a matrimonial contract, the same must be said; the reason is because if that contract is once admitted as valid, thereafter it can be rescinded by no human power, even ecclesiastical, on account of the indissolubility of the matrimonial bond established by divine right; 3) but if there is question of other acts or contracts (for example, alienation of ecclesiastical goods), and nothing else is lacking for their validity except a certain solemnity prescribed by canon law, certain canonists of great name probably hold that the contract can be held as valid in the forum of conscience, until it is declared null by a judge; for it seems too hard that someone ought to despoil himself of a good justly acquired (considered according to natural right), before the declaratory sentence of a judge, on account of the defect of some solemnity; whence, in this case, it can be said that the act is not valid canonically, but retains its natural force until the contrary is authentically declared.

345. To civil authority belongs the power of irritating certain acts of subjects, which otherwise by the right of nature are valid. Theologians commonly admit this against a few; and deservedly. For supreme and independent authority, such as civil society is, can establish, in its own forum, whatever is required for promoting the public good; but the public good sometimes demands that certain acts and contracts, although valid by the right of nature, be held as null; such are, for example, certain contracts entered into by minors, or from fear, or without legal forms. - Moreover sometimes the public good requires that those contracts be held invalid not only in the external forum and after the sentence of the judge, but also in the forum of conscience and before the declaratory sentence: for otherwise lawsuits would be multiplied, and the poor, who cannot pay the expenses of lawsuits, would easily be oppressed by the more powerful. Therefore civil law can, for grave reasons, irritate certain acts in conscience, even before the sentence of the judge.

Yet, since we are dealing with odious matter, a law wholly irritating is not easily presumed, but must be certainly proved; therefore if it can reasonably be understood of mere prohibition, the more benign interpretation is to be followed; likewise, if in a particular case it is doubted whether the legislator willed to irritate some act before the intervention of the judge, and moreover the public good does not evidently require the rescission of the act, the sentence of the judge can be awaited.¹

¹ We explain this more fully in the Treatise on the Virtue of Justice, n. 617-619.

The reason for the distinction between this case and the other (n. 344) is because a law determinative of property is favorable matter, while a law irritating an act valid of itself is something odious.

A human law binds all those for whom it is made and who are subject to the authority of the legislator.

The laws of the Church oblige only baptized persons who have attained the use of reason. Theoretically, Protestants, too, are in some manner subject to the jurisdiction of the Church,¹ but "a probable opinion teaches that it is not the Church's intention to bind them by such of her laws as proximately regard the sanctification of individual souls, rather than the public good," because "harm rather than good would follow from intending these laws to bind heretics and schismatics." ² A general law obliges all who have attained the use of reason and are subject to the authority of the legislator. All such, therefore, are in duty bound to acquaint themselves with the laws under which they live.

¹ 1 Cor. V, 12-13.—Cfr. Conc. Trident., Sess. VII, can. 7-8 de Bapt.; letter of Pius IX to Emperor William I, August 7, 1873.

² Thos. Slater, S.J., A Handbook of Moral Theology, Vol. I, p. 93.

A particular law is one made for a limited class of persons or for a particular territory only. Particular laws of the latter kind bind those for whom they are made, who have a domicile or quasi-domicile in the territory concerned and actually reside there.

To have a domicile means to live in a place for ten years or with the intention of residing there permanently. A quasi-domicile is acquired by living in a place with the intention of remaining there for the greater part of a year, or by actually residing there for the greater part of a year.³

³ Codex Iuris Can., can. 13, 92.

Foreigners (peregrini) are not bound to obey the particular laws of either their own country or the one in which they are sojourning, with the exception of those which regard the public welfare or prescribe legal formalities.⁴ Strangers (vagi, who have no domicile or quasi-domicile anywhere) are bound to obey the general as well as particular laws of the territory in which they sojourn.

⁴ Codex: Iuris Can., can. 14. Cfr. St. Augustine, Epist., 36, c. 14, 11. 32: "I shall tell you what the venerable Ambrose replied when I asked him about this: When I am here [in Milan], I do not fast on Saturday; when I am at Rome, I fast on Saturday; and to whatever church you come, he said, observe its custom if you wish neither to suffer scandal nor to cause it." —IDEM, Epist., 54 (al. 118), c. 2, n. 2; "But other things which vary through places and regions of the earth—such as that some fast on Saturday and others do not; some communicate daily in the Body and Blood of the Lord, while others receive on fixed days; in one place no day passes on which the offering is not made, in another it is made only on Saturday and Sunday, and elsewhere only on Sunday—and whatever else of this kind can be observed: this whole class of things admits of free observances. In these matters no discipline is better for a serious and prudent Christian than to act in the manner in which he sees the church act to which he may happen to come. For whatever is proved to be contrary neither to faith nor to good morals is to be regarded as indifferent and observed for the sake of fellowship with those among whom one lives." (Migne, P. L., XXXIII, 200). Hence the well-known adage: "Si fueris Romae, Romano vivito more; si fueris alibi, vivito sicut ibi." —Cfr. H. Noldin, S.J., Theol. Mor., Vol. I, qu. IV, art. 1, § 124, 5.

A journey undertaken in fraudem legis, i. e., with the express purpose of escaping an obligation, leaves that obligation in full force. However, if a man actually leaves a place with the intention of not returning to it, the obligation ceases, even though his motive was to escape the law. An actual change of domicile always entails a change of jurisdiction, no matter what the motive for which it is effected.

Children who have not yet attained, and adults who have permanently lost, the use of reason, are not bound by any human law. The reason is that they are incapable of performing moral acts.⁵ Under certain conditions, however, such persons may be forced to conform to particular precepts, e. g., that of abstinence.

⁵ Cfr. St. Thomas, De Veritate, qu. 17, art. 3: "Lex seu praeceptum est vinculum rationis."

A sovereign is subject to his own laws, not coactive, i. e., as regards their coercive force, for no one properly is coerced by himself; but directive, i. e., as regards their directive force, for the sake of order and good example. In the words of St. Thomas, "He ought voluntarily and not of constraint to fulfil the law," though strictly speaking he is above it, "inasmuch as, if expedient, he can change the law and dispense from it according to place and season."⁶

⁶ Cfr. St. Thomas, Summa Theol., 1a 2ae, qu. 96, art. 5, ad 3 (Rickaby, Aquinas Ethicus, Vol. I, p. 294).—St. Ambrose, Apol. Proph. David, II, c. 3, n. 8 (Migne, P. L., XIV, 890). —IDEM, Epist., 21, n. 9 (P. L., XVI, 1004). —St. Isidore, Sent., III, c. 51, n. 1-2, cited in the Decretum Gratiani, c. 2, D. 9 (P. L., LXXXIII, 723; Corpus Iuris Can., ed. Friedberg, Vol. I, col. 16). — On the question of domicile and quasi-domicile see Aug. Bachofen, P.S.B., Commentary on the New Code of Canon Law, Vol. II.

It goes without saying that the members of legislative bodies are bound to observe the laws which they themselves have made.

READINGS. —St. Thomas, Summa Theol., 1a 2ae, qu. 96, art. 5. —F. A. Göpfert, Moraltheologie, Vol. I, 6th ed., Paderborn 1909, pp. 57 sqq.—Thos. Slater, S.J., A Manual of Moral Theology, Vol. I, pp. 92 sqq. —A. Boudinhon, art. "Domicile" in the Cath. Encyclopedia, Vol. V, pp. 103-106.—A. Sweens, Theologia Moralis Fundamentalis, 2nd ed., pp. 204 sqq. —A. Lehmkuhl, S.J., Theologia Moralis, 11th ed., Freiburg 1910, Vol. I, pp. 138 sqq.

— We have already suggested the division from the author, which will be more demonstrated in chapter VI. From sanction, we distinguished moral, penal, and mixed laws.

Besides these divisions, the following are to be attended to by us.

1. Affirmative and negative law. - An affirmative law commands an act; a negative law forbids an act. Each obliges as long as it is in force, and therefore always; but the former does not oblige for always. For an act prohibited, within the limits of the prohibition, must be omitted at any moment whatever; whereas an act commanded is not to be done at any moment whatever.

Moreover, every affirmative law admits just delays and also omissions; for the omission of some act does not intrinsically affect the other acts which are done: these remain in themselves what they were, good or evil. But, on the contrary, an act prohibited is, while the prohibition remains, intrinsically vitiated. And when the prohibition is read in nature itself, it has the universality and firmness of nature itself: wherefore no difficulty excuses from a negative natural law. On the contrary, prohibitions of positive law are tempered by excuses according to the reasonable will of the legislator. This holds concerning divine law itself. Thus the Lord himself approved the deed of David, who, pressed by hunger, ate the loaves of proposition which only priests were permitted to eat ¹. But in the New Testament no prohibition is read which is at once of positive and divine law.

¹ I Reg. 21, 6 [printed: I Reg. 2, 10]; S. Matth. 12, 3.4.

— 2. Law founded on proofs, such as one which divides an inheritance or punishes delinquents, and law founded on presumption or on fiction. Presumption is defined: "a probable conjecture concerning an uncertain matter" (c. 1825, § 1).

Now law can be founded on presumption in two ways:

a) On a presumption of general danger: then the probability of danger moves the legislator to enact a certain universal sanction. Thus, to forestall the general danger of perversion or of spiritual detriment, canonical law forbids evil books or books of a certain subject matter to be read without faculty; civil law, to forestall the general danger of negligence, obliges one guilty of merely civil fault to repair the damage. Cf. d'Annibale, I, 208. By such a law the judgment of danger is withdrawn from subjects. Wherefore from c. 21, a law of this kind is to be urged "even if in a particular case the danger is not present."

b) On a presumption of fact, "when, holding as certain that something was done, because thus it is more commonly wont to happen, from that supposed fact ... law establishes rights and obligations" (d'Annibale, I, 208).

This presumption is iuris tantum, if contrary proof is admitted in the external forum; it is iuris et de iure, when the judge is forbidden to attend to contrary proof. Thus all laws, both canonical and civil, presume as legitimate a son born of a married woman. But some permit contrary proof, while others forbid "that inquiry be made concerning the father."

Thus "from a celebrated marriage, if the spouses have cohabited together, consummation is presumed, until the contrary is proved" (c. 1015, § 2); while "a thing judged, by a presumption iuris et de iure, is held to be true and just, nor can it be directly impugned" (c. 1904, § 1) ¹.

Thus far, presumption of law. There is also a presumption of man, "which is conjectured by the judge" (c. 1825, § 1), concerning which the Code of Canon Law establishes this, c. 1828: "Presumptions which are not established by law the judge is not to conjecture except from a certain and determinate fact, which directly coheres with that about which there is controversy."

But, whatever may be the law of the external forum, in the internal forum a presumption of fact yields to the truth. Wherefore if the fact truly did not occur, scandal or a higher motive of observance being excluded, that law does not bind the conscience.

¹ Indirect proof, however, is admitted, that is, against the very fact on which the presumption is founded (c. 1826). Thus you could not demonstrate the error of a definitive sentence, but you could prove the nullity of the sentence.

— Certain laws seem to be founded on fiction. In matter subject to himself, the legislator can, on account of the common good, juridically transfer a disposition beyond the true species of fact on which it regularly rests: for example (which both canonical and civil law effect), to regard as legitimate children whose parents are afterwards joined by a legitimate bond. Therefore fiction is defined as a disposition of law contrary to the truth in a possible matter and from a just cause (Bouquillon, Theol. fundam., n. 162).

Laws of this kind oblige subjects, but neither can they themselves be transferred to cases not expressed, nor can the effects of their assimilation be enlarged.

Nor indeed, however, can fiction found any law or be able to found one, since fiction in itself is nothing. But some reason of the common good, for example equity, moves the legislator (and therefore founds the law) to extend the benefit or effects of the law beyond the merit of the cause. Thus when it is said, "an infirm canon is held as present," in reality this is signified: distributions among those present are granted also to an infirm man who is absent. And mention of fiction is not useful, except insofar as it permits a briefer enunciation of the law. But because that mention at the same time can deceive, not without merit many would wish to give notice of departure to the naming of things as "fictions." Wherefore very well the Code of Canon Law, c. 1117, no longer says: "children legitimated by a subsequent marriage are held by fiction as legitimate," but, omitting the word fiction, directly establishes thus: "Children legitimated by a subsequent marriage, as regards canonical effects, are in all things equated to legitimate children, unless something else has been expressly provided."

— 3. Law merely commanding or prohibiting, and invalidating law. For, besides the efficiency of obligation, not only divine law but also human law, both canonical and civil, so that it may effectively provide for the common good, can render null certain acts which, considered in themselves, would be valid.

This invalidation is sometimes certain, but at other times disputed or doubtful. Thus, by natural law itself, a marriage attempted between parents and children is null; but it is less certain that nuptials between brother and sister are rendered invalid by natural law itself. And when invalidation is certain, this is sometimes disputed, whether the invalidation must be ascribed to divine law or to human law. Thus, is the impediment of force and fear in marriage constituted by natural law or by human law? Authors dispute the matter.

Moreover natural divine law forbids what it invalidates, while human law, at least civil law, sometimes permits to be done what nevertheless it wills to be juridically ineffective: for example, an informal testament. Consequently, as is evident, the obligation of the law varies.

But several other distinctions occur.

a) A law can invalidate an act most fully, that is, effect that in reality or by full right it be of no value; or only after the sentence of a judge can it hold the act invalid. This sentence sometimes merely declares the nullity, sometimes truly effects it. If the sentence is a mere declaration of nullity, its force is said "to be drawn back," or to act backwards to the very moment at which the act was done, which therefore is reputed to have been null from the first moment; in the other case, the effects produced up to the sentence of the judge remain firm.

Law can take away the natural obligation itself, or merely in the external forum either take away the action, or provide the defendant an exception by which he can repel the plaintiff: this is invalidation improperly so called.

Furthermore a most full invalidation, which by the fact itself takes away the natural obligation itself, cannot be presumed, but must be demonstrated from the words of the law or from the end which otherwise would not be obtained. Cf. d'Annibale, I, 206 (52); Lehmkuhl, I, 315.

Concerning the sentence of a judge, this also must be observed: while in canon law (cf. cc. 1679-1682) an action is directly conceded for obtaining from a judge a declaration of nullity, in the civil forum an action of this kind is generally not had, either because the very appearance of a civil act is lacking, as if you wished to obtain the invalidation of a verbal testament, or because no use is made of the invalid act, so that a present plaintiff does not have an interesse. For example, if an heir instituted by an informal testament allows the heir by intestacy to take the inheritance, that legal heir, so long as the other does not vindicate the goods, would in vain seek from a judge a sentence concerning the testament.

b) A law can invalidate an act absolutely, or only in favor of someone, for example of a minor. To him alone then (or to a tutor or to him who can act for him) belongs either an exception for repelling the plaintiff or an action for recovering what he has paid. Thus also often fear can be opposed by the party alone who has suffered the fear.

c) The condition of invalidation can be injury or damage. Hence that common saying, whose force we shall afterwards define more accurately: "A minor is not restored as a minor, but as injured."

— Divisions of laws. I. From sanction there are moral, penal, and mixed laws.

II. From object, an affirmative law commands an act, and, although it always obliges, nevertheless admits delays and also omissions; a negative law forbids an act, and obliges always and for always. No difficulty excuses from a negative natural law.

III. From its foundation, one law rests upon a demonstrated matter, another upon presumption, or upon fiction itself. Presumption (or conjecture from probable indications) can be of general danger: this obliges even if, in a particular case, the danger ceases; or presumption of fact: this presumption is either iuris tantum, if it admits contrary proof, or iuris et de iure, if it excludes such proof. Fiction (or, from a just cause, a disposition contrary to truth in a possible matter) extends the benefit or effects of law beyond the merit of the exterior cause.

IV. From its efficacy, law merely commands or forbids, or also weakens an act: either most fully or (not always by a special action) after the sentence of a judge; whether the natural obligation itself is taken away, or only the civil action (absolutely or in favor of someone).

First one must write of divine law, then of human law.

142. Notion. The name of law (lex) seems to be derived from binding (ligare).⁵ For creatures are bound to certain norms of acting, which they must observe for the good of the whole universe; and therefore absolutely all creatures are bound by laws given by God and are subject to them. But irrational creatures (whether animate or inanimate) are necessarily subject to physical laws. And so the Creator has established physical laws for the stars in the firmament of heaven as well as for worms on the earth; and all beings obey at the nod of the eternal ruler. In Moral Theology we do not speak of these physical laws, of which the natural sciences treat.

There are other laws, which bind only rational creatures by prescribing norms according to which free actions are to be ordered in relation to the ultimate end. They are called moral laws, and now there is discussion of these alone. But moral law can be considered in three ways: 1. According as it exists in the legislator as in the one regulating, and according as it pre-requires three acts, namely, a) an act of reason deliberating and determining what is useful for the good government of the community; b) an act of will determining that such statutes bind subjects; c) an act of promulgation of the law in the community. - 2. According as it is in the subjects as in those regulated. For subjects must know the law and its obligation and be directed according to it in their actions. - 3. According as it is in an exterior sign, for example, in a book of laws (Bürgerliches Gesetzbuch, Strafgesetzbuch, Code civil, etc.) or in a custom having the force of law. - Now we take law according to the first consideration, and in this sense law is defined by St. Thomas:⁶

⁵ Others derive the name of law from legere, others from eligere.

⁶ S. theol. I-II, q. 90, a. 4.

143. Definition. Law is "a certain ordinance of reason for the common good, promulgated by him who has care of the community."

This definition indeed, as if classical and magisterial and approved by almost all authors, must be explained in a few words.

It is said first: "a certain ordinance of reason,"⁷ by which words is designated the proximate efficient cause of law, namely, reason. For practical reason and not will (as some teach after Suarez) properly causes law. For it belongs to reason and not to will to order to a due end through proportionate means, to find norms of acting, and to command.⁸ Certainly in establishing a law the will also must intervene, but it is not the proper and proximate cause, because it only moves reason to acting and, once the law has been established, executes its application. Since by the Angelic Doctor law is called a certain ordinance, it is intimated that not every ordinance of reason is law, since a precept and counsel are also ordinances of reason. Therefore the ordinance which causes law must be a true command, and therefore have certain qualities, namely, it must be a) efficacious and preceptive, inducing a true obligation; hence, for example, counsel, although it is also a certain ordinance of reason, nevertheless is not law; b) firm, stable, and perpetual, namely, in this sense, that it does not cease after a short time or through the death of the legislator, nor is it borne for present men only, but also for future subjects. Yet from this nothing prevents a law from being able to cease from diverse causes, as will be said below. By this perpetuity law is especially distinguished from a simple common precept, that is, one given to a community, which is usually not binding for so long. Nevertheless there are also other differences between law and a common precept.

Moreover, in practice it is not always clearly certain whether some moral obligation imposed upon subjects is a true law or only a precept or statute. But the obligation of some common precept or statute can be equally or even more grave than that of some law. Hence for Moral Theology it often matters little whether some obligation arises from law or from a common precept alone. - A particular precept, which is given to some particular person or family, is plainly distinguished from law of itself.

It is said second: "for the common good,"⁹ by which words is designated the necessary end of any law. Therefore an ordinance of a superior which tends to the evil or detriment of the community is not a true law or ceases to be law. Hence utility for the common good, which every law must intend, is assigned as a necessary property of any law. And so the precepts of tyrants, which tend only to some private good, are not laws.¹⁰ - But the common good can be obtained through laws in two ways: namely, directly and indirectly.

A law directly procures the common good insofar as the actions prescribed immediately benefit the community and only indirectly the subject persons; for example, laws of taxes directly serve the republic, which nevertheless must expend the money obtained from taxes for the utility of the subjects. Some law indirectly imports the common good insofar as it immediately and first causes private good, and by means of private good conduces to the common good; for example, privileges granted to religious are true laws, which indeed immediately and first conduce to the private good of religious, but indirectly also bring great utility to the common good of the whole Church, since religious are bound to use their privileges for the honor and profit of the Church. The same holds concerning the so-called privilege of the "canon" granted to all clerics.

It is said third: "by him who has care of the community." By these words is designated the author of the law or the legislator. For no one is able to establish laws properly so called except he who has care of the whole community, whether he is a prince or some legislative body.¹¹ For it would be illicit usurpation if someone wished to impose some obligation upon the whole community, unless he had care of that community. Hence laws introduced by custom are not true laws before at least the implicit consent of the legislator has acceded, as will be said below n. 278. But a community which is capable of receiving laws must be a perfect community, that is, one of its own right, having in itself sufficient means for arriving at its proper end and independent in its own order from any other society. Hence, for example, since the domestic family is not a perfect community, the father of the family can indeed issue statutes and precepts, but not laws properly so called. In ecclesiastical and civil law those communities which are autonomous, that is, which can establish laws for themselves, are expressly designated.

It is said fourth: "promulgated." Promulgation is the public intimation of law made by the legislator for the subjects. No ordinance of a superior can actually bind subjects unless it has been promulgated. But when sufficient promulgation is present will be said below concerning individual laws. Whether promulgation is of the essence of law or only a condition of law is disputed among authors.¹²

⁷ In the German language it is said: Verordnung, Anordnung; in the French language: ordonnance. The word ordinatio here is to be taken actively and not passively. Yet the ordinance of the legislator causes in the subjects an excellent passive ordination or order.

⁸ S. theol. I-II, q. 90, a. 1. Already Tertullian said: "Law consists in reason."

⁹ S. theol. a. 2. This common good is both temporal and spiritual, namely, the ultimate end (cf. St. Thomas I-II, q. 91, a. 4).

¹⁰ Since law necessarily procures the common good, it also necessarily has certain properties, which are enumerated in this way in the Decree of Gratian (c. 2, D. 4): "Now a law will be honorable, just, possible, according to nature, according to the custom of the country, fitting to place and time, necessary, useful, also manifest, lest it contain anything through obscurity unto deception, written for no private advantage, but for the common utility of citizens."

¹¹ Below n. 185 it will be said who are able to make laws.

¹² S. theol. I-II, q. 90, a. 4 and Billuart, De leg. diss. 1, a. 3. Promulgation more truly does not pertain to the essence of law, which consists in this, that it be a rule of morals. But promulgation is neither the rule of morals nor a part of the rule, but only a manifestation of that rule. Nor does the Code of Canon Law c. 8, § 1, establishing after Gratian, "Laws are instituted when they are promulgated," stand against this opinion. For by promulgation laws indeed are instituted perfectly and as to second act, but they can already have been instituted before in first act by the legislator.

144. Corollary 1. From the definition given it follows that moral law indeed induces a moral obligation, but does not destroy liberty. For liberty by no means consists in license of doing whatever things are willed, but is the faculty of choosing means while the order of the end is preserved. Moreover, sometimes for a private man it is most difficult by his own genius to find means apt for attaining the ultimate end. But if someone observes just laws (whether civil or ecclesiastical), he is certain that he is employing right means for attaining his ultimate end. For any just law renders subjects good and leads them securely to the ultimate good. Since these things are so, even if man had not sinned, moral law would still have been given for the human race.

145. Corollary 2. St. Thomas¹³ enumerates four acts of law, namely, to command, to prohibit, to permit, to punish. For law is instituted for directing human acts to the good of the community. Moreover, for obtaining the good of the community, good acts are to be done, and consequently they are commanded; evil acts are to be omitted, and therefore they are prohibited. But some acts are to be permitted, that is, neither commanded nor prohibited, because otherwise the liberty of subjects would be too much restricted. Finally, transgressors of the law and evildoers are to be punished; for this pertains to the sanction of law. For a law is sanctioned from the fact that it is constituted holy, that is, inviolable; and this indeed is done by punishing transgressors or also by rewarding observers. - Certain modern authors still posit a fifth act of law, namely, to invalidate; for invalidating laws exist, as will be explained below; but this act of invalidating is reduced to the act of punishing, because in reality the invalidated act is some punishment for him who placed that act.

¹³ S. theol. I-II, q. 92, a. 2; cf. L. 7, Dig. 1, 3 in the old Roman law.

146. Divisions. Very many divisions of law are brought forward, and there is no time to enumerate them all here. The principal divisions are:

1. By reason of the author: divine law and human law, according as either God Himself or man was the immediate legislator. But divine law is subdivided:

a) into eternal law, which is the reason of divine wisdom according as it is directive of all creatures to the ultimate end;

b) into natural law, which God has implanted in rational creatures and which is nothing other than the light of natural reason showing what is to be done for obtaining the ultimate end;

c) into positive-divine law, which has been promulgated by special divine revelation and is contained in the Old and New Testament.

But human law is subdivided:

a) into ecclesiastical, which has been given by an ecclesiastical legislator;

b) into civil, which has been made by a civil legislator.

2. By reason of the object: affirmative law and negative law are distinguished,¹⁴ insofar as the former directly gives precepts concerning good things to be done, for example, God is to be worshiped; the neighbor must be loved; - but the latter prohibits certain depraved acts, for example, do not commit theft, do not tell a lie.

The adage must be noted: "An affirmative law binds always, but not for always; but a negative law binds always and for always." The sense of this adage is: An affirmative law does not demand that the prescribed acts be placed at every moment; but a negative law demands that the prohibited act be omitted at every moment; for example, the affirmative law of love toward the neighbor requires that we indeed love the neighbor, but we are by no means bound to elicit acts of love at every moment; but the negative law of not stealing demands that always and at every moment we abstain from theft; for it is never licit to steal.

Other divisions have place only in human laws, for example, invalidating law, penal law, law founded on a false presumption, etc.; and therefore we omit them now, since later in their own places we shall treat of them.

¹⁴ In German: gebietende und verbietende Gesetze.

147. Scholion. On the Name of Law in Sacred Scripture. The name of law is very often used in Sacred Scripture, but not in one and the same sense. Thus, for example, law sometimes signifies an inclination or propensity: "I see another law in my members, fighting against the law of my mind."¹⁵ Sometimes it signifies the work itself prescribed by the law: "None of you keepeth the law."¹⁶ - Sometimes it signifies the book which contains the law; and thus the book of the Pentateuch is usually called the law. Therefore one must attend to the particular sense in which the word law is employed in each place.¹⁷

¹⁵ Rom. 7:23.

¹⁶ John 7:19.

¹⁷ See Billuart, De leg. diss. 1, a. 1.

St. Thomas, I-II, q. 91.

230. Law is divided first and immediately by reason of origin. And indeed by reason of origin together with subject, time, and extension: one law is eternal, supreme, independent, and altogether universal; another is temporal and particular, derived and participated from it in time. This latter, by reason of foundation or necessity together with promulgation, is divided into natural or necessary law, which necessarily arises from the very essences of things and is promulgated by reason, and positive or free law, which, added to natural law and placed beyond it, is placed by the free will of the legislator and needs special promulgation. These are also distinguished by reason of matter: for the things which are commanded or prohibited by natural law are from their nature and necessarily good or evil; the things which are commanded and prohibited by positive law alone are therefore only good or evil because commanded or prohibited. But positive law, by reason of the immediate author, is divine (which by reason of time and perfection is old or new) or human, which is ecclesiastical or canonical, or civil or political; and by reason of origin, promulgation, and expression it is written or preserved by use, that is, introduced by custom.

Between natural law and positive divine law there mediates hypothetical natural law, or natural-divine law, which, namely, participates in both (yet more in natural law than in positive law), because, given some hypothesis which depends upon the free will of God, obligation necessarily arises: thus, given revelation, there necessarily arises the obligation of believing; between natural and human positive law there mediates the law of nations, which in some way participates in the necessity of natural law, and yet has been introduced everywhere by universal custom.

St. Thomas, I-II, q. 95, a. 4.

277. Manifold division.

Each thing can be divided per se according to that which is contained in its notion. But there are many things in the notion of human law, according to each of which human law can properly and per se be divided.

1. For it belongs to the notion of human law that it be derived from the law of nature; and according to this positive right is divided into the law of nations and civil law, according to the two modes by which something is derived from natural law (n. 271). For to the law of nations pertain those things which are derived from natural law as conclusions from principles, such as just purchases, sales, and other things of this kind, without which men cannot live together with one another; this is of natural law because man is naturally a social animal. But those things which are derived from natural law by way of particular determination pertain to civil law, according as any city determines something accommodated to itself.

2. It belongs to the notion of human law that it be ordered to the common good of the city; and according to this human law can be divided according to the diversity of those who give special work to the common good, as priests, princes, and soldiers; and therefore certain special rights are adapted to those men.

3. It belongs to the notion of human law that it be instituted by one governing the community of the city; and according to this human laws are distinguished according to the diverse regimes of cities. One of these is kingdom, when, namely, a city is governed by one, and according to this the constitutions of princes are taken. Another regime is aristocracy, that is, the principate of the best or of the nobles, and according to this are taken the responses of the prudent and also senatus-consults. Another regime is oligarchy, that is, the principate of the rich and powerful, and according to this praetorian right is taken. Another regime is of the people, which is called democracy, and according to this plebiscites are taken. Another is tyrannical, which is altogether corrupt; whence from this no law is taken. There is also a certain regime mixed from these, which is best, and according to this is taken the law "which the elders together with the people have sanctioned" (or the deputies of the people together with the prince) (cf. q. 105, a. 1).

4. It belongs to the notion of human law that it be directive of human acts; and according to this, according to the diverse things about which laws are borne, laws are distinguished on account of the matters about which they are. Thus St. Thomas, q. 95, a. 4.

278. Division of present-day law.

Present-day human laws, according to jurists, are divided according to the diverse persons and things about which they act, and are reduced to a threefold genus:

a) Some constitute public right (the law of the state), which is also called political and administrative right: they chiefly regard the state of the republic, social functions and institutes, and relations between the republic, or its institutes, and citizens.

Thus the Constitution or fundamental law, laws which rule municipalities, provinces, the organization and administration of justice, worship, the army, elections of deputies, the public treasury, tributary and fiscal laws.

1. In Belgium they are called: la constitution; les lois provinciale, communale, de bienfaisance publique, des cimetieres, des cultes et fabriques d'eglise, d'organisation judiciaire et d'administration de la justice, de la force publique (armee, gendarmerie), des notariats, des consulats; les lois de comptabilite, des contributions, douanes et accises, les lois fiscales (d'enregistrement, de greffe, du timbre, sur la succession, la transmission, etc.), les lois sur le tresor public, la dette publique, les monnaies, la banque nationale, etc.; les lois sur les chemins de fer, postes, telegraphes, telephones, etc.; les lois sur les droits politiques, for example, les lois electorales, et de naturalisation; les lois sur l'enseignement et les langues, etc.

b) Some constitute private right, or civil right more strictly so called: they are chiefly concerned with those things which pertain to the utility of individuals, and with rights and relations of citizens to one another. Thus the civil code, the commercial or business code, and various laws concerning dominion of property, even literary and industrial.

2. In Belgium they are: le Code civil (elaborated in the years 1803-04, but modified several times, for example, in 1854, 1859, 1887, 1891, and still more recently; it contains the theory of ordinary right), le Code de commerce (promulgated in the year 1807, but in Belgium almost totally changed in the years 1851, 1867, 1872, 1873, 1874, 1877, 1879, 1883, 1891, 1913, 1919; it contains the theory of the special right of merchants and of acts of maritime and terrestrial commerce); to these are added les lois sur la propriete litteraire et industrielle, sur les mines, les vices redhibitoires, les brevets d'invention, marques de fabrique et de commerce, warrants, etc. To the civil code, which is theoretical, there is added the practical code concerning the mode of pursuing civil and commercial rights: le Code de procedure civile (in the year 1806).

c) Some constitute penal right, which chiefly regard crimes, delicts, transgressions, or contraventions. Thus the penal code, and various penal and disciplinary laws.

3. In Belgium they are: le Code penal (in the year 1810, but in Belgium changed in the year 1867; it determines delicts and penalties theoretically), to which are added le Code penal militaire, le Code disciplinaire et penal pour la marine marchande et la peche maritime, les lois sur la provocation, l'hypnotisme, les offenses et les attentats contre les souverains etrangers, la protection des enfants, le vagabondage, la mendicite, les falsifications, les armes de guerre non prohibees, etc. To the penal code, which is theoretical, there is added the practical code concerning the path to be followed for obtaining the punishment of someone: le Code d'instruction criminelle (1808).

To civil right rather than to penal right pertain the laws which are called social and sometimes are called new right, which, namely, are concerned with the utilities and rights of some class of citizens and with relations between diverse classes.

1. In Belgium they are: les lois sur les livrets de travail (1883), les salaires (1887), le travail des femmes et des enfants (1889), les reglements d'atelier (1896), les unions professionnelles (1898), la securite et la sante des ouvriers (1899), le contrat de travail (1900), le mesurage du travail (1901), les accidents du travail (1903), le repos du dimanche (1905), le conseil des prud'hommes (1910), la journee de 8 heures (1921), les associations sans but lucratif (1921), le contrat d'emploi (1922), etc.

To penal right rather than to civil or administrative right pertain the codes or laws which rule fields and rural estates, forests, hunting and fishing, or the sale of certain things.

2. Thus in Belgium: le Code forestier (1854), le Code rural (1886), les lois sur la chasse et la peche (1882, 1883, 1887, 1891, 1900), la vente des marchandises neuves et les objets mobiliers.

336. Division of ecclesiastical right. - Ecclesiastical right is one thing when liturgical, which directly rules acts of divine worship; another when disciplinary, which directly regards the morals of the faithful: this latter, in the stricter sense, is called canonical.

Both were gradually elaborated, both from the prescriptions of Pontiffs and Councils, and from use and custom afterward confirmed in writing.

This was so especially for liturgical right, which already in ancient times was consigned to books. The things which regarded the Sacrifice were contained in the Roman and Gallican Sacramentaries, in the Antiphonaries or Graduals, in Lectionaries, Epistolaries, and Evangeliaries: from these three the Missal was afterward made. As to the Sacred Office, there existed the Psalter, Antiphonary, Hymnary, Codex of Sacred Scripture, Homiliary, Collectary, etc., from which diverse things were taken and united in the Breviary. For the administration of the Sacraments, Rituals are found, which were also called Manuals or Agendas.

Today liturgical laws are contained in five authentic books: the Missal, Breviary, Ritual, Pontifical, and Ceremonial; and in the decrees and declarations of the Sacred Congregation of Rites (can. 253). For certain matters, however, the Congregation of Ceremonial has competence (can. 254); and for the rites of the Oriental Churches, the Congregation for the Oriental Church (can. 257).

But disciplinary right existed at various times under various forms; recently the right of the Latin Church was codified. Concerning these things, certain more particular points are opportunely noted.

337. Division of older right. - Canon law was slowly formed in the course of the centuries. Before the most recent codification of right, it was distinguished into ancient right, which extends from the age of the Apostles up to the twelfth century, namely up to the Decree of Gratian (1140-1150); new right, which extends from the Decree of Gratian up to the sixteenth century, or to the Council of Trent (1545-1563); and newest or post-Tridentine right.

A. Ancient right. In the first centuries there existed collections and collections of canons, especially those issued by Councils, e.g., by Nicaea, and then also formed systematically. But about the middle of the twelfth century, the Benedictine monk Gratian undertook to collect all canons into one and to arrange a new and single collection of ecclesiastical laws, which afterward was called the Decree of Gratian, and by which, as it were, he laid the foundations of the studies of canon law.

The Decree is divided into three parts: a) the first consists of 101 Distinctions, and each distinction embraces several canons or chapters; b) the second part is divided into 36 Causes, the causes into questions, and the questions into canons; c) the third part, which treats On Consecration, that is, concerning rites and sacred things, is distributed, like the first, into Distinctions and canons.

B. New right is contained in the Corpus Iuris Canonici. It embraces:

1. The Decree of Gratian, which, although amended, nevertheless is not authentic, and therefore has no other authority than the sources themselves from which it was taken.

2. The Decretals of Gregory IX, which by order of this Pontiff were edited by St. Raymond of Pennafort, O.P. (1234). This collection is truly authentic and per se has the force of law; it embraces the letters of Gregory IX and of certain predecessors, and the Pontiff willed that it alone be used in judgments and in schools. It contains five books which are divided into titles, and the titles into chapters.

3. The Sixth Book of Decretals of Boniface VIII, which this Pontiff added (1298), authentically conferred with the same force and authority as the preceding ones. It consists of the same divisions as the collection of St. Raymond.

4. The Clementine Decretals, collected by Clement V and authentically promulgated by John XXII (1317), so that they have the force of law.

5. The Extravagantes of John XXII, so called because they wandered outside the previous collections, collected and edited by private zeal in the year 1325; they do not have the force of law as a collection, but only from the documents themselves which truly emanate from pontifical authority.

6. The Common Extravagantes, seventy in number, of other Pontiffs, collected by private authority around the end of the fifteenth century: they do not enjoy the authentic value of a collection, but only the value of the documents themselves.

C. Newest right is contained in the decrees and canons of general Councils, especially of Trent and Vatican, in the Constitutions of the Roman Pontiffs, in the Declarations of the Sacred Congregations and Tribunals of the Roman Curia, and in the Rules of the Apostolic Chancery.

To these almost innumerable laws there has now happily succeeded the Code of Canon Law, which, ordered by Pius X, was solemnly promulgated by Benedict XV on the feast day of Pentecost in the year 1917, so that it would have obligatory force from the day of Pentecost of the following year, that is, from May 19, 1918.

Things to be noted beforehand. 1. As Lehmkuhl rightly observes, I, n. 225: It is one thing to be subject to law, to be ruled by law; another thing subjectively to be able to sin against law. In the latter case, it suffices that one can act against law with actual advertence; in the former, this is not necessary. Those who sleep are subject to law, although they can exercise no advertence.

2. If we ask: to whom law extends, we do not intend to speak of natural law. For it is evident that all men, from the fact that they exist, are subject to the right of nature; and therefore we said it was wrong to induce anyone to such acts as the law of nature reprobates (cf. n. 124).

We undertake discourse concerning positive law, especially human law.

3. It will scarcely be necessary to add that the things which here will be said concerning law do not hold exactly of a precept. For a precept, since it has been made for a person, accompanies the subject everywhere, and everywhere reaches him: for it clings to his bones.

193. GENERAL PRINCIPLE. By the obligation of positive law there is reached every man who, having attained the use of reason and having been enrolled into a community or society, is properly and in every way subject to the jurisdiction of the legislator.

It is said 1. Every man who has attained the use of reason; and the reason is that law is a rule directing human actions according to the will of the legislator. But everyone who has attained the use of reason, and he alone, can know the law, and can be directed by it in a human way. Therefore.

2. Enrolled into a community or society; and the reason is, because law is made immediately for a community. Therefore, just as it can oblige no one foreign to the community or society, so it obliges all who have been enrolled into it on account of some title from which enrollment follows: namely, on account of the title of baptism, from which follows enrollment or entry into a society universal in every respect, that is, into the Catholic Church; on account of the title of birth, attainment of the right of citizenship, domicile or quasi-domicile, from which follows enrollment or entry into some local society, for example, into a kingdom, into a diocese; lastly, on account of the title of pure election, yet accepted by the society, from which follows enrollment or entry into some particular society, for example, into a religious Order.

3. Properly and in every way subject to the jurisdiction of the legislator; properly is said; and the reason is, because the legislator can impose laws only on those who are truly subject to him. And hence it is why he himself, although he is a member of the community, nevertheless is not subject like the others to the laws which he makes for it; hence also it is why travelers are not held to all the particular laws of some place. They are indeed in the territory, but not of the territory, which latter condition is absolutely required so that one may be properly subject to the legislator, as will be said below, n. 206; in every way is said; and the reason is, because with respect to matter, in which someone is not a subject, he can be bound by no law: thus regulars are not held to all laws of a bishop; and with respect to territory into which a subject betakes himself, he is not always held to the law. Thus those who leave a diocese remain subjects of the Bishop, and nevertheless are not bound by his laws.

With these things having been generally premised, it must be investigated in particular: to what extent, on account of defect of reason, children and others lacking the use of reason are not held to laws; then to what extent, on account of defect of subjection, unbelievers and heretics are not held to the laws of the Church; clerics to civil laws; travelers to local laws; and lastly the legislator himself to his own proper laws.

194. PRINCIPLES. I. Those who have only the habit of reason are not held to positive laws. The reason is clear from the aforesaid, because they cannot be directed in a human way. Therefore it is lawful for them to eat meat on a forbidden day, etc.; to omit Mass on feast days, etc.

195. II. Children using reason are subject to positive laws as regards Confession and Paschal Communion.

This is clear from the celebrated decree Quam singulari, given on August 8, 1910 (A. A. S., II, p. 582), by which all things are reduced to the norm of the Lateran Council.

Note. In order that children be subject to these laws, it is not required that they have in fact reached the age of seven; it suffices that they use reason; or better, to use the words of St. Thomas (3, q. 80, a. 9 ad 3), it suffices that they begin to have some use of reason ... so that they can conceive devotion to this Sacrament. As regards the other things required in children, see what will be said in the treatise on Communion.

III. Children using reason, after the seventh year, are subject to the other laws of the Church, and after puberty, to ecclesiastical penalties.

The first part is clear; for as regards these children all things are verified which are indicated in the general principle enunciated above. Whence rightly the Sacred Penitentiary, March 15, 1837: "Children, after the seventh year, are held to observe the quality of foods prescribed by the Church." Cf. De Angelis, Prael. Jur. can., l. 3, tit. 46, n. 5.

The second part rests on the reason that every censure presupposes contumacy and deceit on the part of the one to be punished, which crimes are commonly judged to be present only in those who have reached puberty.

Note, however (cf. n. 1261), that even those who have not reached puberty incur censures against violators of the enclosure of nuns and strikers of clerics, as is expressly noted in words in the Law. St. Alph., VII, n. 14; ed. G., p. 277; Vermeersch, de Relig., I, n. 310.

We said: children using reason, after the seventh year, are obliged. This obligation must also be maintained if, concerning some child who is seven years old, it is doubted whether he has attained the use of reason; for the use of reason is presumed to be present. St. Alph., III, n. 270; ed. G., I, p. 550; Lehmkuhl, I, n. 230.

But what if children become possessed of reason before the seventh year? There is a twofold opinion. The first, which seems more probable to St. Alphonsus (III, n. 1012; ed. G., II, p. 391, and the place indicated above), affirms. The reason: the laws of the Church oblige without distinction all who are endowed with reason.

The second opinion, also probable, denies. The reason: law is given for cases commonly occurring (cf. St. Thom., 2.2, q. 147, a. 4). We can safely follow the latter opinion, to which the response of the Sacred Penitentiary communicated above lends support. Nevertheless, the first opinion is much to be commended, so that children, from their first age, may become accustomed to the yoke of the Lord.

196. III. Drunken persons, and those delirious for a time, remain subject to positive laws. The reason: because the law which reached them when they had arrived at the use of reason perseveres in retaining its force upon them, as still enjoying reason habitually.

Whence, if in the time of drunkenness or delirium they do something prohibited by positive law, for example, if they use forbidden foods, they violate the law materially; although, on account of defect of actual knowledge, they are excused from formal sin. "For it is one thing not to be held to law, as children and the insane are not held to laws; another thing to be excused from law, as the drunken, the ignorant, and those sleeping are excused. Hence it is a sin to offer meats on a forbidden day to the second group, but not to the first; just as also it is a sin to incite all those persons to something evil by natural right" (I, n. 153, 155; ed. G., I, p. 131).

197. As we have already observed, men are aggregated to the Church, and are subjected to her jurisdiction, only through baptism.

PRINCIPLES. I. Unbelievers, Jews, and catechumens are not held to the laws of the Church. Whence, scandal and contempt of law, or public disturbance of festal quiet, being excluded, it is not illicit to offer meats to the same persons on days of abstinence, to impose servile works on feast days, etc.

They themselves, however, are held to embrace the Evangelical law and to receive baptism, as soon as they have been sufficiently instructed concerning our faith. Indeed, although they cannot be compelled to embrace the faith, nevertheless they can be driven to hearing an exposition of the faith (I, 154, 2.; II, 18; III, 272). Cf. below n. 437.

198. II. Heretics, apostates, schismatics, and the excommunicated, of themselves, are held to the laws of the Church. For these, although they are rebels, nevertheless always persevere under the dominion of the Church. The same must be said of heretics, concerning the validity of whose baptism there is doubt; for, in the external forum, one must stand for the validity of the act (cf. n. 51).

It was said of themselves: 1. because many heretics do not know, although they know the obligation of returning into the bosom of the Church, that they are held to the laws of the Church. Whence, they are easily excused on account of ignorance; 2. because often there are present circumstances on account of which it must be judged that the Church does not will to oblige heretics by her laws, because the observance of them would bring great inconveniences upon them. And this will of the Church is to be presumed with respect to those laws which directly tend to the sanctification of souls, such as laws of fasting, feast days, etc. For in these things the Church acts more mildly, lest sins be multiplied.

It is otherwise with respect to laws which have been made for restraining abuses and protecting public order, for example, concerning impediments of matrimony. For that heretics are held to these laws has several times been declared by ecclesiastical authority, explicitly or at least implicitly (De Angelis, l. I, tit. 2, n. 13; Lehmkuhl, I, n. 228).

See what Wernz observes upon this opinion (I, n. 103), where he entirely rejects the immunity of heretics which we admit for some laws.

An inferior, even if he is a legislator, can do nothing against the law of a Superior. From this axiom, which presides over the whole matter, the following things follow.

199. PRINCIPLES. I. Regulars exempt from episcopal jurisdiction are not held to the laws of the Bishop, even if they dwell in his territory. The reason is, because through exemption, as soon as they have fulfilled the required conditions, they are no longer subject to his jurisdiction.

Except the cases excepted by right itself, for example, concerning censures and interdicts issued by the Bishop, or concerning feast days appointed by him for them, as was decreed by Trent (Sess. 25, c. 12). See particular cases n. 2189. Cf. St. Alph., de Privil., n. 72; ed. G., I, p. 224.

200. II. Clerics are held to civil laws, insofar as these laws are not opposed to ecclesiastical immunity still in force. The reason for the exception is, because laws which violate immunities are unjust, since they go beyond the power of the civil legislator (cf. n. 149, 2.).

But clerics are bound to the other laws as to their directive force, because they too are members of the political community. Nor indeed, as to these same laws, can the civil legislator exercise coercive force upon clerics, because by this exercise also ecclesiastical immunity would be violated.

Concerning the immunity of the Supreme Pontiff from civil jurisdiction, see what Lehmkuhl has, I, n. 231. The saying of Leo XIII is known, when he was Bishop of Perugia: "In the first centuries," he says, "Pontiffs were subjects as to fact, not as to right." Cf. pastoral letters concerning the temporal principate of the Roman Pontiff.

201. It was said 1.: Insofar as they are not opposed to ecclesiastical immunity. Now this immunity is threefold: personal, local, and real.

Personal immunity comprehends the exemption of clerics: a) from the lay forum, in both civil and criminal causes; b) from those burdens which are considered vile or sordid, such as the repair of roads and bridges; c) from military service, from the reception of soldiers, and other prestations by reason of military service; d) from tutelage and curatorship, and generally from those things which either do not befit the holiness of the clerical state, or cannot be composed with the offices annexed to the same (cf. n. 2224 ff.).

Local immunity consists chiefly in two things: a) in the prohibition lest profane acts be carried out in sacred places, especially such as are more gravely repugnant to their holiness; b) in the right of asylum, by which it is provided that those fleeing to sacred places not be drawn out from them, except under certain conditions (cf. n. 582 and n. 1332).

Real immunity is the exemption of goods, both of the Church and of ecclesiastics, from taxes and burdens imposed by secular power. How far this extends, see among the canonists.

It was said 2.: Insofar as they are not opposed to ecclesiastical immunity STILL IN FORCE. For the Church can renounce the exercise of her right, either expressly, for example, through a Concordat, or tacitly, as regards this or that immunity, for the good of peace. Wherefore the Concordats of the Holy See with various kingdoms are to be inspected. But tacit renunciation is not easily to be presumed; because the things on which it is presumed to rest are commonly not done spontaneously, but unwillingly (Lessius, de Just., l. 2, c. 33, dub. 3).

202. IT IS ASKED. How ought clerics, or even laymen, conduct themselves, lest they seem to wound the RIGHT OF IMMUNITY, when laws which stand against the same are proposed to them as to be observed?

Resp. I. IN GENERAL: 1. Against laws of this kind one must protest, whenever, if protestation were omitted, scandal would have to be feared; 2. One must yield to force in such a way that open acts of violence are not provoked, which serve only to multiply injuries to be inflicted on the Church.

II. IN PARTICULAR: 1. A pastor, or inferior cleric, likewise a civil official, should have recourse to the Bishop, unless the matter concerns a case in which either there is danger in delay, or a contrary custom has grown up. 2. The Bishop "should believe that he will do abundantly enough for his office" (says Benedict XIV, de Syn., l. 9, c. 9, n. 12), "if he takes care lest the secular prince ever arrogate to himself the right of sacred things, that is, lest ... he mix himself in causes ... merely ... spiritual and ecclesiastical"; likewise, lest the lay judge also invade that part of immunity which has thus far remained untouched.

Schmalzgrueber, l. 2, tit. 2, n. 16, 19; Wernz, IV, n. 177; Feije, n. 204; Bucceroni, I, n. 198. Attend especially to the causes argued before the Tribunal of the Sacred Roman Rota.

203. Things to be noted beforehand. I. In the broader sense, the words newcomer, traveler, and wanderer designate promiscuously any FOREIGNERS.

In the strict sense, a newcomer is said to be one who, outside the place of origin, has a domicile or quasi-domicile. To him is opposed the inhabitant, who remains in the place of his origin. A traveler is he who, having a domicile or quasi-domicile somewhere, remains accidentally in another place, although for a long time, for example, to visit a friend, and does not have the intention of dwelling there. A wanderer is said to be one who has nowhere a domicile or quasi-domicile, but transfers himself from one place into another.

It can happen that someone ought for the moment to be called a wanderer, namely when he has left his old domicile, and has not yet acquired even a quasi-domicile, for example, if someone were to migrate from Europe into the regions of America.

II. ON DOMICILE. Domicile is habitation in some parish,¹ with the intention of remaining there perpetually, unless something calls one away from there. In order that it be acquired, two things must be present at the same time: 1. that someone begin to dwell somewhere, and 2. that he have the intention of remaining there perpetually.

If such intention is not clear, it is judged in the external forum that this mind is or was present, either by ten-year or assiduous habitation, when the will of departing has not been signified, or by the transfer of the greater part of goods, or by purchase or building of a house, or by assertion under oath. Cf. A. A. S., IV, p. 328, 676 ff.

In order that domicile be lost, it is required that the two aforesaid things be absent at the same time. Neither departure alone, nor the intention alone of not remaining, brings about the loss of domicile.

Note. Besides the domicile which we have just described, which they call voluntary, there is given legal domicile, which someone necessarily acquires from the disposition of law. That truly is determined for wives, who acquire the domicile of the husband, and retain it after the death of the husband, until they have acquired another; for wards, who obtain the domicile of guardians; for children, whose domicile, until they become of their own right, is the same as that of the parents, and remains the same even after majority, until they have acquired another, the former having been left behind.

Thus civil law, whose dispositions concerning legal domicile ecclesiastical law holds ratified: from which it follows that all who have legal domicile cannot acquire another true domicile elsewhere, though they can acquire a quasi-domicile. As regards others, who do not have legal domicile, no ecclesiastical law prohibits them from choosing several domiciles (A. S. S., vol. 15, p. 222), provided they dwell almost equally in all. Several civil rights concede the same, for example, German Civil Law, § 7.

III. ON QUASI-DOMICILE. Quasi-domicile, which civil rights do not recognize, is habitation in a place together with the intention of dwelling there for the greater part of the year.

It is acquired by the very fact that habitation with such an intention begins, nor is it required that someone in fact have dwelt in the chosen place for some time.

But note: habitation is required, nor is it sufficient that someone pass the whole day for months or years in a workshop, about to return in the evening to his own or his paternal house. A fortiori, it is not sufficient that, after the manner of one traveling, he migrate from region to region, from place to place.

It was said: for the greater part of the year, and thus the Sacred Congregations express themselves (Holy Office, June 7, 1867). By these words there is commonly intended the mind of dwelling for six months (cf. Noldin, I, n. 152). Cf. also A. S. S., 31, p. 346. Therefore he who with that intention has begun habitation has acquired quasi-domicile in the parish, so that, as regards fulfilling laws and receiving sacraments, he becomes subject to the competent legislator.

If a doubt arises concerning the mind of remaining for the greater part of the year, in the external forum it is judged to be present if various indirect indications are given: for example, habitation for a month, rental of a house for six months. The mind can also be proved directly by oath.

Note. 1. In order to contract matrimony, the Sacred Congregation of the Council declared, in the celebrated decree Ne temere, that one month's stay suffices. Therefore then the question is no longer of domicile or quasi-domicile, since no mention is made of the mind of remaining there for a longer time of the year. This declaration confirms the practice introduced in the United States of North America by Leo XIII in the year 1886.

2. Authors dispute whether someone can have two quasi-domiciles, and whether children acquire the legal quasi-domicile of parents (Wouters, op. cit., p. 102 ff.). Whatever may be the case concerning the controversy, it is certain that nothing stands in the way of children choosing a quasi-domicile for themselves, as many servants or workers, students, soldiers, public officials, etc., do.

3. As regards the sick received in a hospital, if a question is raised concerning their domicile or quasi-domicile, it must be seen whether they are admitted for a brief or long time, whether after an incurable illness, so that a true judgment can be made.

204. PRINCIPLES. I. Foreigners are obliged, just as the inhabitants of the place, both by the laws of common right and by the laws which the security or convenience of the place wills to be observed by all.² The reason for the first is, because all are subject to the common legislator. The reason for the second is, because the common good of the place, and right order, impose the law on all (I, 156).

Wherefore, local law, besides the necessity of avoiding scandal, binds all, if it regards: a) the form and solemnity of contracts, because the place rules the act,³ so that confusion may be avoided (A. S. S., vol. 32, p. 363); b) the vindication of a delict committed against common right, because the delinquent obtains the forum where he committed the delict; c) dangerous things to be carried away, or directly the governance of travelers.

We said: just as the inhabitants of the place, that is, neither more nor less, since right order requires this. Hence: 1. Foreigners enjoy the privileges of the place, nor are they bound by a law of common right, if it has been abrogated in this place; or if a contrary custom is in force, or an exemption, for example, in monasteries of regulars, or finally a dispensation which affects not persons, but the territory itself.

2. They do not enjoy the privileges of their homeland, because they have lost these by departure. Wherefore they are held to the common law, for example, of fasting or of a universal feast, as it is observed in the place in which they dwell, or through which they pass. In this case that saying holds: If you shall have been at Rome, live in the Roman manner; if you shall have been elsewhere, live as there.

He, however, who has already satisfied the common law in his homeland, more probably is not held to satisfy it again, if he comes to a place where the same precept urges later. Thus an Italian who fasted in his homeland on the vigil of St. Peter is not held, scandal being set aside, to fast again in France, where the fast is transferred to the following Saturday; because there is not given an obligation of fulfilling the same precept twice (Gury, I, 97, 7.).

But what if someone, while they are fasting in his homeland on account of the vigil of a universal feast, is staying in a place where the fast is transferred to the following Saturday, and returns to his homeland before Saturday? Some say that he ought to fast once, wherever he may remain; others judge that he can use epikeia, and that the law ought not to be imposed on him, provided he has not arranged all things thus on purpose. Cf. Noldin, I, n. 148; Lehmkuhl, I, n. 236.

205. II. Newcomers are released from the laws of the homeland from which they departed; but they are held to the laws of the place in which they establish domicile or quasi-domicile, as soon as they have arrived there. The reason for the first is, because local law does not go beyond the territory. Except if someone physically absent is reputed morally present by a fiction of right, for example, by reason of the office which he bears, or the goods which he possesses in the homeland. For then actions or omissions are judged to be done in that territory, or to have effect there (Bouquillon, Theol. mor., n. 106, 243). The reason for the second is, because newcomers, when they have acquired at least quasi-domicile, are now subject to the jurisdiction of the Superiors of the place; therefore they are also held to the laws, just as the inhabitants themselves (I, 156; ed. G., I, p. 136).

206. III. Travelers and wanderers are regularly immune both from the laws of the homeland and from the laws of the place in which they are staying. The reason for the first is the same as for newcomers, because they are outside the territory of the legislator. The reason for the second is both because laws oblige only subjects, such as travelers are not, since they are by no means subjected to the jurisdiction of the Superior of the place on account of that brief stay; and because he is not said morally to dwell in some place who does not remain there, nor has the mind of remaining, for the greater part of the year. This opinion, more probable to St. Alphonsus, has now already become more common and is entirely safe in practice. See the Holy Doctor, l. c. (ed. G., I, p. 135). Except if a Superior of higher order willed particular laws to be observed also by travelers, for example, that an imposed prayer be said.

We said: regularly; for travelers are held to the laws of the homeland, not only in the same cases as newcomers, but also in the case in which a special prohibition of departing stands in the way, such as is had in absolving reserved cases (cf. n. 1278). But with such a prohibition excluded, which would bind the subject after the manner of a personal law (A. S. S., vol. 36, p. 222), each one can leave the homeland or betake himself to an exempt place, even to exempt himself from the law (see St. Alphonsus, l. c., n. 157); because then not fraud, but the condition of the place favors the one departing.

The general rule can be expressed briefly in this way: In order that someone actually be obliged to a local law, it is regularly necessary that he be in the territory and of the territory; in order that he enjoy a local privilege, it is required and suffices that he be in the territory.

207. From these things you resolve: 1. If in your territory there is a special feast, and you are going to set out for another place where there is no feast, you are not held to hear Mass before departure, provided you arrive outside the place where the precept is in force before the hour of the last Mass, at which time the precept would already urge.

2. If in your territory there is a fast, and on the same day you go to a place where there is no fast, you can breakfast in the morning, but not likewise eat meats. The reason for the first is, because, since fasting is indivisible, as consisting in one meal, he is not held to fast to whom several meals are conceded on the same day. The reason for the second is, because abstinence is divisible, and must be observed for the whole time in which one remains in the place where the law obliges.

3. Existing in the morning in a place where there is no fast, you can eat meats there, even if about midday you are about to return to a house where there is a fast; at home, however, you are held to abstain from meats (I, 157).

208. Note. The things said above hold concerning laws. Things are otherwise if we consider precepts alone. For these follow subjects wherever they may have been, as we have already noted. It must be noted besides that the best mode of avoiding anxieties of conscience, especially if someone ought to undertake a long journey, consists in this, that a personal privilege be acquired (cf. n. 243). For we can use this everywhere (Noldin, I, n. 134; Genicot, I, n. 119).

209. There is a twofold genus of legislators. For some, as the Pope, a bishop, a monarch properly so called, enjoy absolute authority. Others, as senators, deputies, and the king himself in representative government, make one moral body, by which legislative power is exercised. Hence it is established:

I. In representative States, such as republics and constitutional kingdoms, the legislators and the president of the government himself are subjected to laws made by common counsel and will. And the reason is, because the legislator is properly not the singular person, but the moral body itself, which is superior to any member. The same holds for Bishops, with respect to laws which have been established in a provincial or general Council.

II. In the Church and in a pure monarchy, a singular legislator is not properly held to his own laws; because he is subject neither to himself nor to his predecessors.

He is not held to them: 1. neither as to coercive force, because no one is coerced by himself, and from another source it is repugnant that a Superior be judged or punished by an inferior; 2. nor as to preceptive force, because no one owes obedience to himself.

Nevertheless he is held as to directive force and indirectly, as the natural law proclaims, insofar namely as, from a certain equity, he ought to conform himself as head to the members. But it is probable, scandal being set aside, that he is held only under light matter. Yet this is limited if the law has been made concerning the taxing of a price, or concerning the invalidation of a contract; for even the prince is held to stand by such a law, lest he wound justice (I, 154; H. Ap., II, 28). See what Lehmkuhl has, I, n. 237.

109. Principles. - I. The subject of law is subjects actually obliged, or to be obliged, by law. I say: obliged or to be obliged; for there are those who deny that infants and the perpetually insane are subject to the natural law, since it has not been promulgated to them, as they lack the use of reason. Those who affirm respond that rational nature, which is in them also, and the natural law cannot be separated from one another, and therefore that they are subject to it in first act. But all agree that it is wicked to provoke them to blasphemies, etc.; and this logically only those can admit who, with St. Alphonsus,¹ affirm that infants and the insane are held by the natural law in first act.

110. • II. All and only subjects habitually capable of reason are subject to human law. - The reason of the first is that law cannot be made except for subjects. The reason of the second is that men habitually lacking the use of reason cannot be directed by laws.

From the former part of this principle it follows that infidels, or non-baptized persons, are not obliged by ecclesiastical laws, because they are not yet subjected to the jurisdiction of the Church. Nevertheless they are held to enter the Church, since they are subjected to divine law, in this case the Evangelical law. On the contrary, it follows that heretics, schismatics, and any other baptized persons, even if not Catholics, are held of themselves by ecclesiastical laws, because, although they are rebels, they do not cease to be subjects of the Church.² I said: of themselves; because 1° they almost do not know that they are held to those laws, even if perhaps they already know the necessity, that is, the obligation, of entering the Catholic Church; in which case in practice they do not sin; and 2° sometimes circumstances are present, with which concurring the Church must be judged not to will to oblige heretics by its laws, or by some certain law, namely lest they be more and more stained with sins.³ In a word: it is one thing that the Church can oblige heretics by all its laws, another that she wills to do so. In practice, heretics returning to the bosom of the Church are not to be forced in confession to accuse themselves of not hearing Mass of precept or of not observing the law of fasting.⁴

It likewise follows that excommunicated persons are bound by the laws of the Church, although they have been cast out from the Church; otherwise they would report advantage from their malice. Besides, it rests with them that they be loosed from excommunication.

From the latter part of the principle it is clear that infants and the perpetually insane are not subjects of human law. Therefore it is licit to give them meats to eat on days on which those meats are prohibited by the Church. Yet this is not expedient with little children who before the seventh year begin to have some use of reason, although very imperfect. For it is of the greatest importance that from their earliest years they become accustomed to carry the yoke of the Lord. Nevertheless the insane for a short time, or those who have many lucid intervals, the drunk, and those sleeping, are subject to law, because they are in the habitual state of the use of reason. Hence it is not licit to give them meats on prohibited days.¹

111. • III. Only men actually using reason can morally violate a law, because, knowledge being lacking, no one can sin.

112. Questions. - Quaer. 1° Are clerics held by civil laws?

Resp. Affirmatively, as to their directive force, excepting however those which are repugnant to ecclesiastical immunity, still in force. For all parts of the political community are obliged by political laws; but clerics are parts of the political community. Therefore.

I said: 1° excepting however those which are repugnant to ecclesiastical immunity. This is distinguished as threefold, namely personal, local, and real.

Personal immunity comprehends the exemption of clerics 1) from the lay forum in causes both civil and criminal;² 2) from taxes, to which their goods are not subject, both ecclesiastical goods and goods acquired in any other way whatsoever;³ 3) from those burdens which are judged base or sordid, as the repair of roads and similar things; 4) from military service, from the reception of soldiers, and other prestations for the sake of military affairs; 5) from tutelage and curatorship, and generally from those things which either do not befit the sanctity of their state, or cannot be combined with the offices annexed to that state.

Local immunity consists especially in two things, namely 1) in the prohibition that in sacred places certain acts be performed, namely profane acts, especially such as more unbecomingly oppose their sanctity;⁴ 2) in the right of asylum, by which provision is made that those fleeing to sacred places or religious houses not be drawn out from them, except under certain conditions.⁵

Real immunity, or the immunity of ecclesiastical goods, is from taxes and burdens imposed by secular power. How far this extends, see, if you please, in Craisson.⁶

To ecclesiastical immunity pertain propositions 30, 31, and 32 condemned by Pius IX in the Syllabus. See p. xl.

I said: 2° which are repugnant to ecclesiastical immunity still in force; for the Church can renounce its right as to this or that immunity either expressly, as by a concordat, or tacitly. But tacit renunciation is not easily presumed, since ordinarily it rests on facts posited under compulsion, not voluntarily. Hence:

113. • Quaer. 2° What must 1° a Bishop, 2° a Cleric, 3° a civil Official do, lest they seem to injure the right of ecclesiastical immunity, when they are forced to observe laws opposed to the same?

Resp. I. Generally, 1° They are bound to protest against laws of this kind, if, every protestation being omitted, scandal would have to be feared. Nevertheless this is not to be feared where the faithful know that impossibility of acting otherwise is present. 2° One must yield to force, without provoking open violences, which serve only to multiply offenses of God and to inflict injuries on the Church.¹

Resp. II to the individual points. To the 1st. "Let him believe that he will do more than enough for his office," says Benedict XIV,² if he takes care 1° "That the secular prince never arrogate to himself the right of sacred things, that is, that he not . . . involve himself in causes merely spiritual and ecclesiastical." 2° "That a lay judge," or secular power, "not invade also that part of jurisdiction" or immunity "which up to now perseveres intact."

To the 2nd. 1° Unless it is a question of a case in which either danger is in delay, or a contrary custom has already become established, let him recur to the Bishop.

2° "Where a difficulty arises with a man even secular and concerning temporal things, let them not call anyone into law, or voluntarily present themselves when called, unless the matter cannot be settled otherwise."³

3° "He despises the honor of the Church and tramples the sacred canons under foot, whoever brings a lawsuit against an ecclesiastical or Religious person . . . concerning a matter of strictly ecclesiastical right . . . before a profane judge,"⁴ namely as plaintiff and not simply as defendant.

To the 3rd. Let him act as was said concerning a cleric at the 2nd under 1°; for neither can he act otherwise without grave harm to himself or even to Religion, or without danger of the loss of an office perhaps to be committed to a non-Catholic or wicked Catholic. More concerning a civil official in its own place.

114. • Quaer. 3° What immunities can the Church generally use in the Federated States without becoming liable to the penalties of civil laws?

Resp. a) As to personal immunity, clerics are not distinguished from other citizens, except as to tutelage and curatorship in Louisiana.¹ For the rest, in the remaining States no one at all is compelled to this. Thus likewise they are not held to be among the number of jurors ("members of the jury"). b) As to local immunity, only that prohibition of the Sacred Canons by which provision is made that certain acts not be performed in sacred places can be urged; but not the right of asylum. c) As to real immunity, see the things to be said in the Treatise on Right and Justice, n. 620.

115. • Quaer. 4° Are children held to ecclesiastical laws as soon as they have attained the use of reason, although they have not yet completed the seventh year?

Resp. The sentence is twofold. Those who affirm rely on principle II (n. 110), according to which every man using reason is by that very fact subject to laws. Those who deny bring this reason, that the Church is judged to attend to those things which commonly occur, which to St. Alphonsus² does not seem improbable, except when it is a question of children who have sinned mortally; for these are held to the precept of annual confession, by which all who have arrived at the years of discretion are obliged.

116. • Quaer. 5° Are travelers held by the laws of their own territory?

Resp. Negatively, unless by a fiction of law they are judged still to be in their own territory. The reason is that law, by this very fact that it regards a community, is territorial, and in this it differs from a precept, because law does not affect persons except through territory (n. 98, 5°); and this has force also concerning a law of common right, when a traveler is staying where it does not flourish. Thus, if in your own territory there is a fast, and on the same day you go to a place where there is not a fast, in the evening you will be able to dine. Likewise, existing in the morning in a place where there is not a fast, you will be able to take breakfast and eat meats, even if about noon you are going to return home, where there is a fast. At home, however, you are certainly bound to abstain from meats, but not from a second or further eating; for the precept of abstinence is divisible, but the precept of one eating only is indivisible.¹ For the same reason, if you are about to leave a place where there is a fast and are going on the same day to arrive at a place where there is not a fast, in the place from which you depart you will be able to take breakfast, but not however to eat meats.² Thus also, if in your territory there is a special feast, and you are about to set out to another place where there is not a feast, you will not be held to hear Mass before departure, provided you are going to arrive outside the place where the precept flourishes before that hour at which the last Mass will be celebrated there. The reason is that on one side the precept does not oblige either that you wait, or that from the many Masses which are celebrated you hear some one which is said before the last; but on the other side, once you have arrived outside your territory, you are no longer held by its laws. But if only one Mass is celebrated in your territory, and you are going to depart after it, you are held to hear this Mass.³

I said: unless by a fiction of law they are judged still to be in their own territory. Thus a non-resident pastor is judged to offend in his own territory, and incurs the penalties established there against non-residents. (1) p. 478.

Some also except the traveler going out from his own territory for this reason, that he may withdraw himself from the law, because, they say, he would act in fraud of the law; but "his fraud ought to patronize no one," as the adage of law has it. But St. Alphonsus,⁴ with others, does not admit this exception; and rightly indeed, since no one seems to act by fraud who uses his own right, as another adage of law has it. But that traveler uses his own right; for the law does not prohibit going out from one's own territory, but only prohibits its precepts from being violated by those who are in the circumference of the law, or in the territory in which it flourishes. Nor does it make to the point that he who leaves the territory with precisely this mind, that he contract marriage clandestinely in a place where the decree of Trent concerning the necessary presence of the parish priest and two witnesses does not flourish, contracts invalidly; or that one cannot be absolved from sins reserved in his own territory, who tends to a place where they are not reserved with this principal end, that he may be absolved from them. For in each case he truly acts in fraud of a law expressly prohibiting this: namely, in the former, in fraud of the Constitution of Urban VIII; in the latter, in fraud of the Constitution of Clement X.

117. • Quaer. 6° By what laws are travelers held in the place in which they are staying?

Resp. I. They are held 1°, as is clear in itself, by the natural law of avoiding scandal; for natural law obliges everywhere. Therefore he would sin who violated the particular law of some place in such circumstances in which that violation would cause scandal. Thus, for example, a priest would sin who with scandal of the people did not observe a law made for the clergy of the diocese through which he passes.

2° By laws of Common Right, although not flourishing in their own territory; for the reason of the privilege, or legitimate custom, on account of which it does not flourish in their own territory, affects only that territory and persons staying in it through the territory, and therefore ceases when the territory has been left. Hence a New Orleanian at Baltimore on the feast of the Circumcision of the Lord is held to assist at Mass.

3° By the laws of contracts, and this so that confusion may be avoided. Hence that saying: "the place rules the act." Cf. n. 1612, q. 1°.

4° By laws punishing crimes; for the delinquent obtains the forum of the place where he offends. See, however, n. 1667, q. 4°.

5° By laws regarding the advantages of that place. L. I, n. 156 § end. You have an example of this rule in n. 635, 1°.

6° According to St. Alphonsus,¹ by the particular law of the place in which they are staying, if the same particular law flourishes in their own territory. Yet this obtains rather by force of custom than of principles.² (1) p. 478.

Resp. II. They are more probably not held by the other laws of the place in which they are staying, because laws do not oblige except subjects, such as travelers are not. For by law no one is subjected to the power of another except by reason either of crime, or of contract, or of domicile or quasi-domicile, or by reason of a thing situated in the territory, or finally in certain cases by reason of origin.

Notes to preceding text - note sequence 1.

1 L. I, 156. | 2 Ibid., 154. | 3 Tarquini, Jur. Eccl. Publ. Instit. n. 64, 65. | 4 Frassinetti, Compendio della Teologia Morale, note 7.

Notes to preceding text - note sequence 2.

1 L. I, 156. | 2 S. Alph. de Privil. n. 19. | 3 Ibid., n. 20. | 4 Craisson, Manuale, n. 4828-4837. | 5 Craisson, n. 4838-4840, and S. Alph. de Priv. n. 25-28. | 6 n. 5288-5291.

Notes to preceding text - note sequence 3.

1 Frassinetti, Comp. della Theol. Mor. n. 136. | 2 De Syn. L. IX, c. 9, n. 12. | 3 Conc. Pl. Balt. II, a. 155. | 4 Ibid. and a. 156.

Notes to preceding text - note sequence 4.

1 Civ. Code of Louisiana, art. 292, ad 7. | 2 L. I, 155. IV, 270, 1012.

Notes to preceding text - note sequence 5.

1 L. I, 157 ad 4. | 2 Ibid. ad 5. | 3 Ibid. ad 6. | 4 Ibid. n. 157.

Notes to preceding text - note sequence 6.

1 L. I, 156. | 2 Bonac. Th. Mor. D. I, q. I, P. III, n. 52. Suarez, de Relig. Tr. II, L. II, c. XIV, n. 15.

Law is distinguished in many ways; for it is:

1st. Divine or human, according as it has God or man as its immediate author.

2nd. Natural or positive, according as it is intimated by rational nature itself, or by a positive act of the legislator.

3rd. Ecclesiastical or civil, according as it is made by ecclesiastical or civil power.

4th. Moral or penal or mixed, according as it obliges under guilt alone, or under penalty alone, or under both at the same time.

5th. Affirmative or negative, according as it commands the placing of an act, or prohibits it. Hence it is also called preceptive or prohibitive.

6th. Simply prohibiting or invalidating or permitting, according as it renders an act illicit only, or invalid, or prohibits the agent from being disturbed.

Those laws alone must be held invalidating or inhabilitating by which either an act is expressly or equivalently established to be null, or a person to be incapable (Can. 11).

7th. Favorable or odious, according as it grants a benefit or favor, or brings in a burden or grievance.

8th. Written or preserved by use, according as it is made by written mandate, or introduced and preserved by custom alone.

9th. A personal or territorial law, according as it directly regards the person and then the territory, or directly the territory and then the person.

§ 2. A law is not presumed personal, but territorial, unless something else is clear (Can. 8).

It can, however, be both territorial and personal; a clear example of this was the chapter Tametsi of the Council of Trent.

You will ask 1° what human law is.

I answer. Human law is rightly defined : « An ordination of human reason consonant with natural law, for the common good, promulgated by him who has the care of the community. » All the parts of this definition, except the second, are evident from the definition of law in general.

It is said therefore to be « consonant with natural law »¹, because every human law is derived from the natural law, not indeed as a necessary conclusion, or as having with the principles of natural law a necessary connection — otherwise it would belong to the natural law itself — but as conveniently and probably deduced from them, and as their determinant. ¹ Hic q. 95, a. 2, o.

You will ask 2° whether human laws are necessary.

I answer. That they are necessary²; not indeed simply and absolutely, but so that, the obstinacy, corruption and proneness of men to evil being taken into account, without human laws neither the multitude could have and preserve virtue, nor the commonwealth peace. ² Ibid., a. 1, o.

You will ask 3° of what sort human law ought to be.

I answer. In the words of Isidore, lib. V Etymol., c. 21ª : « The law shall be honest, just, possible according to nature, according to the custom of the country, suited to place and time, necessary, useful, manifest also, lest through obscurity it contain anything ambiguous, written for no private advantage, but for the common utility of citizens. » And this is received in canon law, dist. 4, c. 2.

You will ask 4° how human law is divided.

I answer. The common and received division of human law is into civil and ecclesiastical. Civil laws are for the most part contained in the body of civil law, ecclesiastical laws in the body of canon law. Concerning both certain things are here to be explained, especially for the benefit of beginners. Whence

You will ask 5° what is meant by the Corpus of canon law.

[I answer. With respect to periods of time, ecclesiastical law, which is called canonical, because it is constituted chiefly of canons or disciplinary rules, is divided into ancient law, new law and newest law.

I. — Ancient law flourished from the beginnings of the Church to the middle of the eleventh century. Its sources and monuments are:

The Canons of the Apostles. Protestants denied that ancient discipline was contained in these canons. Today indeed all learned men confess that they consist partly of rules which the Apostles handed down in words, partly of the customs of churches, partly of the decrees of councils celebrated in the earlier centuries in the East. Since certain things are found in these canons contrary to the tradition of the Church, the Latin Church received only the first fifty, without deciding anything whatever about their origin. But the Eastern Church received and venerated all eighty-five entire, as if issued by the Apostles themselves.

The Apostolic Constitutions. This collection was distributed into eight books. It is undeservedly attributed to St. Clement of Rome and even to the Apostles. Probably it was published in the fifth or fourth century. These constitutions are commended by St. Epiphanius; and indeed, since they are most ancient, they comprise many useful things. Afterwards however they were corrupted by heretics in many places, whence certain authority cannot be assigned to them.

Greek collections. 1° The Chalcedonian collection, so called because mention of it is made in the acts of the council of Chalcedon. It contained, observing the order of times, the canons of the general and particular councils of Nicaea, Ancyra, Neo-Caesarea, Gangra, Antioch, Laodicea and Constantinople I; to which were added, in the middle of the sixth century, the canons of the Apostles, of Sardica, Ephesus, Chalcedon, and the rules of St. Basil. — 2° The collection of John Scholasticus. John, a presbyter of Antioch, surnamed Scholasticus, arranged the preceding canons according to the order of subject-matters, and having been made bishop of Constantinople, added civil laws drawn especially from the code of Justinian. Since he was a favorer of Nestorianism, his collection is suspect. — The Council in Trullo, or Quinisext, so called because it was celebrated in the Trullo of the palace of Constantinople and wished to supply what seemed lacking in the disciplinary canons of the fifth and sixth ecumenical councils. Among these canons the Roman Church sanctioned only those which were not adverse to the laws of the preceding general councils and to approved morals. The rest therefore are destitute of all authority. — 4° The collection of Photius. In the ninth century Photius, author of the Greek schism, annotated the oriental collections, joining imperial laws to ecclesiastical canons, as John Scholasticus had done before; whence arose a new Nomocanon, which among the Greeks has always been held in highest honor and price, although justly suspect to Catholics. — 5° There may be added the collections of lesser moment of Simeon Logotheta, Alexius Aristenus, Arsenius, Harmenopulus and others, of which to speak singly would be long and unnecessary. All these monuments of ecclesiastical law among the Orientals were lately collected at the command of Pius IX by Em. cardinal Pitra.

Latin collections. — 1° At first no canons were acknowledged but those of Nicaea, under which name those of Sardica also were comprehended, because the synod of Sardica was regarded as an appendix of that of Nicaea. — 2° The Isidorian collection was transcribed by Isidore from an ancient Spanish collection. It contains the canons of Nicaea, Ancyra, Neo-Caesarea, Gangra, Sardica, Antioch, Laodicea, Constantinople and Chalcedon. —

3° The ancient version of the Greek canons appears somewhat less ancient, and comprises the canons of Ancyra, Neo-Caesarea, Nicaea, Sardica, Gangra, Antioch, Chalcedon, Constantinople. —

4° At the beginning of the sixth century Denis the monk, surnamed Exiguus on account of his small stature or humility, by nation a Scythian, Roman in manners and dwelling, illustrious for doctrine and integrity of life, published the most famous collection called Dionysian from the name of its author. It is divided into two parts, one of which contains the canons of councils, the other the letters of the supreme Pontiffs. Adrian I pope handed over this collection enriched with certain additions to Charlemagne, and thence it was called Hadriana. Indeed Adrian himself did not add these increments, but since he was seen to have approved the whole work, he conciliated to it great authority; whence collections compacted out of councils were called Conciliatae. In the same collections particular enactments were joined to the canons of councils and the decretals of Roman Pontiffs. Noted especially among the Africans are the Codex Africanus, the Breviatio canonum of Ferrandus, deacon of Carthage, of the year 547; the Canonum concordia of Cresconius bishop, of the year 697. Among the Spaniards, the Capitula of Martin, bishop of Braga, 572; the Collection of St. Isidore of Seville, 636. Among the Gauls, the Codex canonum; the Capitularies, which, enacted in the general assemblies of bishops and nobles, pertained to both regimes; the Panormia of Yves of Chartres, 1117. Among the Germans, the Collection of Regino, 906; the volume of Decretals of Burchard, 1025. Among these books must be reckoned the ritual books and formularies, in which many disciplinary rules are found.

Here, for memory's sake only, must be noted the False Decretals of Isidore Mercator or Peccator, published in the ninth century, the greater part of which was devised and fabricated by the author himself. Whence, although many things in this collection are true and genuine, the name of False Decretals was deservedly fastened upon this work.

He who desires more concerning the foregoing sources of ancient law should consult the canonists.

II. — The collections enumerated above were never reduced into one body, neither among the Orientals nor in the Latin Church. But when about the middle of the eleventh century ecclesiastical learning, and especially the study of law, began to be held in greater honor, it seemed necessary to reduce these diverse matters into an ordered form, and thence came forth the collections of which the Corpus of canon law such as is now taught in schools is composed.

New canon law consists of six parts, which are: the Decree of Gratian, the Decretals, the Sext of the Decretals, the Clementines, the Extravagantes of John XXII and the Extravagantes communes.

1° The Decree was compiled about the year 1150 by Gratian, a monk of the order of St. Benedict, from the sentences of Sacred Scripture, the decrees and responses of councils and supreme Pontiffs, the laws of emperors, the sayings of the holy Fathers and ecclesiastical writers, and Gratian's own commentaries. Many passages are inscribed Palea, concerning which denomination the likelier truth is the opinion of those who hold that Palea is the name of an author by whom canons outstanding in utility and authority were added, which, first placed in the margin, afterwards crept into the context of the book.

The Decree is divided into three parts. The first treats of ecclesiastical persons, and has one hundred and one distinctions, which themselves are divided into chapters or canons. Texts taken from this part are cited thus: c. Placuit, dist. 16; or more briefly: can. or cap. 4, dist. 16.

The second part contains thirty-six causes, in which is treated the matter and form of judgments. But the third cause thirty-three has seven distinctions on Penance. And since causes are divided into questions and questions into chapters or canons, they are cited in the following manner: c. Ecclesiarum 12, q. 2, that is, can. or cap. 69, cause 12, of question 2. But the Treatise on Penance is cited: can. or cap. 19 Charitas, dist. 2 on Penance.

The third part treats of sacred things under the general title De Consecratione. It has five distinctions, and texts are cited: c. Jejunium, dist. 5 de Consecrat., or can. or cap. 25, dist. 5 de Consecrat.

The distribution of matters adopted by Gratian was thereafter preserved in treatises of canon law.

2° The Decretals were compiled at the command of Gregory IX by St. Raymond of Pennafort. They are divided into five books, of which the first treats of judges or prelates of the Church, the second of civil judgments, the third of the affairs of clerics, the fourth of the sacrament of matrimony, the fifth of criminal judgments. All which are contained in this verse:

Judge, judgment, cleric, espousals, crime.

The Decretals are cited thus: cap. 12 de arbitris, or cap. Innotuit, de arbitris. Formerly extra was added, thus: cap. 12 extra, de arbitris; extra, that is outside the body of the Decree.

3° The Sext of the Decretals, so named because this book follows the five books of decretals. In the year 1298, using the labors of William, archbishop of Embrun, Berengar, bishop of Beziers, and Richard of Siena, who afterwards were made cardinals, Boniface VIII collected the canons of the two general councils of Lyons and the decretals of Roman Pontiffs which had been published after the issue of the collection of Gregory IX. From these and from his own constitutions he composed the Sext, which is divided into five books, like the Decretals, preserving the same order of matters and titles. It is cited in the same manner, with the addition, in 6°, v. g.: cap. Nemo, or cap. 11, de electione, in 6°.

4° The Clementines, so called because Clement V ordered the collection of very many constitutions promulgated by him in the council of Vienne, over which he presided in the year 1311. But since, overtaken by death, he could not perfect this work, these constitutions were published by John XXII in the year 1317. They are cited in this manner: Clement., Cum secundum, de poenitentiis; or: cap. Cum secundum, or cap. 1 de ponit. Clement.

5° The Extravagantes of John XXII. Under this title are comprehended twenty decretals which John XXII had issued in the earlier years of his pontificate, and which wandered scattered outside the collections of which the body of the law then consisted. They are cited thus: cap. 1, or cap. Ad onus, de electione, in Extrav. Joann. XXII; or more briefly: Extrav. Ad onus, de electione.

6° The Extravagantes communes are decretals issued from Urban IV down to Sixtus IV which remained outside the body of the law. This collection, while Sixtus IV governed the Church, was perfected by private industry. It is divided into five books, like the Gregoriana. It is cited: Extrav. Injunctae, de electione, cap. 3; or: cap. Sancta, int. comm., that is, inter communes.

In each of the books there are glosses, that is commentaries, which were written by the labor of many, and have no greater authority than the opinion of a private doctor can have in explaining laws¹. ¹ The glossators are Accursius, Bernardus, Tancredus, Joannes, Andreas, to whom are added the interpreters Sinibaldus, who afterwards was Innocentius IV, Hostiensis, Speculator, or Guillelmus Durandus, Pannormitanus, etc.

The whole body of canon law was published at Rome under Pope Gregory XIII, diligently corrected, and later copies were made according to this typical edition.

The same Gregory XIII gave encouragement to collecting the constitutions of the supreme Pontiffs which had come to light after Sixtus IV, and he committed this business to learned men, who were to issue a Seventh of the Decretals. But, this Pope dying before the work was yet finished, Sixtus V took care that it should be completed; and he too being taken from human affairs, Clement VIII, who as cardinal had bestowed labor and study upon this matter, ordered that collection to be committed to press. Difficulties arising, especially concerning the prohibition of publishing private commentaries upon the Tridentine decrees inserted in this book, that work, elaborated with so much labor, was suppressed², of which copies, now most rare, can scarcely be found at great price. About the same times, namely in the year 1590, Peter Matthaeus, jurist of Lyons, published by his own and private labor a Seventh of the Decretals, into which many faults crept and several things also are wanting. This codex lacks all public authority. ² Fagnanus, in cap. Cum venissent, de judic., n. 61, totam rem diligenter narrat.

III. — Newest law properly coalesces from apostolic constitutions and decisions of any kind whatsoever which after Sixtus IV have proceeded from pontifical authority, either immediately or mediately. However, in the collections made thence are included many earlier constitutions which, since they did not obtain a place in the book of Extravagantes, remained wandering outside the body of the law. The newest collections are the following.

1° Bullaria. While Sixtus V reigned, Laertius Cherubinus, a Roman, first collected into one volume, which he called Bullarium, the constitutions of Pontiffs wandering outside the body of the law, beginning from St. Leo the Great. He afterwards enlarged his book with the constitutions of Paul V, and was preparing a third edition in which later constitutions should be contained, when, overtaken by death, he could not perfect the work begun. His son Angelus Maria Cherubinus completed the paternal work, adding to it many constitutions published down to Innocent X. He called this new work, consisting of four volumes and edited in the year 1638, Bullarium Magnum. A fifth volume afterwards followed, in which Angelus a Lantusca and Paulus a Roma included other constitutions down to Clement X. But largest of all is the Bullarium Magnum edited by Hieronymus Mainardi at Rome and distributed into fourteen volumes. It contains the constitutions of the supreme Pontiffs from Leo the Great to Clement XII.

There appeared, at the command of Benedict XIV, his own constitutions comprised in four volumes. Published at Rome, in the year 1835, is a continuation of the great Bullarium, consisting of the constitutions of Clement XIII, Clement XIV, Pius VI, Pius VII, Leo XII, Pius VIII and Gregory XVI.

Julia, a Catholic matron, asked her confessor whether it is lawful to provide meat for Protestants on days of abstinence. For sometimes, as she says, she has Protestant guests, either relatives or friends, who remain with her at home for several days; and if a day of abstinence occurs, she is accustomed to leave meat on a side table so that they may take it if they wish. This manner of acting, as is evident, has its inconveniences; and therefore, if it is lawful, she would like politely to invite them to eat meat on days of abstinence. Hence it is asked:

1. Who are subject to a law?

2. Are heretics and schismatics subject to ecclesiastical laws?

3. Is it lawful to cooperate in another’s sin, whether formal or material?

4. What is to be said concerning the case?

1. Who are subject to a law so as to be bound to obey it?

All those and only those are bound to obey a law who are subject to the authority of the lawgiver. It is he who imposes the obligation, and he can only bind those who are subject to his authority.¹

1 Bucceroni, vol. i, no. 192.

2. Are heretics and schismatics subject to ecclesiastical laws?

The Church certainly has power to bind all those who are validly baptized, for by baptism they become subject to her authority. They will in general be excused from formal transgression on account of ignorance when they violate ecclesiastical law which they do not recognize. Moreover, many approved authors hold that it is not the intention of the Church to bind heretics and schismatics by such laws as are designed directly to procure the spiritual good of souls, such as laws imposing fasting, abstinence, and the observance of holy-days. It is the intention of the Church to bind them by the diriment impediments of marriage unless in a particular case she exempts them, as she does with regard to clandestinity.¹

1 Cavagnis, Instit. Jur. Can., vol. i, n. 566.

3. Is it lawful to co-operate either in the formal or in the material sin of another?

There can not be formal co-operation in another's sin without willing that sin, and, as this is sinful, formal co-operation in the sin of another, whether formal sin or material, is never lawful. Material co-operation in an act of another which is not necessarily sinful in itself, though as put by the other party it is sinful, is allowed, provided that there be good and proportionate reasons for it, and provided that the sin of the other party is not intended, and provided also that the co-operator is not bound by a special obligation to prevent the act.

4. The case. Julia, a Catholic, has been accustomed to leave flesh-meat on a side-table on days of abstinence when she has non-Catholic guests, so that they might help themselves to meat if they chose to do so. In this way she got over the difficulty she felt about inviting them expressly to eat flesh-meat on days when the Church forbids flesh-meat. However, the method had its drawbacks, and so she asked her confessor whether she might expressly invite them to take flesh-meat. From what has been said above it is plain that she may, for in all probability the Church does not intend to bind non-Catholics by such laws. A faculty is sometimes granted to bishops to enable them to allow their subjects to offer meat to non-Catholic guests on days of abstinence, but, as Putzer remarks, such a faculty is not strictly necessary.¹

1 Putzer, Comment. in Facult. Apost., p. 312.

1. A law is defined to be: A precept just and abiding, given for promulgation to a perfect community. A law is primarily a rule of action. The first attribute of a law is that it be just: just to the subject on whom it is imposed, as being no harmful abridgment of his rights: just also to other men, as not moving him to injustice against them. An unjust law is no law at all, for it is not a rule of action. Still, we may sometimes be bound, when only our own rights are infringed, to submit to such an imposition, not as a law, for it is none, but on the score of prudence, to escape direr evils. A law is no fleeting, occasional rule of conduct, suited to meet some passing emergency or superficial disturbance. The reason of a law lies deep down, lasting and widespread in the nature of the governed. A law, then, has these two further attributes of permanence in duration and amplitude in area. Every law is made for all time, and lives on with the life of the community for whom it is enacted, for ever, unless it be either expressly or implicitly repealed. A law in a community is like a habit in an individual, an accretion to nature, which abides as part of the natural being, and guides henceforth the course of natural action. This analogy holds especially of those laws, which are not enacted all of a sudden—and such are rarely the best laws—but grow upon the people with gradual growth unmarked, like a habit by the repetition of acts, in the way of immemorial custom. I have said that a law is for a community, that it requires amplitude and large area. A law is not laid down for an individual, except so far as his action is of importance to the community. The private concerns of one man do not afford scope and room enough for a law. Neither do the domestic affairs of one family. A father is not a legislator. A law aims at a deep, far-reaching, primary good. But the private good of an individual, and the domestic good of a family, are not primary goods, inasmuch as the individual and the family are not primary but subordinate beings: not complete and independent, but dependent and partial; not wholes but parts. The individual is part of the family, and the family is part of a higher community. It is only when we are come to some community which is not part of any higher, that we have found the being, the good of which is primary good, the aim of law. Such a community, not being part of any higher community in the same order, is in its own order a perfect community. Thus, in the temporal order, the individual is part of the State. The State is a perfect community; and the good of the State is of more consequence than the temporal well-being of any individual citizen. The temporal good of the individual, then, is matter of law, in so far as it is subservient to the good of the State. We have, then, to hold that a law is given to the members of a perfect community for the good of the whole. Not every precept, therefore, is a law: nor every superior a lawgiver: for it is not every superior that has charge of the good of a perfect community. Many a precept is given to an individual, either for his private good, as when a father commands his child, or for the private good of him that issues the precept, as when a master commands a servant. But every law is a precept: for a law is an imperative rule of action, in view of a good that is necessary, at least with the necessity of convenience. To every law there are counsels attached. A law may be said to be a nucleus of precept, having an envelope of counsel. Every law has also a pendent called punishment for those who break it: this is called the sanction of the law. A law is also for promulgation, as a birch rod for application. The promulgation, or application, brings the law home to the subject, but is not part of the law itself. So much for the definition of Law.

2. We have to learn to look upon the whole created universe, and the fulness thereof, angels, men, earth, sun, planets, fixed stars, all things visible and invisible, as one great and perfect community, whose King and Lawgiver is God. He is King, because He is Creator and Lord. But lordship and kingship are different things, even in God. It is one thing to be lord and master, owner and proprietor of a chattel, property and domain: it is another thing to be king and governor, lawgiver and judge of political subjects. The former is called power of dominion, or right of ownership, the latter is power of jurisdiction. Power of dominion is for the good of him who wields it: but power of jurisdiction is for the good of the governed. As God is Lord of the universe, He directs all its operations to His own glory. As He is King, He governs as a king should govern, for the good of His subjects. In intellectual creatures, whose will is not set in opposition to God, the subject's good and the glory of the Lord finally coincide. God's power of dominion is the concern of theologians: the moralist is taken up with His power of jurisdiction, from whence emanates the moral law.

3. In the last chapter (s. ii., nn. 9, 10, pp. 120, 121), we stated the moral law in these terms, that God wills to bind His creatures to certain lines of action, not arbitrary lines, as we saw, but the natural lines of each creature's being. The law thus stated takes in manifestly a wider field than that of moral action. There is in fact no action of created things that is not comprehended under this statement. It comprises the laws of physical nature and the action of physical causes, no less than the moral law and human acts. It is the one primeval law of the universe, antecedent to all actual creation, and co-eternal with God. And yet not necessary as God: for had God not decreed from all eternity to create—and He need not have decreed it—neither would He have passed in His own Divine Mind this second decree, necessarily consequent as it is upon the decree of creation, namely, that every creature should act in the mode of action proper of its kind. This decree, supervening from eternity upon the creative decree, is called the Eternal Law.

4. This law does not govern the acts of God Himself. God ever does what is wise and good, not because He binds Himself by the decree of His own will so to act, but because of His all-perfect nature. His own decrees have not for Him the force of a precept: that is impossible in any case: yet He cannot act against them, as His nature allows not of irresolution, change of mind, and inconsistency.

5. Emanating from the will of God, and resting upon the nature of the creature, it would seem that the Eternal Law must be irresistible. "Who resisteth His will?" asks the Apostle. (Rom. ix. 19.) "The streams of sacred rivers are flowing upwards, and justice and the universal order is wrenched back." (Euripides, Medea, 499.) It is only the perversion spoken of by the poet, that can anywise supply the instance asked for by the Apostle. The thing is impossible in the physical order. The rivers cannot flow upwards, under the conditions under which rivers usually flow: but justice and purity, truth and religion may be wrenched back, in violation of nature and of the law eternal. The one thing that breaks this law is sin. Sin alone is properly unnatural. The world is full of physical evils, pain, famine, blindness, disease, decay and death. But herein is nothing against nature: the several agents act up to their nature, so far as it goes: it is the defect of nature that makes the evil. But sin is no mere shortcoming: it is a turning round and going against nature, as though the July sun should freeze a man, or the summer air suffocate him. Physical evil comes by the defect of nature, and by permission of the Eternal Law. But the moral evil of sin is a breach of that law.

6. A great point with modern thinkers is the inviolability of the laws of physical nature, e.g., of gravitation or of electrical induction. If these laws are represented, as J. S. Mill said they should be, as tendencies only, they are truly inviolable. The law of gravitation is equally fulfilled in a falling body, in a body suspended by a string, and in a body borne up by the ministry of an angel. There is no law of nature to the effect that a supernatural force shall never intervene. Even if, as may be done perhaps in the greatest miracles, God suspends His concurrence, so that the creature acts not at all, even that would be no violation of the physical law of the creature's action: for all that such a law provides is, that the creature, if it acts at all, shall act in a certain way, not that God shall always give the concurrence which is the necessary condition of its acting at all. The laws of physical nature then are, strictly speaking, never violated, although the course of nature is occasionally altered by supernatural interference, and continually by free human volition. But the laws of physical nature, in the highest generality, are identified with the moral law. The one Eternal Law embraces all the laws of creation. It has a physical and a moral side. On the former it effects, on the latter it obliges, but on both sides it is imperative; and though in moral matters it be temporarily defeated by sin, still the moral behest must in the end be fulfilled as surely as the physical behest. The defeat of the law must be made good, the sin must be punished. Of the Eternal Law working itself out in the form of punishment, we shall speak presently.

7. It is important to hold this conception of the Eternal Law as embracing physical nature along with rational agents. To confine the law, as modern writers do, to rational agents alone, is sadly to abridge the view of its binding force. The rigid application of physical laws is brought home to us daily by science and by experience: it is a point gained, to come to understand that the moral law, being ultimately one with those physical laws, is no less absolute and indefeasible, though in a different manner, than they.

It is hard for us to conceive of laws being given to senseless things. We cannot ourselves prescribe to iron or to sulphur the manner of its action. As Bacon says (Novum Organum, i., Aphorism 4): "Man can only put natural bodies together or asunder: nature does the rest within." That is, man cannot make the laws of nature: he can only arrange collocations of materials so as to avail himself of those laws. But God makes the law, issuing His command, the warrant without which no creature could do anything, that every creature, rational and irrational, shall act each according to its kind or nature. Such is the Eternal Law.

Readings.—Suarez, De Legibus, I., xii.; St. Thos., 1a 2æ, q. 90, art. 2-4; ib., q. 91, art. 1, in corp., ad 1; ib., q. 93, art. 1, in corp.; ib., q. 93, art. 4, in corp.; ib., q. 93, art. 5, in corp.; ib., q. 93, art. 6, in corp.; Suarez, De Legibus, II., vi.; Cicero, De Legibus, II., iv.; id., De Republica, iii. 22.