105. Law is called the remote external rule of moral actions, and conscience the proximate and internal rule of the same. For we have seen which actions are in general morally good and meritorious of eternal life; now which good and meritorious actions we must perform in order that we may attain the ultimate end is determined by the divine will, which is made known to us through divine law. Therefore divine law directs our actions to the ultimate end. But divine law cannot direct our actions unless it is made known to us through conscience and applied through it to individual actions. Therefore human actions must be conformed to divine law and conscience in order that they be apt for the end.

¹ St. Thomas, I-II, q. 90-108. St. Alphonsus, l. 1, n. 99-208. Suarez, De legibus, a classic work consisting of ten books. Laymann, Theologia moralis, l. 1, tr. 4. Reuter, Theologia moralis, pr. 1, n. 118-262. Sporer-Katzenberger, Supplementum, c. 1. Wernz, Ius decretalium (Rome: Typographia C. de Prop. Fide, 1898), I, n. 80-173. Wildmuller, Uber das Sittengesetz (Wurzburg: Woerl, 1878).

A law in general is a rule of conduct, but the term needs to be defined more exactly in order to mark it off from precepts and counsels, A law, then, in the strict sense of the word, is, according to St Thomas, an ordinance of the practical reason for the common good, promulgated by him who has care of a society.¹

It is said to be an ordinance of the practical reason, for a law orders human actions with a view to a certain end, but to order and select proper means toward an end belongs to the reason; and since the ordering in question has reference to practice and is imposed by authority, it is attributed to the practical reason. Law, then, begets an obligation in the subject, and in this differs from a counsel.

For the common good indicates the end of all good laws.

By him who has care suggests the source of law which can only be one who has authority over the whole community. Regulations made by subordinate authorities are called in English by-laws, in ecclesiastical language, statutes.

Of the society—These words imply that the subject of law is not a single person or a family; a law is made for a community more or less numerous.

Promulgated—Promulgation is the publication of the law by legitimate authority with a view to imposing an obligation. Some sort of promulgation is required in order that subjects may know of the existence of the law and the time when it begins to bind. In English legislation the time when a law will begin to take effect is often set down in the law itself; otherwise it begins to oblige when it receives the royal assent, by which act it is also promulgated.

There used to be a controversy as to what sort of promulgation is necessary in order that ecclesiastical laws may be binding. Many canonists maintained that in this matter canon law followed the civil law, which required that a new ordinance should be promulgated in the different provinces of the Empire, and should begin to bind after a period of two months, In recent times the opinion has become prevalent that authoritative publication in Rome is, by the very fact, promulgation for the whole Church. This is certainly sufficient if the Supreme Pontiff makes known his intention to bind the whole Church by mere publication in Rome, as Leo XIII seems to have done in his legislation about forbidden books.² Not unfrequently there is a special clause in ecclesiastical laws which defines the mode of promulgation, as in the decree Tametsi of the Council of Trent (sess. 24, De Ref. Matrim., c. 1), in the Constitution of Clement XIV, Dominus ac Redemptor, July 21, 1773, and in the Constitution of Leo XIII, Romanos Pontifices, May 8, 1881. Sometimes a new law is sent to the Bishops, whose duty it is to see to the execution of the Pontiff’s will.

The new Code of Canon Law prescribes (Can. 9) that laws made by the Apostolic See are promulgated by their publication in the official Acta Apostolicae Sedis, unless in particular cases some other mode of promulgation is prescribed; and they only begin to have force after the elapse of three months from the date of the number of the Acta Apostolicae Sedis in which they are published, unless from the nature of the matter they bind immediately or a shorter or longer term is specially and expressly laid down in the law itself.

The Fathers of a Plenary or Provincial Council themselves determine the mode and time of promulgation of the decrees of the Council after revision by the Sacred Congregation of the Council (Can. 291); a Bishop determines the mode of promulgation of his own laws in or out of Synod (Can. 335, sec. 2).

¹ St Thomas, 1-2, q. 90, a. 4.

² Index librorum prohibitorum, 1900.

From what has been already said it will be clear how a law differs from a precept. A law is a regulation made by a public authority for the common good, and directly affects a definite territory, and indirectly those who live therein. It is stable and permanent, as is the society for whose good it is made. A precept, on the other hand, is imposed also by private authority for the good of the individual, and directly affects the person—haeret ossibus. Regularly a precept is limited in time and expires with the death or removal from office of him who gave it.

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.

No body of men could live together in peace without being subject to a supreme authority whose function it is to look after the common weal by defending the rights of all, repressing and punishing crime, and taking measures in the common interest which are beyond the power of private enterprise. God, from whom all power is derived, has willed that there should be a separate supreme spiritual authority to look after the spiritual welfare of mankind, and another to look after its temporal welfare. As Leo XIII teaches, in his Constitution Immortale Dei, November 1, 1885: ‘‘ The Almighty, therefore, has appointed the charge of the human race between two powers, the ecclesiastical and the civil, the one being set over divine, and the other over human things. Each in its kind is supreme, each has fixed limits within which it is contained, limits which are defined by the nature and special object of the province of each, so that there is, we may say, an orbit traced out within which the action of each is brought into play by its own native right. ... One of the two has for its proximate and chief object the well-being of this mortal life; the other the everlasting joys of heaven. Whatever, therefore, in things human is of a sacred character, whatever belongs either of its own nature or by reason of the end to which it is referred, to the salvation of souls, or to the worship of God, is subject to the power and judgement of the Church. Whatever is to be ranged under the civil and political order is rightly subject to the civil authority, Jesus Christ has himself given command that what is Caesar’s is to be rendered to Caesar, and that whatever belongs to God is to be rendered to God.”

The spiritual and the civil power use their authority to make laws, and in this chapter we propose briefly to indicate those who have legislative authority in the Catholic Church. z. The power of making laws resides in the supreme authority in the Church, and in any person or body of men to whom the power has been communicated.

(a) The Pope, by the primacy of jurisdiction which he receives from God, is the supreme lawgiver in the Church. 5° He exercises this function either alone or in a general council. Sometimes he acts in his own name, sometimes he uses one of the Roman Congregations for his purpose. 'The Congregation of Sacred Rites (S.R.C.) has received from the Pope authority to make laws for the whole Church in liturgical matters which have been entrusted to its supervision.

The general decrees, then, of the S.R.C. bind the whole Latin Church by their own authority. The same must be said of special decrees which are comprehensive—i.e., which merely interpret the meaning and application of a pre-existing law. Decrees made in answer to special questions, if they are not promulgated authentically, and especially if they are extensive—i.e., if they contain a new provision of law—bind the parties concerned, but probably impose no obligation on others.

(b) The Bishops, assembled in national or provincial councils, or separately in their respective dioceses, make laws for their own subjects.” A Bishop’s legislative authority is usually exercised in his diocesan synod; other ordinances are looked upon rather as precepts than laws, unless the Bishop, after consulting his chapter, specially expresses his mind to the contrary. By modern ecclesiastical law, an Archbishop has no legislative authority over his suffragans or their dioceses. He can hear appeals from their subjects, and in special cases he supplies for their neglect of duty (Can. 274).

Bishops, inasmuch as they are subject to the common law of the Church and the decrees of the Holy See, can make no law which is contrary to these.

(c) Religious Orders have power to make laws for their own members. The power is exercised according to the special Constitutions and Rules approved by the Holy See for each Order. Orders of women, however, have no legislative authority, though the superioresses, by virtue of what is called dominative power, can of course give binding precepts to their subjects.

(d) Parish priests, since they have no jurisdiction in the external forum, are incapable of making laws.

It belongs to canon law to treat more fully this and similar matters connected with laws; nor is it any part of the duty of a moral theologian to inquire what is the legislative authority in civil matters.¹

¹ Pius IX, May 23, 1846; Can. 253.

It is the duty of the legislative authority to promote the common good by wise, just, and useful laws. It should apportion burdens according to the principles of distributive justice, so that they may not press unduly on the shoulders of particular classes and persons. Over-legislation should be avoided; something must be left to private initiative; individuals and families should be allowed as much freedom as is compatible with the public welfare. Even prohibitive legislation will be kept within the bounds of moderation in a well-ordered State; not all evils will be forbidden, but some even of the more serious breaches of the moral code will be tolerated by the State, lest by trying to force people to be good greater harm may ensue. What is conducive to the common weal will be the legislator’s guide in the framing of laws.¹

¹ St ‘Thomas, 1-2, q. 96, a. 3.

Human laws cannot be contrary to the divine law, from which they derive all their force and efficacy, so that a law which prescribes something morally wrong is no law at all, and cannot exert any binding force on the conscience. There is nothing to prevent human law prescribing or forbidding what is already of obligation or forbidden by the divine law. A parent is bound by natural, divine, and human law to bring up his children properly; theft is forbidden by human and divine law.

An obligation which is left indeterminate by the divine or natural law may be further determined by human law as to time, place, frequency, and other circumstances affecting the observance of it. And so the civil law determines at what age children attain their majority, and which near relatives are responsible for the support of the indigent poor; the Church, too, determines the limits of the impediment of consanguinity as affecting marriage, the times for the reception of the sacraments of Penance and Holy Communion, and many other obligations left indefinite by divine or natural law.

An act which in itself is indifferent may in certain circumstances become opposed to the public welfare, or on the contrary may conduce to it. The legislative authority may, for the public good and to further the end for which the society exists, prescribe or prohibit such acts according to circumstances. In itself it is indifferent on which side of the road a carriage is driven, and whether it passes another on the right or on the left; but where traffic is considerable it is necessary that these matters should be regulated by law or custom. 'To eat meat on Friday is in itself as lawful as to eat it on any other day, but the Church has forbidden it in order that her children may exercise themselves in the practice of temperance and mortification of the sensual appetite. When an indifferent act or one which already belongs to some special virtue is commanded by the legislator from a motive which belongs to some other virtue, the act commanded henceforth belongs to the virtue which furnished the motive, if the legislator so wills. And so, inasmuch as the Church prescribes fasting Communion out of reverence for the Blessed Sacrament, one who receives not fasting is guilty of irreverence and sacrilege, though, apart from the Church’s law, to receive Holy Communion not fasting would not be sinful. For just as an action may get a special moral quality from the end for which the agent performs it, so the motive of the legislator may give a distinct moral quality to an act which he commands. The same holds good of prohibitive laws.

Acts of heroic virtue which would be impossible for the body of the people cannot ordinarily be prescribed by law. A law must be morally possible of observance for the general body of the subjects. When, however, the public good requires acts of heroism, and especially when a state of life has been voluntarily assumed which demands heroism, acts of heroic virtue may then become matter of law. The soldier must obey orders at the risk of life, and the Church is justified in prescribing celibacy to all who freely choose to enter sacred orders. If anyone feels that he cannot observe the law, let him not volunteer for the service.

Merely internal acts which do not conduce to the common good of civil society, cannot be the subject-matter of civil law. The Church’s end is the spiritual welfare of her children, to which internal acts contribute much; and so, many theologians hold that the Church may prescribe merely internal acts. She certainly has the power of prescribing internal actions concomitantly, as it is said, when they form part of a whole human action. Therefore, in commanding her children to hear Mass on Sundays, she bids them have the necessary intention, without which a human act is impossible. The Church also has authority over internal acts when she determines the divine law about articles of faith, declaring that such a truth is to be believed, or that acts of faith, repentance, or charity are to be elicited at certain times. Moreover, in the internal forum of Penance the priest can impose internal acts of virtue as satisfaction for sins confessed. Religious, too, who have voluntarily by vow subjected themselves to their superiors, are bound to obey the rules and constitutions which prescribe times for meditation and prayer. All theologians are agreed on these points. But apart from these special cases, it is the more common teaching of theologians and canonists that the Church has no power to make laws about merely internal acts. For such acts are not cognizable in the external forum of the Church, and, since the legislative power is coextensive with the judicial, it would seem that she cannot make laws about them.¹ 2-2, q. 104, a. 5.

¹ Inn. III, c. 34, de Simonia; Trent, 24, c. 1, de Ref.; St Thomas.

ALL those are subject to the law and bound to yield it obedience who live under the authority of the legislator. And so, inasmuch as the natural law is derived from the eternal law of God, and is nothing else than the rule of action suited to human nature as such, all who participate in human nature are subject to the law of nature. Infants and madmen who do something forbidden by the law of nature are indeed excused from formal sin for want of knowledge, but anyone who wilfully provokes them to such actions commits sin by their means in so doing.

Human law is intended to be a guide for reasonable human beings, and so the habitual use of reason is required in order to be subject to human law. Imbeciles and children who have not yet attained the use of reason are not subject to positive law. Regularly the Church presumes that at seven years of age children attain the use of reason, and inasmuch as the law provides for what ordinarily happens we may say that at seven years children begin to be obliged to hear Mass and to fulfil the other duties of the Christian life (Can. 12). It is well that they should be accustomed to obey such laws as those of hearing Mass and abstaining even earlier. There are special reasons for deferring the obligation of fasting, and sometimes for deferring for a time that of receiving Holy Communion (Can. 859).

Drunken people remain subject to the Church’s law, for habitually they have the use of reason.

Men become subject to the Church by Christian baptism, and so all baptized persons, and these alone, are subject to the laws of the Church. Heretics and schismatics who are validly baptized are per se subject to the Church’s laws, 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. Such are the laws of keeping certain days holy, of abstaining, of fasting, of hearing Mass on Sundays. Harm rather than good would follow from intending these laws to bind heretics and schismatics.

Particular ecclesiastical laws are made for particular countries, or provinces, or dioceses, by the competent authority, and bind all subjects living within the territories in question. One is subject to local law by having a domicile or quasi-domicile in the territory for which the law is made. To constitute a domicile in ecclesiastical law, two conditions are required. The person domiciled must have taken up his abode in a parish, or quasi-parish, or at least in a diocese, vicariate apostolic, or prefecture apostolic; and this abode must be joined either with the intention of perpetually remaining there, if they are not called away, or with the actual dwelling there for ten years.

A quasi-domicile is acquired by taking up his abode in the place as above, joined with the intention of remaining there for the greater part of a year if not called away, or with the actual dwelling there for the greater part of a year.

A domicile and a quasi-domicile are lost by those who have them leaving their abode with the intention of not returning there; but wives always retain the domicile of their husbands unless they are lawfully separated from them, and minors that of their guardians (Can. 13, 92, 93, 95).

Whoever, then, resides in a place, having therein a domicile or quasi-domicile is subject to the particular laws of that place. Contracts, too, are governed by the law of the place where they are made, and whoever commits a crime is amenable to the law of the country where it is committed.

While outside the limits of the territory in which one is domiciled, there is no obligation to obey the particular laws of that territory, for the law is territorial and does not bind beyond the limits of the territory for which it was made.

A stranger (peregrinus), or one who has a domicile in another place, but at present is staying elsewhere, is not bound by the particular laws of the place where he is staying; for he is not subject to their authority by having either a domicile or a quasi-domicile in the place, And so, if an English Catholic happened to be in Dublin on the feast of St Patrick, which is kept there as a day of obligation, he would not be bound to hear Mass; nor would a Dublin man who happened to be staying on that day in England. However, a stranger staying in a place where the common law of the Church is observed is bound to act according to its provisions, though there may be a dispensation from its observance in the place where he has his domicile. And so an English Catholic staying in Rome should abstain from flesh meat on Saturday as well as on Friday in Ember week. Moreover, any contracts that he may enter into or crimes that he may commit subject him to the laws of the country where he is staying in those respects (Can. 14).

Homeless people (vagi) are bound by the general and particular laws which are in force in the place where they are staying (Can. 14, sec. 2).

Regulars and their monasteries are exempt from episcopal authority, and so in general are not subject to the laws made by the Bishops for their dioceses. There are, however, many exceptions to this general rule, for in spite of their exemption regulars have in special cases been subjected by the Holy See to the ordinary or else delegated authority of diocesan Bishops. The special cases are treated of by canonists (Can. 615).

LEGISLATIVE authority in the Church is derived from God and not from the people, so that an ecclesiastical law receives its binding force not from the will of the people but from the will of the legislator, made known by the promulgation of a law. An ecclesiastical law, then, binds those for whom it is made, independently of the acceptance of the law by the people (Can. 218).

Practically, however, if a law is not accepted or acted on by the people, it may in various circumstances be said no longer to be of obligation. If the law was never put in force, and acts contrary to it were known to and connived at by authority, the law may be said not to bind for want of acceptance. Really it does not bind because the ruler does not urge it, but tacitly consents to its non-observance. Similarly, if the greater and saner portion of a community do not observe a law, it may be presumed that it is not the legislator’s will to bind the rest. It is obvious that there is question here only of disciplinary laws, for if the law decides matters of faith, obedience is at once imperative.

It is the duty of Bishops to make known to their people and to execute new laws made by the Holy See, especially if the new laws were sent to them for the purpose, or if it is thought likely that they will be useful to the diocese.

If, however, a Bishop thinks that a new pontifical law is not suited to his diocese, he not only may, but it is his duty to represent the matter to the Holy See, and in the meantime the obligation of the law is suspended. If the Holy See, after weighing the matter, insists on the observance of the law, obedience must be rendered to lawful authority. + Ben. XIV, De Synodo, 9, c. 8.

By obligation we here understand a moral necessity arising from a law to do or to forbear doing something. It is said to be a moral necessity, not physical, because it does not subject the person bound to physical but moral constraint to act according to the law; he must act thus if he would do his duty, if he would act reasonably, if he would escape guilt, sin, and punishment.

In a slightly restricted sense a moral obligation is said to be imposed on those subject to a law which binds in conscience under pain of committing sin. Such a law is called a moral law. If the intention of the legislator is not to bind the conscience under pain of sin, but only under pain of paying the penalty imposed, the law is called a penal law. If the law binds under pain of sin, and also imposes a penalty on transgressors, it is called a mixed law.

The obligation of a law depends primarily on the will of the legislator. For we are here considering not the natural law, which is imposed by the very nature of things and by God, but positive law, which depends on the will of the legislative authority for its existence, and so also for the kind and quantity of obligation which it imposes. The legislator may intend to impose a moral obligation under pain of sin, for God commands us to obey our lawful superiors when they impose a strict precept on us, and disobedience to them is an offence against him and a sin. If the matter is of sufficient importance, he may intend the obligation to be serious, so that a breach of it would be grievously sinful, or he may intend it to be only slight, whose breach would be a venial sin. It would be unreasonable to intend to bind under pain of grave sin in a light and trivial matter, and so a human legislator cannot do this. The legislator may also, if he choose, intend to bind only under pain of paying the penalty, and then the subject in case of violation of the law will only be bound in conscience to do this. The kind of obligation, then, which a law imposes depends principally on the will of the legislator, but secondarily also on the matter of the precept.

The kind and quantity of obligation imposed by any particular law may be gathered from the express mind of the lawgiver. If the matter be capable of a grave obligation, and in making the law words indicating a strict precept are used— e.g., we command, we severely ordain—the presumption is that the law imposes a grave moral obligation. The same may be said if a grave censure or other grave penalty is imposed on transgressors. The interpretation of Doctors, and the way in which custom interprets a law, are also guides to its binding force.

An affirmative law, which commands something to be done, is said to bind always but not for always. Thus we are commanded to pray always—i.e., never to abandon prayer— though we are not obliged continually to pray all day long, but only at suitable times. A negative precept, on the other hand, binds always and for always, so that we must continually act according to its prescriptions, At no time on days of obligation may we do servile work.

A law imposes in the first place an obligation on those subject to it to inform themselves of its existence and provisions, for it imposes the duty of observing it, and this cannot be done unless the terms are known; knowledge of the law is the necessary means to the end. A law also forbids us to put ourselves in the proximate occasion of transgressing it, for the avoidance of such proximate occasions is also a necessary means for the observance of the law.

A negative law is observed by abstaining from what is forbidden, for that is the intention of the lawgiver. Provided that we abstain from servile work on a Sunday, we fulfil that part of the law; no special intention of not working or of fulfilling our obligation is required. An affirmative law which prescribes something to be done sometimes requires a conscious human act for its fulfilment; sometimes it does not. If the obligation be merely real, as the duty of paying a debt, even unconscious payment will suffice, provided that the creditor gets what belongs to him. If a personal obligation is imposed of performing some action—e.g., hearing Mass—the action must be performed in a human manner, by a conscious, voluntary act. It is not, however, necessary to intend to fulfil the purpose of the law; we satisfy the precept of hearing Mass by intending to hear it and actually doing so; to fulfil the obligation it is not necessary to intend to honour God, nor even to be in a state of grace; the end of the precept does not fall under the precept, as the adage has it.

We may sometimes satisfy two obligations by one and the same action, as when a day of abstinence, on account of a vigil, falls on a Friday, or a day of obligation falls on a Sunday. Sometimes, however, the nature of the obligation or the presumed will of the legislator prohibits this being done. If a confessor imposed the hearing of Mass for sacramental penance, it would ordinarily be intended that a Mass not otherwise of precept should be heard. Nothing hinders the simultaneous fulfilment of two different obligations by actions which do not clash. A priest may well say his breviary while hearing a Mass of obligation.

If the whole of an obligation cannot be fulfilled, we are not thereby excused from fulfilling a part, if the matter is capable of being divided, and thus in some degree the end of the law is secured. If a priest, for example, cannot say the whole breviary, he must say what he can, if the portion which he can say be considerable and the form prescribed by the Church be observed. However, if a Bishop could not go the whole way to Rome to make his visit ad limina, there would be no obligation of going as far as he could. 9. When a fixed time is appointed for the fulfilment of an obligation, sometimes, according to the will of the legislator, after the term has passed, the law no longer binds; sometimes, on the other hand, the obligation must still be fulfilled. Thus, if a priest lawfully or unlawfully has omitted his breviary, he is not bound to make it up on the following day, or if one of the faithful miss Mass on a Sunday, he is not bound to supply the omission by hearing it on a week day. On the other hand, if a debt has not been paid on the date agreed on, it must be paid as soon as possible afterward, and if the Easter Communion has not been made at the proper time there still remains the duty of making it.

THE interpretation of law is its genuine explanation according to the mind of the lawgiver.

(a) This interpretation may be authentic, doctrinal, or customary.

Laws are authentically interpreted by the lawgiver, his successor, and by him to whom this power of interpreting the law has been granted by them.

An authentic interpretation set forth by way of law has the same force as the law itself; and if it only declares the words of the law which in themselves are certain, it does not need to be promulgated and it has a retrospective force; if it restricts or extends the law or if it explains a doubtful law, it has not a retrospective force and it should be promulgated. But if it is given by way of judicial sentence or rescript in a particular matter, it has not the force of law, and it only binds the persons and affects the matters for which it was given (Can. 17).

Doctrinal interpretation is that which doctors and lawyers make according to the recognized rules of legal interpretation. It has weight according to the knowledge, skill, experience, and standing of him who makes the interpretation.

Customary interpretation is that which a law receives from the practice and conduct of those who are subject to it. It has very great authority, for it is presumed to have at least the tacit approval of the lawgiver, and indeed, according to the adage, ‘‘ Custom is the best interpreter of law ” (Can. 29).

(6) A strict interpretation takes the words of the law in their literal meaning; a wide interpretation takes the words in a looser sense.

Many rules are given by canonists for the doctrinal interpretation of law. The following are the most important for our purpose in moral theology:

(a) The words of the law must be taken in their obvious and natural meaning. The lawgiver must be supposed to have wished to express himself as clearly as possible, and to have said what he meant. Sometimes, however, legal terms have a technical meaning which must be attended to. Thus, legitimate in ecclesiastical law is used of children who have been legitimatized as well as of those who were born in lawful wedlock.

(b) The mind of the legislator and the scope of the law must be attended to. This rule does not imply that we must try to get at the private intention and object which the lawgiver had in view in making the law. It means that we must consider the circumstances which gave rise to the law, the object which it was designed to attain as expressed in the law itself, especially in the narrative or historical portion of it. The whole law should be pondered, not merely an isolated section; and if there is question of interpreting an answer or rescript sent in reply to a question or petition, this latter must be carefully considered.

(c) Laws which impose some new burden or restriction receive a strict interpretation, those which confer a favour a wide interpretation. For the lawgiver is presumed to be benignant towards his subjects, and to have expressed himself with precision and strictness in the disagreeable task of laying burdens on his people. In such a law, then, the word clerk will only comprehend the lower ranks of the clergy, whereas it will comprehend dignitaries and religious in favourable matters.

(d) A law must not be extended from one case to another even if the same reason exist in the two cases, for the reason of the law is not the law. And so although parish priests are bound to offer Mass on holy days of obligation for their parishioners, this obligation must not be extended to a parish priest’s assistants, for such priests, though they have the care of souls, are not parish priests (Can. 475). If, however, anything unjust, inequitable, or absurd would follow from the application of this rule, then it must not be applied. And so, generally, where the law punishes the adultery of the husband, it must be applied to an adulterous wife; where power is granted to make a will, legacies may be left too. The less is contained in the greater (cf. Can. 18 ff.).

Epieikeia, or equity, is a benign and equitable interpretation of the law, by which it is not deemed to apply to some particular case. For cases arise where, if the law were applied, hardship and harm would be the result. The law is made for ordinary conditions and is intended to apply in ordinary circumstances; the lawgiver could not foresee all possible cases, and he is not presumed to intend the law to press unduly on individuals, so as to cause special hardship. So that when the observance of the law in any particular case would cause special hardship which the lawgiver cannot be presumed to have intended, the person so situated is excused from obeying the law by an equitable interpretation of it. If, for example, I should incur serious risk of contracting some disease if I went out to hear Mass on a Sunday, I am excused from obeying the precept.

Such equitable interpretations are specially permitted in affirmative laws, not in those which make an act done contrary to them null and void. The common good requires that these should be observed even with grave personal inconvenience. And so the diriment impediments of marriage do not cease to bind even when they cause serious inconvenience in particular cases,

THE natural law continues to have binding force even though its observance entails great inconvenience. We must not commit murder to save the State, nor are we allowed to tell a lie in order to preserve human life.¹ Positive law, however, does not bind with the same rigour. Our Lord taught us² that even the positive divine law does not bind men when great inconvenience would follow from its observance. It is an axiom that necessity has no law. This is all the more true of positive human law, which must be accommodated to the moral strength of the majority of the people, otherwise it will be impossible to observe it, and nobody can be bound to do what is impossible. So that not only physical impossibility excuses from the observance of the law, but also any relatively great difficulty or serious inconvenience which constitutes moral impossibility (Can. 2205).

No general rule can be given for estimating the degree of difficulty which would excuse from the duty of observing any particular law in the concrete. The importance of the law, the intention of the legislator, the results of non-observance of the law, the degree of difficulty in the special case, must all be considered, and a prudent judgement given in view of all the circumstances.

¹ Inn. III, c. Super eo, de usuris.

² Matt. xii.

A law binds those to its observance who are subject to it, but it does not oblige people to remain subject to it. If I do not like living under a particular law, the law does not prevent me from going elsewhere into territory where it does not bind, and thus freeing myself from the duty of observing it. If I do not like abstaining from flesh meat on days of abstinence, I may lawfully go and live in Spain, get my Bulla Cruciata, and enjoy my. flesh meat. Such an action will be perfectly lawful, even if I directly intend to withdraw myself from the authority of the law. I have the right to use my liberty to go and live where I choose as far as the law is concerned. And when I am outside the particular territory subject to the law, it no longer binds me.

As long as a person remains subject to a law he must have the will to fulfil its obligations as far as he can, so that he must not do anything with the intention of making it impossible for him to observe the law. Moreover, he must take reasonable means to be able to do what the law commands, for one who is bound to secure some end is bound to use the necessary means. And so a priest who is going to travel must take his breviary with him so as to be able to say his Office; and time must be made by all Catholics for hearing Mass, receiving the sacraments, and fulfilling other religious duties. The question as to what obstacles to the observance of a law I am bound to remove as far as I can, or whether and when I commit a sin by doing something which will make the observance of the law impossible, is one of great practical difficulty. We have already seen that it is not lawful to put obstacles in the way of observing a law with the intention of escaping the obligation. But suppose there is no such intention, does the precept of hearing Mass, e.g., forbid me to go to a seaside place where there is no Catholic church, and where I foresee that I shall not be able to satisfy the precept ?

This is a type of many practical questions which occur and for which it is difficult to find a general answer. The law in question, the intention of the lawgiver, the practice of good men, and other circumstances, must be weighed in each case. The answer given by theologians to the special question proposed may be taken as a guide toward a solution in other similar cases. They say that such a precept does not oblige us to foresee and make arrangements for its observance a long time ahead; such an obligation would be a great inconvenience and seriously interfere with our liberty. So that any time within the week I may go where I like without regard to the necessity of hearing Mass on the following Sunday. However, when Sunday is practically at hand, say on Saturday evening, the precept of hearing Mass begins to be urgent, and forbids me to do anything without necessity which would make it impossible for me to fulfil the precept.

In this question, as in others, we are considering what is of strict obligation under pain of sin; a good Catholic would of course try as far as possible to have the opportunity of fulfilling his religious duties on a Sunday,

A LAW may cease to bind in various ways. It may be abrogated or altogether withdrawn by the legislator, or his successor, or his superior. For he who made the law can unmake it. Derogation is the annulling of some portion of the law, while the rest remains intact. The law may fall into desuetude from non-observance, or on account of a contrary custom being introduced. It may also cease to bind because it no longer attains the purpose for which it was made, and has become useless. It may cease to bind in particular cases because a dispensation has been obtained. Something must be said on custom, on a law becoming useless, and on dispensations, This will be done in the three following sections.

A custom in the technical sense must be distinguished from a mere use. A use is a constant manner of acting but without binding force. Thus we take holy water on entering the church, and receive blessed ashes on Ash Wednesday, and palms on Palm Sunday, but there is no obligation of doing so, and no sin is committed if we neglect these pious practices; they are only uses. A custom has the force of law from which it only differs in its origin. It arises from the repeated acts of the community which it binds. However, inasmuch as in ecclesiastical matters at least, the community as such has no legislative authority, the binding force of ecclesiastical. customs is derived from the express, tacit, or legal consent of the legislative authority. Legal consent to all customs which have the requisite qualities is given in the last chapter of the Title on Custom in the Decretals, and Can. 27.

A custom is said to be according to the law if it confirms and interprets the law by long-continued usage.

It is beside the law if it introduces a new law in a matter for which no written law exists.

It 1s contrary to the law when the acts by which the custom was introduced were forbidden by law. There is nothing repugnant in the notion of a lawful custom being introduced by wrongful acts, for when the custom is formed the acts cease to be forbidden, because the contrary law has in fact ceased to exist.

In order that a custom may have the force of law it must be reasonable and it must fulfil certain other conditions.

A custom will be reasonable if it is not against the natural or divine law, against which no custom can prevail, nor furnishes the occasion nor is an incentive to sin, nor is pernicious and hurtful to the common good. Inasmuch as custom has the force of law, it cannot be introduced by individuals or by private families, for whom precepts may be given but laws cannot be made.

It must be introduced by the repeated acts of the greater portion of a community or corporate body which is capable of being the subject of law. How many acts are required to form a custom depends much on the matter, and must be left to the prudent judgement of experts.

The acts by which the custom is introduced must be voluntary, not the product of ignorance or mistake, and unless the tacit consent of the legislator is given before, they must continue for a long time—that is, forty years (Can. 27).

As custom depends on the will of the ecclesiastical superior, he may refuse to admit or he may abrogate a custom.

The clause ‘“ Notwithstanding any custom to the contrary,” which frequently occurs in pontifical legislation, merely annuls general customs to the contrary, not special ones nor immemorial customs, nor those of a hundred years’ duration. These require special mention in papal but not in episcopal legislation. The reason of the difference lies in the fact that the Pope may easily be unaware of local customs, and he does not annul what he does not know. But a Bishop is presumed to know the customs of his diocese, and if he makes a law which is against a custom he thereby abrogates the latter, Only a reasonable custom which is immemorial or of a hundred years’ duration can prevail against a law which contains a clause forbidding future customs to the contrary (Can. 27). If, however, a law reprobate contrary customs as abuses, they cannot be introduced as long as the circumstances remain the same. Such customs would be unreasonable, and could not have the consent of the legislator.

A law should further the common good; if it ceases to do this, it becomes useless, and ceases to be a law. A law then ceases to bind when it ceases to be useful for the object for which it was made. However, it not unfrequently happens that a law was designed to further several objects, and it may well be that, though it is useless for one purpose, it is of use for another. The law which requires banns to be published before marriage is designed to discover impediments if there be any, and also to secure the publicity of marriage. It may be absolutely certain that there are no impediments, but for all that the other object of the law remains to be secured, and prevents the law from being useless. The law remains in force as long as it serves its purpose to some extent, though it may not attain all the objects for which it was made.

A positive law ceases to be of obligation in a particular case if it becomes hurtful, or if it cannot be observed without serious inconvenience. But does a law cease to bind in a particular case when it becomes merely useless, when it fails in that particular case to attain any of the objects for which it was made¹ This question is disputed among theologians. The better and more common opinion is that the law does not then cease to bind. For the law is made for the community, and if it continues to promote the common good it retains its binding force for the community. Nor can individuals shake off the obligation of such a law on the ground that it is useless for them; they are bound to conform their actions to the rules which govern the community of which they are members. Besides, there is always danger of self-deception in such matters, and it would be a dangerous principle to admit that one who thinks that a law is useless as a guide for his own conduct need not obey the law. If, however, there be no danger of self-deception, and if it is quite certain that a law has ceased to be of any use in some special case, several theologians of weight admit the probability of the contrary opinion."

Canon 21 enacts that laws made to guard against a general danger continue to bind even though the danger may not exist in a particular case.

¹ Bucceroni, 1, n. 172.

A dispensation is a relaxation of the law in a particular case for some special reason. The law still remains in force, but by a dispensation one who would otherwise be bound to conform to it is withdrawn from the operation of the law. When a law forbids something to be done without leave, as when a religious is forbidden to go out without the leave of his superior, the going out with leave is not against the law, but is in keeping with it. On the other hand, when one eats meat on a Friday, with a dispensation, the act is against the law, but the obligation of the law has been removed from the person dispensed. As jurisdiction is required to make a law, so ordinary or delegated jurisdiction is necessary for granting a dispensation. Ordinary jurisdiction is that which by law is annexed to an office; delegated jurisdiction is exercised by the commission of one who has ordinary jurisdiction (Can. 197). a good cause is always required in order that a dispensation may be lawfully asked for and granted. All should conform to the laws made for the common good, and the superior who without just cause exempts anyone from the duty of obeying a law is unfaithful to his office, and commits the sin of acceptance of persons. If such a superior uses only delegated authority to dispense, he acts not only unlawfully, but invalidly, because he received his authority to grant dispensations only for a good cause. He therefore exceeds the limits of his authority by attempting to dispense without good reason. Similarly, one who asks for a dispensation without good cause does wrong.

A good cause for granting a dispensation must not be altogether trivial, nor is it so grave that of itself it exempts from the obligation of obeying the law. Beyond saying this, it is difficult to be more precise. Much depends on the particular law in question, and on the circumstances of the case.

A legislator can dispense in his own laws, in those of his predecessors, and in those of his subordinates by his ordinary jurisdiction; he cannot dispense in the laws of his superior unless he has received delegated authority for the purpose.

(a) The Pope, then, can dispense in all ecclesiastical laws, even in those which have been made in a general council. He cannot dispense in the natural or divine law; but in vows, oaths, and in marriage which has not been consummated, the Pope can for good cause dispense in the name of God, or at least declare that in certain circumstances they have ceased to exist; for whether he then in the strict sense dispenses, or only declares the sense of the divine law, is a disputed point. In practice there is little difference between the two views.

(b) Bishops can dispense in episcopal laws, and even in those of a provincial or plenary council, unless such authority has been reserved. Although they have no authority over the common law of the Church per se, yet by custom and the presumed consent of the Pope, Bishops can in particular cases dispense from the common law in trivial and doubtful matters, in matters which are of frequent occurrence, as in abstinence, fasting, observance of days of obligation, in the divine Office, and even in other matters of greater moment which admit of no delay.¹

Bishops can dispense not only their own subjects, but strangers also, in such matters as fasting, abstinence, observance of days of obligation, vows, etc.²

(c) Regular prelates have quasi-episcopal authority over their own subjects, and can do for them what Bishops can do for their subjects. Moreover, many privileges have been granted by the Popes to regular Orders, by virtue of which they can dispense not only their own subjects but others also.

(d) Although parish priests per se cannot dispense either in general or in particular laws (Can. 83), yet the power is expressly granted to them to dispense in particular cases and for a good reason even outside their parishes particular individuals and families subject to them, and within their parishes strangers also, from the common law of observing feast days and also from the observance of fasting or abstinence or of both fasting and abstinence (Can. 1245). Those who have the cure of souls in places where there are no parish priests in the strict sense have the same authority from the necessity of the case, from custom, and often by implicit or explicit grant.³

¹ St Alphonsus, 1, n. 190.

² Can. 1245, 1313.

³ Concil. Westmon., d. 23, nn. 1, 3.

I. Definition. Law is said: according to Tully (De legibus, bk. 1), from legendo, that is, from choosing, because among many things it chooses what must be done or omitted; according to St. Isidore (Etymologies, bk. 2, c. 10), from legendo, because it is usually written and therefore read; according to St. Thomas (I-II, q. 90, a. 1), from binding, because it binds or obliges; according to today's philologists, from a root common with the Greek verb legein, that is, to say. But law, with St. Thomas, is usually defined: "A certain ordinance of reason for the common good, promulgated by him who has care of the community" (I-II, q. 90, a. 4). It is said:

1. Ordinance, that is, a disposition or direction to an end through proportionate means.

2. Of reason; concerning this, observe: by the consent of all, both reason and will concur in constituting law; but it is disputed whether law or command is formally an act of reason or of will.

Some teach that it is formally an act of the will, although of a will ruled by reason, because it belongs to reason, even practical reason, only to judge. But the concept of judging excludes the concept of commanding or imposing something. Added to this is that the Sacred Scriptures continually speak of the divine will, never of the divine reason, as needing to be fulfilled. Others with St. Thomas (I-II, q. 90, a. 1; q. 14, a. 1) judge that law is formally an act of reason, "with an act of the will presupposed, however, in virtue of which reason moves through command to the exercise of the act" (St. Thomas, I-II, q. 17, a. 1). The reason brought forward by the defenders of this opinion can be proposed thus: to command belongs to that power to which it belongs to order; for to command is to order someone to perform something. For the one commanding intentionally joins the operation to be done with the practical intellect of the subject, in other words, he imposes the work to be done. But to order formally is an act of reason.

3. For the common good. For law is not ordered to the good of one or of a few, but to the good of the whole community, that is, of all who constitute the community. Nevertheless, this does not prevent a law from sometimes establishing something which directly yields to the good of the prince or of some persons, provided that good is ordered to the common good. Nor does it prohibit a law from being made for a determinate class of persons, for example for soldiers, because a law of this sort can regard the common good, or the good of the whole community (St. Thomas, I-II, q. 90, a. 2; St. Alphonsus, I, 140).

4. By him who has care of the community. For "law properly, first and principally, regards order to the common good. But to order something to the common good belongs either to the whole multitude, or to a public person who has care of the whole multitude; and therefore to establish law belongs either to the whole multitude or to a public person who has care of the whole multitude; because also in all other matters to order to an end belongs to him whose proper end it is" (St. Thomas, I-II, q. 90, a. 3).

5. Of the community. But a perfect community is understood primarily, that is, one which, with respect to its end and the means ordered to that end, is not directly subordinated to another community. Such are the community of the whole human race, the Church, and the civil State. An imperfect community is one which is directly subordinated to another community. Such are a diocese, a religious order, a parish, a municipality, and a family. But to what extent the governors of imperfect communities enjoy legislative power will be explained in n. 107.

6. Promulgated. Several things must be noted concerning promulgation.

a) Notion of promulgation. Promulgation is the authentic intimation of a law to the community as such; authentic, that is, made by the legislator himself or by another in the name of the legislator. It must be done by the legislator or in his name, because it belongs only to the governor of the community to apply law to the community.¹

Promulgation differs: 1. from the divulgation of law, by which, namely, the law is published in several places; 2. from knowledge of the law, by which the law is known in fact. Nevertheless, knowledge is required in order that someone be obliged here and now.

It is disputed whether promulgation pertains to the essence of law (cf. St. Thomas, I-II, q. 90, a. 4);² but the dispute is not practical, because promulgation is at least required in order that law may oblige. This we shall now explain.

b) Necessity of promulgation. Promulgation is necessary in order that a law enjoy the force of obliging. For law holds itself "by way of rule and measure; but rule and measure are imposed by the fact that they are applied to those things which are ruled and measured. Hence, in order that law obtain the force of obliging, which is proper to law, it must be applied to human beings," understand: to the community, "who ought to be ruled according to it" (St. Thomas, I-II, q. 90, a. 4; St. Alphonsus, I, 89). But it is applied to the community through promulgation. Hence one who knows from some other source that a law has been made is not bound to observe it before it has been promulgated (St. Alphonsus, l.c.). And in at least that sense it is declared: Laws are instituted when they are promulgated (can. 8, § 1).

c) Mode of promulgating a law.

a) Of itself, an act placed by the legislator or in his name suffices, from which, morally speaking, the law can come into the knowledge of the community. This is clear from the practice of legislators; likewise from the fact that pontifical laws are promulgated by the very fact that they are inserted into the official commentary (n. 91). Therefore an act is not required by which, morally speaking, the whole community immediately comes into knowledge of the law. It also does not matter which act of promulgating is chosen, provided such an act is employed from which knowledge can be diffused among the members of the community. Hence a law can be promulgated either by affixing it in a public place, or by announcing it by the voice of a herald, or by inserting it into public tablets, or by explicitly or tacitly signifying that a divulgation already made, for example through newspapers or periodicals, is to be held as promulgation.

b) How diverse laws have in fact been promulgated or are promulgated, see, with respect to the positive divine law, n. 80; with respect to ecclesiastical laws, n. 91; with respect to civil laws, n. 91.

Corollary. As soon as law has been promulgated, it obliges of itself all members of the community in first act, as it is said; as soon as, after promulgation, it is known to someone, it obliges him in second act or subjectively.

¹ In Holland, civil laws, adopted by the Assemblies of Deputies and sanctioned by the King, are promulgated by the King (Grondwet, art. 121).

² Cf. Billuart, De legibus, diss. 1, a. 3.

II. Acts of law. Four acts of law are enumerated by St. Thomas, namely: to prescribe, to prohibit, to permit, and to punish. To these, by others, is added to invalidate (cf. the words of the holy Doctor, n. 62).

IV. Difference between law and other things which present the appearance of law. Law differs:

1. From a decree, which is made by public power, not insofar as it is legislative, but insofar as it is executive.

2. From a judicial sentence, which is the application of law to a particular case.

3. Finally, law, insofar as it is taken for a prescriptive or prohibitive ordinance, differs from counsel. "This is the difference between counsel and precept, that precept imports necessity, but counsel is placed in the option of him to whom it is given" (St. Thomas, I-II, q. 108, a. 4). These things are also to be applied to prescribing and prohibiting law, which likewise import necessity.

Question. On what communities can law be imposed?

Response. It can be imposed on the Church and on the civil state, as follows from what has been said (n. 74); likewise, as was explained in the same place, on a certain class of persons; likewise on a diocese and an entire order or congregation, as practice itself also proves. It is doubtful whether it can be imposed on a religious province, a parish, and a religious house; these things are difficult to determine accurately.

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.

I. Notion of eternal law. Eternal law taken broadly, or insofar as it regards creatures both irrational and rational, is defined: "the reason of divine wisdom insofar as it is directive of all acts and motions" (St. Thomas, I-II, q. 93, a. 1). Taken more strictly, it is the reason of divine wisdom insofar as it is directive of human acts; or, as St. Augustine defines it: "the reason or will of God commanding that the natural order be preserved, forbidding that it be disturbed."¹ By the natural order is understood the order founded in rational nature.

¹ Contra Faustum, bk. 22, c. 27.

I. Notion of natural law. "Natural law," says St. Thomas, "is nothing other than a participation of the eternal law in the rational creature" (I-II, q. 91, a. 2). But a natural participation is understood, so that it may be distinguished from the participation of eternal law which is made by means of divine revelation. Now the said natural participation consists in human reason itself, insofar as it naturally knows what must be done or avoided, and intimates or announces this as something to be done or avoided. It is said "naturally," that is, by means of nature itself or by means of the inclination of nature; these things will be clearer from what is to be said.

Corollary. Natural law differs from eternal law insofar as the latter is supreme, unparticipated, eternal, and in God; but natural law is lower, participated, temporal, and in man.

Positive law, as we have said, is divine or human; human law is ecclesiastical or civil.

I. Positive law taken generally.

1. Positive law strictly accepted is law which has for its object that which is neither prescribed nor prohibited by natural law. Therefore it regards either acts indifferent in themselves, which it prescribes or forbids, or good acts but not obligatory ones, which it renders obligatory. But in a broader sense positive law is taken for every law which is promulgated not by the light of reason, but by some external sign, whether it regards the same matter as natural law or another matter.

2. That positive laws are necessary follows from the fact that, when the exigency of social life is considered, natural law does not suffice for ruling human beings. This law is unequal to attaining the said end, first, because with respect especially to more remote conclusions, there is great diversity of opinions. But since the order of society requires unity in acting, an authority is necessary which may explain the more remote conclusions and impose them on all as a norm. Furthermore, natural law contains many things only indeterminately. For example, it prescribes that all should concur toward the common good, but it does not determine in what way they ought to provide this. Hence there is need of authority which may determine indeterminate things according to the diverse circumstances of things and times (St. Thomas, I-II, q. 91, a. 3).

II. Positive divine law.

1. Notion. Positive divine law is positive law made by God. It has been promulgated through revelation. Moreover, this law, insofar as it regards the precepts of natural law, is morally necessary in the present condition of fallen nature, namely so that the said precepts may be known more fully, firmly, and without admixture of error.¹ But once the supernatural order has been posited, positive divine law is absolutely necessary with respect to the precepts of that order, because without it the obligations annexed to the said order cannot be known in any way (St. Thomas, I-II, q. 91, a. 4).

2. Division. Positive divine law is distinguished into primeval, Mosaic, and Christian law.

a) Primeval law is little known to us. It embraces the time which flowed from Adam until the Mosaic law was given; it is usually called the time of the law of nature.

b) Mosaic law, also called the old law, is the law made by God for the Israelite people and promulgated through Moses. I have said: made by God, as is clear from Sacred Scripture.² I have said: for the Israelite people, that is, for the people whom God led out of Egypt, and for their descendants. Therefore the gentiles were not bound by the Mosaic law, except insofar as it was natural. I have said: promulgated through Moses, as Sacred Scripture likewise testifies.³

a) The precepts of the Mosaic law were threefold: moral, ceremonial, and judicial. The notion of these can be gathered sufficiently from the terms themselves.

b) The special end of the said precepts was threefold: to preserve from universal corruption the people from whom the Messiah was going to arise; to join families and individuals more closely with God by ceremonial precepts and prepare them for the coming of the Messiah; finally, to give honorable security of temporal life, abundance of goods, and health of body.

c) The Mosaic law ceased from the death of Christ, or at least from the day of Pentecost, on which the Christian law began to be in full force. Namely, ceremonial and judicial laws are dead, as it is said. Moral laws, although they no longer bind as Mosaic laws, nevertheless bind as natural laws, with the indults of the Old Law also removed. Furthermore, the ceremonial laws are not only dead, but have even become deadly, that is, bringing spiritual death (St. Thomas, I-II, q. 103, a. 4), namely insofar as one would sin who observed them either as having force from the Mosaic law, or with the intention of worshiping God through faith in the Messiah who was to come. But one who observed it with the intention indeed of worshiping God, although not in a prefigurative sense, would place a worship alien from that which God prescribed by himself or through his Church.⁴

c) Christian law, which is also called new, is the law made by Christ for the whole world. Christ promulgated his law by his own mouth, while the Apostles and their successors divulged it and continually divulge it. Moreover, to the Christian law also belong the laws which the Apostles received from the Holy Spirit and promulgated.⁵ The former are called dominical laws, the latter divine-apostolic. There are added the evangelical counsels, namely of poverty, chastity, and obedience, which together with the precepts constitute divine law, which now cannot be removed or changed. Besides, observe:

a) The precepts of the New Law are distinguished into: 1. moral precepts, by which natural law is confirmed; 2. ceremonial precepts, which regard the sacraments and the Sacrifice of the Mass; 3. precepts of faith, whose mysteries Christ explained, increased, and imposed as to be believed.

b) The New Law, as it seems, began to be in full force, or at least to oblige all in first act, from the time at which the Mosaic law ceased, that is, from the death of Christ, or at least from the day of Pentecost.

¹ Vatican Council, constitution Dei Filius, c. II.

² Exod. 19:5-8; 31:18; Lev. 1:1 sq.; Matt. 15:3 sq.

³ Acts 7:53.

⁴ Sweens, Theologia moralis fundamentalis, n. 311.

⁵ Laws which the Apostles made by their own authority are human laws, namely ecclesiastical laws.

III. Positive ecclesiastical law is law made and promulgated by ecclesiastical authority. Now laws made by the Apostolic See are promulgated by publication in the official commentary of the Acta Apostolicae Sedis, unless in particular cases another mode of promulgating has been prescribed (can. 9). Hence the opinion of those who judged that pontifical laws had to be promulgated in individual dioceses in order that they have the force of obliging there must now be altogether rejected. Laws of Ordinaries are usually inserted, and thus promulgated, in the diocesan bulletin.

IV. Positive civil law is law made and promulgated by civil authority. Civil laws are promulgated almost everywhere by the fact that they are inserted in an authentic collection of laws.¹

Note. Law, and especially a collection of laws, is often called ius. Taken in this way, it is usually divided into natural law, the law of nations, ecclesiastical law, and civil law. Concerning the three latter, certain things are to be noted in scholia.

¹ This also has place among us (Wet houdende algemeene bepalingen, art. 2).

According to some, the law of nations is referred to positive law, which is a determination of the law of nature, and thus can be defined: positive law determining the law of nature, introduced by the human race, and indeed through custom. To this belong, for example, the immunity of legates, the commerce of letters and markets with other nations, the prohibition of slavery strictly so called, the prohibition of injuring private goods in war, with the things to be excepted being excepted, etc. It differs from civil law insofar as the latter has been established by individual states and therefore can also be abrogated by individual states, whereas the law of nations has been introduced by the human race and can be abrogated by it alone.

According to others, the law of nations pertains to natural law, from which its precepts are derived as necessary conclusions. Hence, just as natural law, it is immutable. Thus, for example, "the law of nature... neither prescribes nor prohibits the division of stable properties; for it does not absolutely and per se prescribe that this field should belong to Peter rather than Paul, or be common to all. But it is of the law of nature that human beings live peacefully with one another. But human beings cannot live peacefully among themselves unless stable properties have been divided. Therefore stable properties are to be divided."¹

According to some, the distinction from natural law is in this: that natural right belongs to man as an animal, or regards actions which are common to man with brute animals, such as living and procreating; the law of nations belongs to man as such. According to others, the distinction comes from this: that natural law holds absolutely, while the law of nations holds conditionally, that is, once some fact has been posited, for example occupation.

St. Thomas, concerning whose opinion there is dispute, has these words in I-II, q. 95, a. 4: "To the law of nations belong those things which are derived from the law of nature as conclusions from principles, such as just purchases, sales, and other things of this sort, without which human beings cannot live together with one another; this is of the law of nature, because man is naturally a social animal, as is proved in book 1 of the Politics (c. 2, at the beginning). But those things which are derived from the law of nature by way of particular determination belong to civil law, according as each state determines something adapted to itself." And in the same place, ad 1: "It must be said that the law of nations is indeed in some way natural to man, according as he is rational, insofar as it is derived from natural law by way of a conclusion which is not very remote from the principles. Hence human beings easily consented in matters of this sort. Nevertheless it is distinguished from natural law, especially from that which is common to all animals."

Corollary. The law of nations differs from law between nations, or international law, which is constituted by express pacts entered into among the rulers of nations (n. 94).

¹ Zigliara, Ethica, n. 26, III.

I. Ecclesiastical law strictly so called is the complex of canons or laws which have been made by ecclesiastical authority.

II. Ecclesiastical laws are distinguished:

1. By reason of the legislator, into papal, episcopal, and synodal laws.

2. By reason of matter, into dogmatic and disciplinary canons. The former propose truths pertaining to faith and morals; the latter regard the external government of the Church.

3. By reason of the mode in which they were made, into written and unwritten law. Unwritten law is divided into handed-down and customary law, according as it has been established orally or by the consent of the legislator in custom.

4. By reason of territory, into universal and particular laws, according as they bind the universal Church or only certain regions.

5. By reason of time, into: 1. ancient law, from the beginning of the Church until Gratian around 1150; 2. the law of the Middle Ages, from Gratian until the Council of Trent, 1545; 3. new law, from the Council of Trent until the Vatican Council, or rather until the new Code; 4. newest law, from the new Code.

III. Ecclesiastical laws, as they formerly were in force, are found for the greater part in the Corpus Iuris Canonici, as it is called; as they now are in force, in the Codex Iuris Canonici.

1. The Corpus Iuris Canonici consists of five parts, which are: 1. the Decretum Gratiani; 2. the Decretals of Gregory IX; 3. the Liber Sextus of Boniface VIII; 4. the Clementines; 5. the Extravagantes of John XXII and the Extravagantes Communes.¹

2. The Codex Iuris Canonici, arranged by order of Pius X, promulgated by the authority of Benedict XV in the year 1917, on May 27, and in force from May 19, 1918, consists of five books, of which the first treats general norms, the second persons, the third things, the fourth processes, and the fifth delicts and penalties.

¹ They are generally cited thus:

1. Decretum Gratiani. First part of the decree: c. 9 "Palam est" 11 = c. 9, D. 11 = c. 9, D. XI = canon 9 of distinction XI. Second part: c. 24, C. II, q. 7 = canon 24 of cause II, question 7. The treatise De poenitentia is cited in this way: c. 26, D. I de poenit. = canon 26 of the first distinction concerning penance. Third part: c. 15, D. III de consecr. = canon 15 of distinction III concerning consecration. Summaries written by Gratian are cited by the expression "dictum Gratiani" = dict. Gratiani. The cited dictum is determined by distinction or by cause and question.

2. The Decretals of Gregory IX are cited by the characteristic letter X = extra, for example c. 5 X de praebendis (III, 5) = c. 5 X 3.5 = the fifth chapter of the Decretals of Gregory IX concerning prebends and dignities, book III, title 5.

3. The Liber Sextus of Boniface VIII: c. "ut animarum" 2 de constit. in VIto (I, 2) = c. 2 de constit. in VIto (I, 2) = c. 2 in VIto (I, 2).

4. The Clementines: for example Clem. 1 de celebratione miss. (III, 14), or c. 1 III, 14 in Clem. = Clementina 1 de celebr. miss. = c. 1 III, 14 in Clementinis.

5. The Extravagantes of John XXII: c. un. de praebendis extrav. Ioann. XXII (tit. 3) = c. un. extr. Ioan. (3). The Extravagantes Communes: c. 1 de electione, extrav. com. (I, 3) = c. 1 Xvag. co. I, 3.

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

II. Civil law is distinguished:

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

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

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

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

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

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

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

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

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

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

I. Existence of the power. The Church enjoys legislative power. This proposition is of faith from the Vatican Council,¹ and is clear from these words of Sacred Scripture: "But if he will not hear the Church, let him be to you as a heathen and a publican. Amen I say to you: whatever things you shall bind upon earth, shall be bound also in heaven."² Besides, consult the dogmatic theologians.

¹ Session 4, c. 3, dogmatic constitution Pastor aeternus.

² Matt. 18:17-18.

II. Subject of the power.

1. Universal laws can be made by: 1. the Supreme Pontiff (can. 218, 219); 2. an Ecumenical Council (can. 228). In establishing laws, the Supreme Pontiff usually uses the work of the Sacred Roman Congregations, concerning which we shall speak especially in a scholion. When the Apostolic See is vacant, the Sacred College of Cardinals and the Roman Curia have no other power than that which is defined in the constitution of Pius X Vacante Sede Apostolica, December 25, 1904 (can. 241).

2. Particular laws can be established by:

a) A bishop for his diocese, both within and outside a synod, even without the Chapter having been heard (can. 329, § 1; 334; 335; 362).

b) Vicars and Prefects Apostolic enjoy in their territory the same rights and faculties which belong in their own dioceses to residential bishops, unless the Apostolic See has reserved something (can. 294, § 1).

c) An Apostolic Administrator constituted permanently enjoys the same rights and honors, and is held to the same obligations, as a residential bishop. If he has been given for a time, he has the same rights and duties as a Capitular Vicar (can. 315, §§ 1 and 2, 1°).

d) When the see is vacant, the governance of the diocese devolves to the Chapter of the cathedral church (can. 431, § 1); from the Chapter to the Capitular Vicar (can. 432, § 1).

Pastors lack legislative power (cf. can. 83).

e) Plenary councils for several ecclesiastical provinces, and provincial councils for an ecclesiastical province (can. 291, § 2). Nevertheless, it is required that the decrees of the aforesaid Councils be transmitted to the Sacred Congregation of the Council, or to the Sacred Congregation de Propaganda Fide if there is question of mission lands (can. 252, § 2), and be reviewed by it (can. 291, § 1). Once this review has been made, it is permitted that they be promulgated. Permission of this kind involves approval or confirmation called common. But special approval, or approval in specific form, is had if they are confirmed with the clause motu proprio and ex certa scientia. This approval causes the statutes of the Council to become pontifical.¹ In a diocesan synod the sole legislator is the bishop (can. 362).

f) General chapters of exempt clerical religious institutes (cf. can. 501, § 1). But legislative power of this sort does not belong to councils or general chapters of nuns, nor does it seem to have been conceded to general chapters of non-exempt religious congregations of men except by privilege; for apart from dominative power, their Superiors generally do not seem to have ecclesiastical jurisdiction.² Legislative power likewise generally is lacking to Superiors General of religious Orders;³ a fortiori to provincial and local Superiors, and likewise to provincial Chapters.⁴

Question. Who can impose precepts?

¹ Benedict XIV, De Synodo, bk. 13, c. 5, n. 11.

² Wernz, Ius Decretalium, I, n. 94.

³ Yet there seem to be exceptions.

⁴ From these things it is clear that many governors of imperfect communities, although they enjoy the power of jurisdiction, nevertheless lack legislative power. This indeed has place because the Church so disposes; for of itself it is not repugnant that governors of this sort possess legislative power.

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

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

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

¹ Prov. 8:15-16.

² Wis. 6:3-4.

³ Rom. 13:1-7.

⁴ 1 Pet. 2:13-18.

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

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

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

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

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

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

² Encyclical Diuturnum, June 29, 1881.

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

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

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

² Encyclical Diuturnum, June 29, 1881.

IV. The relation between ecclesiastical and civil power.

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

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

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

² Denzinger-Bannwart, n. 1719.

³ Denzinger-Bannwart, n. 1737.

⁴ Denzinger-Bannwart, n. 1744.

⁵ Denzinger-Bannwart, n. 1742.

Proposition. Human law can command external acts and, in the manner soon to be explained, internal acts, which are not opposed to a higher law, which pertain to the competence of the legislator, which are morally possible, and which are necessary or very useful for the common good. I said:

I. External acts. That these can be imposed follows from the fact that human legislative power is ordered at least to the external or public prosperity, peace, and uprightness of the community. Nor are hidden external acts excluded from legislative power, since these also can conduce to the end described; that the superior cannot judge concerning them is accidental (St. Alphonsus, I, 100).

II. Internal acts, of which sort are, for example, acts of faith, meditation, etc. Human power can command these as follows:

1. Human power can command internal acts indirectly, that is, in order to an external act, either because they are required for the moral substance of the external act, or because acts of this sort are or become the complement of it. Furthermore, among acts required for the moral substance of an external act, some are necessarily required for the moral substance of every external act, such as the will of placing it; others are necessary for the moral substance of a particular external act. Considering this, for example, in contracts consent and the will to bind oneself are commanded indirectly; in oaths, the will of swearing; in the administration of the Sacraments, the intention of administering them; in the reception of the Sacraments, the intention of receiving them and a worthy reception; in prayer, the intention of worshiping God, etc. (St. Alphonsus, I, 100, q. 2). The application of a Mass can be considered, for example, as the complement of an external act.

2. As regards the power of directly imposing internal acts, it is certain that this does not belong to the civil state; for the civil state can obtain its end, which is prosperity and public uprightness, without power of this sort.

It is disputed whether the Church can directly command internal acts.¹ Many, especially more recent authors, affirm this; but with St. Thomas (I-II, q. 91, a. 4; II-II, q. 104, a. 5) and St. Alphonsus (I, 100), it seems it must be denied.

For, first, ecclesiastical authority enjoys legislative power because the Church is a society. But power resting on this title does not extend itself to acts which by their nature escape social or external life, of which sort internal acts are. Hence the words of Christ, "Whatever you shall bind upon earth shall be bound also in heaven,"² so far as concerns the legislative power proper to the Church, ought not be extended to acts of this sort. Next, "man can make a law about those things about which he can judge; but the judgment of man cannot be about interior acts which lie hidden" (St. Thomas, loc. cit.). Hence Innocent III says: "It has been given to us to judge only concerning manifest things."³ Finally, the Church, as it seems, has never used power of this sort. Some more recent authors indeed think that the Church sometimes directly prescribes internal acts, for example, the application of a Mass, the meditation on the Most Holy One to be made by the celebrant after receiving the Body,⁴ etc. But it can be answered that the aforesaid acts are not imposed directly but indirectly, namely, in order to an external act, in this case to the Sacrifice, the regulation of which has been entrusted to the Church. Besides St. Thomas and St. Alphonsus, Suarez,⁵ De Lugo,⁶ Billuart,⁷ Benedict XIV,⁸ and many more recent authors adhere to this opinion.

Objection 1. The Church can by law impose whatever conduces to her end, that is, to the salvation of souls. But internal acts also conduce to the salvation of souls.

Response. I deny the major: for, as has been said, the Church can make laws only because she is a society. But power resting on this title does not extend itself to those things which by their nature escape social life, even though of themselves they conduce to the salvation of souls.

Others briefly state the proposed doctrine thus: human power can prescribe external acts; likewise mixed acts, but not merely internal acts.

Note. The controversy concerning internal acts regards the Church's proper jurisdiction, but not her vicarious jurisdiction, that is, the jurisdiction which she exercises in the name of Christ. By force of this jurisdiction she can impose even internal acts, for example, assent to definitions. For the same reason, a confessor can enjoin an internal act upon a penitent as satisfaction. Moreover, it is clear that the Church can constitute an internal act as a condition without which, for example, an indulgence or some other favor will not be obtained. Finally, regular prelates, by force of dominative power arising from the vow of obedience, can command even merely internal acts to a subject, provided, however, that the vow emitted in the Order is so understood.

III. Not opposed to a higher law, namely, neither to divine law nor, for example if there is question of civil law, to ecclesiastical law. To this pertains proposition 56 of the Syllabus: "The laws of morals by no means need divine sanction, and it is by no means necessary that human laws be conformed to the right of nature or receive binding force from God";⁹ and the 57th: "Civil laws can and ought to depart from divine and ecclesiastical authority."¹⁰ Hence laws are invalid, for example, which dissolve marriage, or impede the preaching of the Gospel, or enroll clerics in military service.

IV. Pertain to the competence of the legislator; concerning this, observe:

1. To the competence of the Church belong:

a) Things spiritual by their nature, of which sort are, for example, evangelical preaching and the administration of the Sacraments. Likewise things which are indeed partly temporal, but in such a way that the temporal cannot be separated from the spiritual, such as ecclesiastical benefices. That the aforesaid things pertain to the Church is clear from the doctrine of the Church herself.¹¹

b) Ecclesiastical goods. Nevertheless, if the safety of the commonwealth manifestly demanded it, which could have place in time of war, and there were danger in delay, nor did a relatively grave spiritual harm stand in the way, the State could dispose of them by presumed permission. But if circumstances are not urgent, the matter should be settled amicably with ecclesiastical authority. Apply the same to the revenues of benefices.

c) Mixed things¹² as regards the spiritual element. Thus, for example, marriage as regards validity, impediments, and inseparable effects pertains to the Church;¹³ likewise education as regards religious and moral instruction.¹⁴

d) Mixed things as regards the temporal element, and temporal things,¹⁵ when they, that is, the temporal element and temporal things, are required for the spiritual end. The reason is that the end of temporal things, which is also temporal, must in a conflict yield to the higher spiritual end, to which the Church has the right of directing human beings. Moreover, note proposition 24 condemned in the Syllabus: "The Church does not have the power of inflicting force, nor any temporal power, direct or indirect."¹⁶ Therefore the contradictory proposition is true, that is: the Church has the power of inflicting force, and some temporal power.¹⁷ The practice of the Church, which proves the same thing, is added.¹⁸

The aforesaid power is called indirect, insofar as it does not arise from the Church's power over the natural end of temporal things, but from her power of leading human beings to the supernatural end. Nevertheless, it can scarcely be accurately defined how far that power is to be pressed, or how far it extends itself.

The Church lacks direct power over temporal things, as Pius IX,¹⁹ Leo XIII,²⁰ and Pius X²¹ teach, among others.

Concerning the doctrine of St. Thomas on the power of the Church over temporal things, cf. II Sent., dist. 44, q. 2, a. 3; IV Sent., dist. 37, q. 2, a. 2; II-II, q. 10, a. 10; II-II, q. 12, a. 2; II-II, q. 40, a. 2, ad 3; II-II, q. 60, a. 6, ad 3.

Corollary. Ecclesiastical superiors, if they use indirect power, are to be obeyed, even in doubt whether they exceed the scope of indirect power.

2. To the competence of the civil power belong:

a) Mixed things as regards the temporal element, except the case in which the temporal element is required for the spiritual end.

b) Temporal things, with the case assigned under a) again excepted. Public uprightness also is reduced to temporal things, insofar as it is a good of the natural order; and the civil power ought to protect and promote public uprightness, because this imports a certain common good which individual families cannot attain.

V. Morally possible. Otherwise the law would be observed only by a few, and therefore would tend toward evil rather than toward the common good.²² Nevertheless, even human power can impose very difficult or even heroic acts by law or precept: 1. when necessity of the common good urges. Hence soldiers are rightly ordered to fight with danger to life; hence a bishop can command priests, even non-pastors, and a magistrate can command physicians, not to depart during a time of contagious disease. Nevertheless, when the case occurs, generally the natural law itself will impose the heroic act; for that law prescribes that private good be set after the common good. 2. Very difficult or even heroic acts can be imposed when the hypothesis is supposed of a state freely assumed. Thus the Church binds those initiated into Sacred Orders to celibacy, and religious Superiors can command subjects those things which pertain to the observance of their state or rule.

VI. Necessary or at least very useful for the common good. It is required that a law yield to the common good, because legislative power has been granted for the good of the community. It is required that it be necessary or very useful for the common good, because otherwise a proportionate cause for restricting the liberty and rights of subjects is lacking, and all the more because Authority of itself is bound to protect rather than restrict the rights of subjects.

Note. A law does not affect past acts, neither as regards fault, as is clear, nor as regards invalidation and penalty,²³ unless this is expressly signified (can. 10). Hence the saying: the law does not look backward. Moreover, as regards penalty, it is required that it be ordinary; for an extraordinary penalty has no proportion with an act which was placed at a time when the penalty could not have been foreseen. A comprehensive declaration declares that past acts were affected by an earlier law, but it does not itself affect them.

¹ Thus, for example, Sylvius, Comm. in S. Theol., I-II, q. 91, a. 4; Ballerini-Palmieri, Op. Theol., I, De legibus, n. 332; Noldin, Theol. mor. de legibus, n. 314; Bouquillon, Theol. mor. fund., n. 114; Forstmann, Theol. Mor. Gen., n. 81, and others.

² Matt. 16:19.

³ Cap. 34 X, De simonia, V, 3.

⁴ Ritus celebrandi Missam, X, 4.

⁵ De legibus, bk. IV, cc. 12-13.

⁶ De virtute fidei divinae, disp. 23, sect. 1, nn. 6, 10.

⁷ De legibus, diss. 4, a. 1.

⁸ De Synodo Dioecesana, bk. 9, c. 4, n. 4.

⁹ Denzinger-Bannwart, n. 1756.

¹⁰ Denzinger-Bannwart, n. 1757.

¹¹ Alexander VIII, Inter multiplices, August 4, 1690; Clement XI, Nova semper, November 29, 1714; Accepimus nuper, January 11, 1715; Alias ad apostolatus, October 23, 1711; Pius VI, Auctorem fidei, August 20, 1794; Leo XIII, Sapientiae christianae, January 10, 1890; Immortale Dei, November 1, 1885; Libertas, June 20, 1888; Pius XI, Quadragesimo anno, May 15, 1931.

¹² Those things are called mixed which tend directly both to a spiritual end and to a temporal end, so that in them there are two elements which are so joined that they have a different juridical status.

¹³ Council of Trent, sess. 24, De reformatione matrimonii, canon 12; Pius VI, Auctorem fidei, August 28, 1794; Leo XIII, Arcanum, February 10, 1880.

¹⁴ Council of Trent, sess. 12, c. 8^†; sess. 23, c. 4, canon 7; Pius IX, Tuas libenter to the Archbishop of Munich, December 21, 1863.

¹⁵ Those things are called temporal which tend directly to the temporal end alone, such as agriculture, commerce, etc.

¹⁶ Denzinger-Bannwart, n. 1724.

¹⁷ May 15, 1931.

¹⁸ Cf. Bouix, De Papa, t. III, p. 4, sect. 3.

¹⁹ Encyclical Quartus supra, January 6, 1873.

²⁰ Encyclicals Immortale Dei, November 1, 1885; Diuturnum illud, June 29, 1881; Sapientiae christianae, January 10, 1889; Libertas, June 20, 1880.

²¹ Acta Pii X, t. III, p. 213.

²² "In this there is a great difference between God and man, that God can command some things impossible to nature, because He can make them possible through grace, which He does not deny, as far as concerns Himself, insofar as it is necessary for the observation of precepts; and therefore the precept of God is always about a possible thing" (Suarez, bk. 1, c. 9, n. 16).

²³ Civil laws agree.

I. All human beings are subject to the natural law, even infants and the perpetually insane. The reason is that the natural law is founded in human nature itself (n. 81). Hence neither infants nor the perpetually insane may be induced to violate the natural law¹ (St. Alphonsus, I, 153).

¹ There are, nevertheless, acts which, when placed by infants or by the perpetually insane, or by those who lack reason only actually, for example by the drunk, lose their objective disorder, such as insulting words (St. Alphonsus, V, 78). Nevertheless, it is difficult to determine precisely which acts ought to be referred to this class.

II. To the law of nations, insofar as it is said to pertain to the law of nature (n. 92), the same persons are subject who are subject to the law of nature. Insofar as it is said to differ from the law of nature (n. 92), all are subject to it to whom the matter of that law, that is, of the law of nations, pertains, not only inferiors but also governors. The reason is that this law, as introduced by the consent of all nations, is superior to the governors of individual kingdoms.

III. In order that someone be subject to positive law, it is required that he be the subject of the respective legislator, and, if there is question of human law, that he habitually enjoy the use of reason. I said:

1. That he be the subject of the respective legislator, that is, that he be subject to his jurisdiction in such matter.

2. That, if there is question of human law, he habitually enjoy the use of reason. Namely:

a) The divine legislator can bind all, at least in first act, and, as authors commonly seem to teach, He has in fact bound all.

b) A legislator lower than God is not considered to have received the power of binding, not even in first act, those human beings who cannot know the law and be directed by it. Therefore infants and the perpetually insane are excluded; but not the half-witted or those who have lucid intervals, nor those who lack the use of reason only actually, such as the drunk or sleeping. One who induces these latter, for example a drunk man, to violate positive law does not of itself commit the sin of scandal, because the drunk man lacks formal fault, but he sins against the law to whose material transgression he incites him. Moreover, observe that a perpetually insane person, although he is not subject to the directive obligation of law, nevertheless participates in the rights and other effects of laws. Thus, for example, their acts, that is, acts placed in their name by a guardian, can be invalidated, etc.

Corollary I. All human beings are subject to universal divine positive law. Hence Christ declares: "Going, teach all nations... teaching them to observe all things whatsoever I have commanded you."¹

Corollary II. All baptized persons habitually enjoying the use of reason are subject to universal ecclesiastical law (cf. can. 12). So, at least generally.

Therefore unbelievers are excluded, as those who are not subject to the jurisdiction of the Church. Hence the Apostle says: "What is it to me to judge those who are outside?"² Therefore it is licit, for example, to set meat before the aforesaid persons on days of abstinence.

I said: so, at least generally; for 1. concerning some, certain special things must be noted, which we shall do in § III; 2. concerning subjects of the Eastern Church, can. 1 is to be observed: although in the Code of Canon Law the discipline of the Eastern Church also is often referred to, nevertheless the Code regards only the Latin Church and does not oblige the Eastern Church, unless there is question of those things which from the very nature of the matter affect the Eastern Church also.

Corollary III. To a particular law, whether ecclesiastical or civil, there are subject those who habitually enjoy the use of reason and, if there is question of a law established for a territorial community,³ are both of the territory and in the territory, with the prescription of can. 14 remaining firm. I said:

1. They are of the territory; in other words, it is required that they have domicile or quasi-domicile in the territory of the community. This condition, if there is question of an inferior legislator, for example of a bishop, is necessary, because only through domicile or quasi-domicile is someone constituted a subject of an inferior legislator placed over a territorial community (can. 94). But if the Supreme Pontiff imposes a law on a community of this sort, he is presumed to bind only those who are subjects of the governor of that community, and therefore have domicile or quasi-domicile in his territory.

2. They are in the territory; in other words, it is required that they actually dwell in the territory of the community, namely, a territorial law does not affect subjects except by means of the territory. And this holds also as regards those who have gone out of the territory in fraud of the law, as it is said, that is, for the purpose of being exempted from the law.

3. With the prescription of can. 14 remaining firm, which canon concerns travelers and vagi; considering that canon, some are at times held by territorial law, although they are not in the territory or lack domicile or quasi-domicile in it (n. 131).

¹ Matt. 28:19-20.

² 1 Cor. 5:12.

³ For example, for a diocese.

I. Those not yet seven years old, although they have obtained the use of reason, are not held to ecclesiastical laws, unless something else is expressly provided by law (can. 12). That is, the legislator attends to those things which happen commonly. Moreover, children for the most part lack sufficient use of reason before the completed seventh year (St. Alphonsus, III, 270). I said: unless something else is expressly provided by law; moreover, something else is provided as regards the law of annual confession and communion (can. 859, § 1, and 906).

In doubt whether an impubescent person enjoys sufficient use of reason, before the completed seventh year he is presumed not to enjoy it; after the completed seventh year he is presumed to enjoy it (can. 88, § 3; St. Alphonsus, III, 270). Nevertheless, children who act against the law often seem not to sin mortally because of a defect of sufficient deliberation.

II. The legislator is held by his own law in this way:

1. If he is a member of a legislative college, he is held by the laws of the college equally with the other subjects. The reason is that he is subject to the legislative college. The case obtains in the aristocratic, oligarchic, democratic, and constitutional-monarchical form of government. The same holds as regards bishops with respect to laws which have been passed by a general or provincial Council.

2. If he is an absolutely monarchical legislator,¹ according to all he is held by laws which befit him; but it is disputed whether he is held immediately by his own law, or only by uprightness, by which he ought equally with others to conduce to the common good and to conform himself to others. Some deny that he is immediately held by his own law, because legislative power carries with it coercive power; but the legislator cannot be coerced, for no one is properly coerced by himself. Others affirm it, because the legislator, as a member of society, is subject to himself as superior of society; hence the law affects him equally with others, insofar as it can affect him, that is, as regards directive force (cf. St. Thomas, I-II, q. 96, a. 5, ad 3; St. Alphonsus, I, 154).

Corollary. If the legislator is immediately held by his own law, his obligation is as great as that of the other subjects; if he is held from uprightness alone, of itself he sins only lightly. Nevertheless, by accident he can sin gravely, for example, by reason of grave scandal (cf. St. Alphonsus, loc. cit.).

¹ Such is the Supreme Pontiff, a bishop in his own diocese, and an autocratic monarch in the civil state.

III. Heretics who have passed from the Catholic faith to heresy are held by ecclesiastical laws equally with Catholics. Other heretics, by the consent of all, are held, unless they are expressly exempted,¹ to laws which regard public order, of which sort are, for example, laws which establish impediments of marriage; likewise, according to some, the law of abstaining from servile work on Sundays and feast days. But there is dispute concerning laws which are proximately ordered to the sanctification of souls, such as the law of fasting, abstinence, etc. Yet it seems it must be said that heretics are bound also by the aforesaid laws. For: 1. the Supreme Pontiffs have on repeated occasions declared that "heretics are held by laws," no exception having been added. Thus, for example, Benedict XIV² and Pius VII;³ 2. the responses of the Sacred Congregation de Propaganda Fide⁴ manifestly favor this doctrine; 3. the sources of law, whether ancient or new, furnish no foundation for this exception. Indeed, the new Code does not even indicate that exception in can. 12, by which the persons not bound by ecclesiastical laws are enumerated; moreover, canons 87 and 1254 favor our opinion according to their obvious sense. 4. Finally, the reason of the adversaries, namely that those laws are not observed by heretics, also holds for laws which regard public order, at least for many of them. Indeed, there is a graver reason for exempting heretics from the latter laws, since these multiply not only material sins but also acts, especially invalid marriages.

Note. A reason for cooperating in the transgression of an ecclesiastical law is more easily present if there is question of heretics than if there is question of Catholics, because the former for the most part sin only materially.

¹ When this happens will be explained in its own place; cf. the treatise on Matrimony.

² Brief Singulari nobis, February 9, 1749.

³ Brief Tridentina Synodus, October 8, 1803.

⁴ June 26, 1820 (Collectanea, nn. 747 and 748).

IV. Whether and how far the doubtfully baptized are held by the laws of the Church is sharply disputed.¹ Furthermore:

1. If the fact of Baptism is certain, but its validity is doubtful, they seem to be held by ecclesiastical laws. For order requires that every human being, even in some way in religious matters, for example as regards impediments of marriage, be able to be ruled unto some worship of God by some society, and this by native or devolutive right, as it is called. But it seems especially normal that he can be ruled by the society to which he was ascribed by an external rite, until that rite is proved invalid, indeed publicly proved.²

2. If the very fact of Baptism is doubtful, it is difficult to determine by whom the doubtfully baptized person can be ruled in religious matters: whether, at least in some way, by civil society, because the fact is not presumed but must be proved; or by the Church, whose right perhaps prevails in every doubt.

¹ Cf. Lehmkuhl, II, n. 426; Aertnys-Damen, I, n. 148; Genicot, II, n. 448, note; Straub, De Ecclesia Christi, II, n. 1307, note.

² Cf. Holy Office, February 4, 1891.

V. Travelers and vagi. Considering can. 14:

1. Travelers:

a) They are held by the general laws of the Church, even by those which do not have force in their own territory by reason of abrogation or dispensation. Likewise they are held by laws established by a provincial or national Council, provided that they are staying in the territory of the province or nation.

b) Generally, they are not held by the particular laws of their own territory, from which they are absent; and this holds even if they departed with the intention of being exempted from the law. The reason is that they are not in the territory of the law (n. 125, VI; St. Alphonsus, I, 157). I said generally, because they are held by laws whose transgression does harm in their own territory. Thus, for example, a pastor who is illegitimately absent and omits those things which he ought to perform by office in his own territory becomes a transgressor of the law.

c) Generally, they are not held by the particular laws of the territory in which they are staying. The reason is that they are not of the territory of the law (n. 126, VI; St. Alphonsus, I, 156). The doctrine handed down holds also in the case in which the particular law has force both in the territory in which the traveler is staying and in his own territory. The reason is that in the supposed hypothesis the traveler is not held to observe the law of the place in which he is staying: neither by force of the law having force in his own territory, since he is outside that territory; nor by force of the law having force in the foreign territory, since he is not of the foreign territory. I said generally, because they are held by laws "which provide for public order or determine the solemnities of acts" (can. 14, § 1, 2°). Considering these words of the cited canon, and the particular dispositions of the Code or other dispositions, travelers are held by laws:

alpha) Which determine the solemnities of acts, for example, contracts, including transactions and testaments (cf. can. 1529, 1301, 1926).

beta) Which regulate external order, for example, as regards places in churches and processions.

gamma) Which have been made for travelers as such.

delta) Which regard the reservation of sins (can. 893, compared with the response of the Commission for the Interpretation of the Code),¹ or approved customs as regards the quantity and quality of foods on days of fasting and abstinence (can. 1251, § 1, compared with the Sacred Congregation of the Council), or a local interdict (can. 2269, § 2), or the license of celebrating, or celebret as it is called (can. 804, § 3), or certain rubrics in force in the territory, for example, the calendar to be followed, the prayer commanded.

Note. Nevertheless, as regards liturgical laws, can. 2 is to be noted: "The Code, for the most part, decrees nothing concerning the rites and ceremonies which the liturgical books, approved by the Latin Church, prescribe to be observed in the celebration of the Sacraments and sacramentals and in the performance of other sacred things. Wherefore all liturgical laws retain their force, unless some one of them is expressly corrected in the Code." Hence, for example, a law or precept by which the bishop of the place has prescribed a collect must be observed by all celebrating there, both regulars and seculars (S.R.C., April 3, 1821, n. 2613; March 5, 1898, n. 3985). Note also that in the Canon of the Mass the name of the bishop of the place must be named.

epsilon) Finally, they are held by accident to observe laws if the avoidance of scandal requires this. Indeed, the Sacred Congregation of the Council, in circular letters² concerning priests staying in the countryside outside the diocese, established: "The Ordinaries of places to which priests are accustomed to betake themselves for reasons of health... should establish suitable penalties by which they will be affected if they give scandal... They can also threaten suspension to be incurred by the very fact, if they go to public theaters, cinemas..." (n. 6).

d) They are held to either one if a universal law has been modified in the territory in which they are staying, that is, they are held either to the universal law as it has force of itself, or to the modified law. This is deduced from a response of the Holy Office to the question: "Whether and on what day, in the time of Lent, travelers are held to observe the Saturday abstinence in places where, by a special disposition of the Holy See, the same abstinence must be observed on Wednesday"; the response was: "They are held on either day at will, scandal however being removed."³

e) They can use the privileges and dispensations, for example from the law of fasting, of the place in which they are staying; but they cannot use privileges or dispensations which perhaps have force in their own territory.

2. Vagi are obliged by both general and particular laws which have force in the place in which they are staying (can. 14, § 2).

3. Travelers and vagi are everywhere held by personal precepts which have been imposed upon them, unless the superior does not wish, or even, which has place in some orders in some cases, cannot oblige outside the convent or convents.

Corollary I. One who, in the case in which a universal law has been affixed in different places to different days, twice stays in a place where the law is observed, scandal excluded, satisfies by fulfilling the law once; for this must be considered the mind of the Church. Hence one who, for example, fasted on the vigil of the feast of Saints Peter and Paul is not held to fast again in a territory where the obligation of fasting has been transferred to the following Saturday.⁴

Corollary II. One who, in the hypothesis just supposed, never stays in a place where the law is observed, scandal excluded, seems immune from the observation of the law, since it does not urge in the place where he is actually staying.⁵ There is added the fact that, if this solution were rejected, he would have to observe the law on the day on which the inhabitants of the place in which he is staying would not be held to it; this is not considered to be required by the Church. Nor does it seem that one who acted thus deliberately is to be excepted.

Corollary III. One who is in the place of domicile where a particular feast is celebrated is not held before departure to assist at Mass, provided that he has arrived at a place where the law does not have force before the only Mass, or, if several Masses are celebrated, the last Mass, has begun in the place of domicile. Nor object: if several Masses occur and one of them is celebrated before departure, he ought to assist at this one, because one who foresees an impediment to fulfilling an obligation is bound to anticipate it. For that is true only when someone foresees that he will be impeded while he remains subject to the law; this does not obtain in our case (St. Alphonsus, I, 157, 157, 6°).

¹ November 20, 1920 (A.A.S. 1920, p. 575).

² November 15, 1924.

³ Holy Office, February 9, 1924 (A.A.S. 1924, p. 94).

⁴ Cf. Beyersbergen in N. K. St., 1931, p. 80.

⁵ July 1, 1926 (A.A.S. 1926, p. 312).

VI. Religious, insofar as they are subject to the laws of the local Ordinary, see in the treatise on the duties of religious (cf. can. 615 and 618, § 1).

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

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

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

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

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

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

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

I. Notion of obligation. Obligation is a moral necessity of doing, omitting, or undergoing something. A twofold obligation is distinguished: obligation in first act and obligation in second act, according as the obligation is unknown or known.

II. Existence of obligation. That ecclesiastical laws oblige is of faith.¹ Moreover, this is clear from Sacred Scripture with respect both to ecclesiastical laws² and to civil laws;³ see the testimonies cited in nn. 105 and 112. Besides, if the obligation of law is denied, the very notion of law is destroyed (St. Thomas, I-II, q. 96, a. 4; St. Alphonsus, I, 140). Furthermore every law obliges either immediately, that is, to placing or omitting an act, or at least mediately, that is, to the penalty, if the prohibited act is placed.

But in order that a law oblige, it is not required that the legislator expressly intend obligation, nor that he recognize obligation in conscience; it is enough that he wish to command, or to use his power (n. 162).

Question 1. Whether a law obliges in doubt whether the superior is legitimate.

Response. It must be affirmed, both because peaceful possession seems to bring it about that the doubtful right of the superior prevails over the doubtful liberty of the subject, and because order, that is, peace and tranquillity, requires that in the case the superior be obeyed (St. Alphonsus, I, 98; IV, 47, dub. 2).

Question 2. Whether a law obliges in doubt whether the superior commands something which is illicit or exceeds his power.

Response. It must be affirmed, both because in doubt presumption stands for the superior, and again because order, that is, peace and tranquillity, requires that in the case the superior be obeyed. Except "if the thing commanded is harmful to the subject or to a third party, or very difficult or burdensome" (St. Alphonsus, I, 98); in which case the reasons on account of which obedience is of itself owed are sufficiently weakened.

¹ Council of Constance (sessions 8 and 15); Council of Trent (session 7, canon 8, on Baptism); bull of Leo X against Luther.

² Matt. 18:17; Luke 10:16; Heb. 13:17.

³ Rom. 13:2, 5; 1 Pet. 2:13.

III. Beginning of obligation. A law, as soon as it has been promulgated, obliges at least in first act, unless the legislator assigns another time generally or with respect to some special law. Sometimes also the legislator is considered not to urge his law at all. It is said:

1. As soon as it has been promulgated. Therefore it is not required that the law be accepted by the subjects; rather, as follows from the very notion of law, it receives the force of obliging from the legislator himself. Hence proposition 28 was rightly condemned by Alexander VII: "The people does not sin, even if without any cause it does not receive a law promulgated by the prince"¹ (St. Alphonsus, I, 138).

2. At least in first act; for in order that a law oblige in second act, or subjectively, knowledge of it is required (n. 118). Meanwhile, where the law has been promulgated and the time of obliging established by the legislator has arrived, knowledge is presumed for the external forum.

3. Unless the legislator assigns another time generally or with respect to some special law.² Furthermore:

a) Laws passed by the Apostolic See, understand preceptive laws, not invalidating laws, exert their force only after three months have been completed from the day which is assigned to the number of the Acta, unless by the nature of the matter they bind immediately or, in the law itself, a shorter or longer vacatio has been specially and expressly established (can. 9). Now: first, months must be taken as they are in the calendar, for example, from January 10 to February 10 (can. 34, § 3, 1°). Second, the day assigned to the number of the Acta must be counted, so that, for example, a law promulgated in the number dated January 10 begins to exert force on April 10, not on April 11 (can. 34, § 3, 2°). Third, if the month in which the law begins to exert force lacks a day of the same number as the month of promulgation contains, the law obtains its effect at the beginning of the last day of the month (can. 34, § 3, 4°). Hence, for example, a law published on March 31 begins to exert force at the beginning of June 30.

I said: understand preceptive laws, not invalidating laws; for the latter obtain their effect by the very fact that they are promulgated, unless a vacatio is indicated; generally they urge at once.³

b) Episcopal laws begin to oblige immediately from promulgation, unless something else is provided in them; the manner of promulgation, however, is determined by the Bishop himself (can. 355, § 2).

c) Civil laws generally do not oblige except from some time after they have been inserted into the authentic collection.⁴

4. Sometimes also the legislator is considered not to urge his law, namely:

a) If the law is opposed to an existing custom unknown to the legislator. Namely, in the case it is licit to have recourse to the legislator and not to observe the law until the will of the legislator has been manifested. As regards customs which, by the very disposition of law, the legislator does not intend to revoke, compare what is to be said about custom, n. 191, and can. 30.

beta) If the law is not accepted by the greater part of the community. "For although the first non-acceptors sin, if desuetude has not yet prescribed, nevertheless the others are not held to the law; for the prince is presumed not to wish to oblige these to observe what has not been received by the greater part" (St. Alphonsus, I, 139). In doubt whether the law has been received by use, the law obliges, because the fact of non-reception is later than the promulgated law, and therefore the condition of the law is better (St. Alphonsus, I, 97). In practice, however, the doubt does not easily persist.

To what extent a law is abrogated by desuetude is explained in n. 194.

gamma) Finally, nothing prevents a Bishop, who has judged some disciplinary law inopportune for his diocese, from setting forth his reasons to the Supreme Pontiff with due reverence, and meanwhile considering the obligation of the law as suspended from the presumed consent of the legislator. In addition, if the introduction of some new law would move the people to wonder, it seems that an inferior can wait until the Bishop has inculcated its observance.

¹ Denzinger-Bannwart, n. 1128.

² The time which runs from promulgation until the beginning of obligation is called vacatio.

³ Sacred Congregation of Religious, July 31, 1909 (A.A.S. t. I, p. 699).

⁴ In Holland from the twentieth day after the insertion has been made.

IV. Quality, or species, of obligation. The obligation of a law or precept is the obligation of that virtue from whose motive or formal object the law or precept was passed. The reason is that the species of obligation must be drawn from the species of moral goodness which is intended and imposed by the legislator or preceptor. But the species of moral goodness intended and imposed by the legislator is the same as the motive from which laws or precepts are passed. Hence, for example, the law of the Lenten fast induces an obligation of the virtue of abstinence; the law of the natural fast before Holy Communion induces an obligation of the virtue of religion. Consequently, he who transgresses the former sins against abstinence; he who transgresses the latter sins against religion (St. Alphonsus, V, 33). These things will be clearer once the motives from which diverse laws and precepts are passed have been set forth. Now:

1. Natural laws and positive-divine laws are passed from the motive of that virtue whose moral goodness the act has by its nature; for God is considered to intend this moral goodness. Hence, for example, the act of rendering to someone his strict right obliges from commutative justice.

2. Human laws are considered to have been passed in this way:

a) If the act imposed by its nature has the moral goodness of some virtue, the law is considered to have been passed from the motive of that virtue; for the legislator is deservedly presumed to intend that moral goodness. Nevertheless it can happen that the legislator "draws the act to some other special virtue, or to opposition with some other special virtue" (St. Alphonsus, V, 33); suppose the case in which the Church prohibits, also from the motive of religion, an act unjust by its nature, of which sort is, for example, the sale of a sacred thing for a price greater than the value of the material. Then the seller sins both against justice and against religion (St. Alphonsus, loc. cit.). It can also happen that the legislator is induced extrinsically or remotely by a motive other than the moral goodness which is in the act to pass the law. Thus, for example, the Church is also led by the motive of religion when she prescribes that a fast be observed before certain feasts. But this does not prevent the legislator, in the precept itself, from regarding only the moral goodness which is in the act; hence one who does not observe a fast of this sort sins against abstinence alone, and not against religion.

b) If the act imposed is indifferent by its nature, it should be gathered from the declaration of the legislator, from the words of the law, or from the circumstances, from the motive of which virtue the law was passed.

Corollary. He who transgresses a law does not sin against obedience, because in fact laws are not passed from the motive of that virtue.

3. By what reason precepts, strictly so called, are passed is difficult to determine. We think it must be said as follows:

a) Parents and masters, considered according to common estimation, are presumed to command from the motive of obedience; and this cannot be denied if there is question of an act which by its nature does not have moral goodness. Hence the transgressor of the precept commits a sin of disobedience; this does not prevent the prohibited matter from also being able to contain an injury of another virtue, for example, chastity.

b) Superiors of religious,¹ considered according to common estimation, are presumed to command from the motive of obedience if they command without addition, and this can scarcely be denied if there is question of an indifferent act; from the motive of religion, if they add: in virtue of obedience, or: in virtue, or by force, of the vow. Nevertheless, as was said about parents, the prohibited matter can also involve an injury of another virtue.

c) A vow obliges from religion alone, unless the thing promised to God is already owed from elsewhere.

Corollary. Although any sin, as we shall note in its own place, involves manifold foulness, such as disobedience, ingratitude, irreverence toward God, etc., nevertheless those foulnesses or malices are not found in the sin according to formal species, because they are not prohibited from the formal motive of obedience, gratitude, reverence, etc. Hence also, which it helps to note specifically because of the singular difficulty, a sin of injustice, for example theft, does not contain the species of sin against charity, because an act of injustice, for example theft, is not prohibited from the motive of charity, but from the motive of justice; for the act of leaving or restoring to each one his own right by its nature involves the moral goodness of justice, not of charity. Likewise a sin against charity, for example scandal, is not opposed to justice, because the act by which someone is for another an occasion of spiritual ruin does not involve the moral evil of injustice.

¹ Cf. Raus, Obedientia religiosa ut est virtus et votum.

VI. Quantity of obligation. 1. The obligation of law is for the most part grave, if there is question of grave matter; it is always light if the matter is light. The reason is that the legislator for the most part intends an obligation corresponding to the matter; indeed, if there is question of light matter, he cannot even impose a grave obligation. For such a power, if it were exercised, would tend to the ruin of subjects, and therefore is not considered to have been granted.

Theoretically, it must be said this way: in order that an obligation be grave, it is required both that the matter be grave and that the legislator intend to oblige under grave sin. Otherwise it is light. It is said first: that the matter be grave; this is so true that the legislator cannot even oblige under grave sin if there is question of matter light in every respect. It is said second: that the legislator intend to oblige under grave sin. The reason is that he can impose grave matter under light sin; for just as it depends on the will of the legislator that an obligation arises, so also it must depend on his will whether a grave or a light one arises. Then it is established that there are Constitutions of Orders which impose grave matter, for example, monastic fasting, only under light sin (St. Alphonsus, I, 143).

2. Grave obligation is recognized:

a) From Sacred Scripture, as if it declares that some sin is hateful to God, or excludes from heaven; if it attaches a woe, etc.

b) From definitions of the Church; yet observe: first, that there are few definitive declarations in this matter; second, that many condemnations easily leave a refuge, insofar as only the contradictory is certainly true.

c) From the consensus of the holy Fathers, since they are authorized interpreters of Tradition.

d) From the consensus of theologians.

e) From the gravity of the terms, that is, from the fact that the legislator uses more severe words, for instance if he says: "We strictly prohibit"; if he commands in virtue of holy obedience, under the protestation of divine judgment, under the indignation of the holy Apostles Peter and Paul. Nevertheless the civil legislator repeatedly uses graver words, for instance: it is most severely prohibited, etc., although the law does not oblige under grave sin, indeed is considered merely penal.

f) From the gravity of the matter; namely, if the matter is grave either by reason of itself or by reason of the end, the superior, unless he declares the contrary, is considered to oblige under grave sin.

g) From the gravity of the penalty, for example, excommunication, irregularity; likewise suspension and interdict, at least if these are total and for a long time. The civil legislator, however, not rarely establishes a grave penalty, although there is question of a law obliging less gravely, or even merely penal (St. Alphonsus, I, 144-146).

Note. Natural law and divine-positive law always oblige under grave sin or under light sin according as the matter is grave or light.

An affirmative law is one which imposes an act; a negative law, one which prohibits an act. Furthermore a negative law obliges always, insofar as it is never licit to do what is absolutely prohibited. An affirmative law does not always oblige, but only at the time at which the act must be placed according to the law. Hence the saying: an affirmative law obliges always, but not to always; a negative law obliges always and to always.

I. Notion. A law is said to be founded on common danger if it is passed to prevent a general danger. Moreover, it can be founded on the general or common danger either of sin or of fraud. On the danger of sin: as a law which prohibits the reading of evil books; on the danger of fraud: as a law which invalidates clandestine marriages. Laws of this sort are less correctly said by many to be founded on the presumption of the common danger of sin or fraud, because the common danger is not presumed, but certain.

II. Obligation of a law founded on common danger. Laws founded on common danger, or, as the Code has it, passed to prevent a general danger, urge even if in the particular case the danger is absent (can. 21). The reason is that that on which the law is founded, namely common danger, exists. Moreover the legislator very prudently obliges all, even those for whom the danger does not subsist: both because it is expedient that all be obligated uniformly, for example, to avoid scandals necessarily going to arise from the fact that some do not observe the law; and because many would persuade themselves that the danger is absent from them.

Corollary. A law which invalidates clandestine marriages or formless testaments, or prohibits the reading of evil books, urges even if in the particular case the danger of sin or fraud is absent.

In the previous Question we considered the internal principles of human acts—that is, habits, good and bad, from which they proceed. Now we shall turn to the external principles, good and bad, that move one to one’s acts. The external principle that moves to evil is the demon, who tempts us to sin; the external principle that moves to good is God, who instructs us by His law and helps us by His grace to fulfill it. Temptation has been discussed already, and grace belongs to Dogmatic Theology; the next Question to be considered, therefore, is Law.

(Summa Theologica, I-II, qq. 90-92.)

Definition.—Law is an ordinance of the reason for the common good promulgated by him who has authority in the community.

(a) It is an ordinance, that is, a command or prohibition which has obligatory and lasting force. Hence, advice is not a law, because not obligatory; a rule that binds only during the lifetime of the lawgiver or of those who received it is not strictly a law, because not enduring.

(b) It is an ordinance of the reason, since the rule and standard of human acts is reason (see 64 sqq.). Hence, the arbitrary will of a ruler commanding what is against reason would not be law, but rather iniquity.

(c) It is made for the common good, that is, it must tend to promote, directly or indirectly, general happiness, which is the end of society. Hence, the commands of a tyrant which benefit a few at the expense of public peace and prosperity are not truly laws.

(d) It is made by him who has authority, that is, by the person or persons who have the lawmaking power according to the form of government. Hence, the decisions of an advisory body or the decrees of a usurper are not laws.

(e) It is made by the proper authority in a community, that is, as here understood, in a self-sufficing community, which has its own means for attaining its end and is independent in its own order of other societies. Hence, the regulations made by parents for their family are not called laws, since the family is not a self-sufficing society.

(f) It is an ordinance that has been promulgated, that is, brought to the notice of those whom it binds. Hence, a law that has been drawn up but not published as such, is not obligatory even for those who know of its existence. A law becomes obligatory, however, as soon as it has been promulgated, and the presumption then is that the law is known; but he who is inculpably ignorant is not guilty of formal sin if he breaks the law.

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.

Collision of Laws.—Not infrequently it happens that opposite laws seem to call for fulfillment at the same time, as, when in case of unjust attack it seems that one is bound to defend oneself and bound not to injure the other party. Hence arises a conflict of obligations and rights. But the difficulty is only apparent; for, since God is a just and wise lawgiver, He does not intend either that one should be held to impossibilities, or that a superior obligation should yield to one that is inferior. Hence, the rule in such cases of apparent collision of laws is:

(a) if a person can recognize which of the two obligations is superior, he is bound to follow that one; (b) if he is unable to discover after careful examination which obligation has the greater claim, and must decide at once, he may decide for the law whose observance seems to him safer; or, if he sees no difference as regards safety, he may decide for either as he wishes. If the decision is wrong, the error is involuntary, and hence not imputable as sin.

When the contending precepts belong to different categories of law, the higher law must be followed. (a) The natural law has precedence over the positive law, divine or human. For example, the natural law of self-preservation allowed David to eat the loaves of proposition, a thing forbidden by the positive divine law. The same law of self-preservation allows a starving man to take what does not belong to him according to human laws, if it is necessary for his life. The same law of self-preservation excuses one from assisting at Mass, if one is very ill.

(b) The positive divine law has precedence over human law. Example: The command of Christ to his Apostles to preach His Name was to be obeyed rather than the command of the Sanhedrin to the contrary (Acts, v. 19). (c) The ecclesiastical law has precedence over civil law, for the end of the Church is higher than that of the State, and the Church’s judgment about the means to her end should prevail.

The precedence of ecclesiastical over civil law does not mean that the Church has the right to interfere in matters that belong to the jurisdiction of the State, or that the Church should insist on settling every dispute by its own action alone.

(a) A law on matters purely civil and political made by the Church in opposition to a law of the State would not prevail over the latter, for, as the Church admits, “whatever is to be ranged under the civil and political order is rightly subject to the civil authority” (Leo XIII).

(b) A law on matters directly or indirectly spiritual, made by the Church but not necessary to her end, can be made the subject of negotiation or even of compromise by the Church in order to avoid a conflict of laws; in fact, the Church has shown her willingness to make concessions, where possible, for the common peace and happiness.

The Basis of All Laws.—Prior to every other law and the ground and principle of all laws is the Eternal Law; for, since this is the plan of Divine Wisdom directing from eternity all acts and movements to their particular ends and to the end of the universe, it follows that all other laws are reflections of the eternal plan and realizations of the divine decree. The Eternal Law differs from other laws in various ways:

(a) as to duration. The Eternal Law existed before anything was made, whereas all other laws begin to exist when they are promulgated;

(b) as to breadth of application. The Eternal Law regulates, not only contingent things (such as actions) but also necessary things (such as that man should have a soul, hands and feet); for all things created, whether they be contingent or necessary, are subject to divine government. Human laws, as is evident, cannot regulate what is necessary (e.g., it would be foolish for them to decree that men must or must not have souls);

(c) as to subjects. The Eternal Law rules, not only rational creatures (i.e., angels and men), but also irrational creatures, such as matter, plants, and animals. The former are ruled through commands, which require that they direct themselves to their End; the latter are ruled through the inclinations given them by God, which move them to the ends He desires them to attain. Human laws cannot regulate the acts of irrational creatures, for these creatures cannot understand a command as such, and man cannot give them natural inclinations (e.g., it would be foolish to make a law for cats against the catching of birds).

(Summa Theologica, I-II, qq. 93, 94.)

Meaning.—The Natural Law is so called for the following reasons: (a) it is received by man, not through special promulgation, but along with his rational nature. Hence, St. Paul says that the Gentiles, who had not received the laws specially promulgated, were a law unto themselves, that is, through their rational nature (Rom., ii. 14); (b) it includes only such precepts as can be known or deduced from the very nature of man, and thus some pagans fulfilled the Law of Moses naturally, i.e., as regards its natural precepts (Rom., ii. 14); (c) it can be known from the natural light of reason without instruction, being a law written on the heart of man (Rom, ii. 15).

The Natural Law is defined theologically as a participation of the Eternal Law in man. Three elements constitute its essence in its integrity: (a) a passive participation of the Eternal Law consisting in man’s nature and faculties with their inclinations to their proper acts and ends. This man shares with all creatures. (b) an active participation in the Eternal Law proper to man. This consists in the activity of man’s intellect through which he shares in God’s providence and government in a special way as one who can rule himself and others. Reason, reflecting upon the natural inclinations and ordering them to their proper acts and ends, formulates (c) a dictate or command of the practical reason. This command constitutes the essence of Natural Law. “Hence the Psalmist after saying (Psalm, IV. 6): Offer up the sacrifice of justice, as though some one asked what the works of justice are, adds: Many say, Who showeth us good things, in answer to which he says: The light of thy countenance, O Lord, is signed upon us. Thus the Psalmist implies that the light of natural reason, whereby we discern what is good and bad, which is the function of the Natural Law, is nothing else than an imprint on us of the divine light. It is therefore evident that the Natural Law is nothing else than the rational creature’s participation in the eternal law” (Summa Theol. I-II, q. 91, a.2).

Relation of the Natural Law to Other Laws.-(a) The Natural Law is inferior to the Eternal Law; for, while the Eternal Law exists in the mind of God, underived from any other law and is regulative of all created things, the Natural Law exists in the mind of man, as a derivation and image of the Eternal Law and a rule for man’s acts only. (b) It is superior to Positive Law, for all Positive Law is a deduction from or a determination of Natural Law.

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.

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).

Properties.—Since the Natural Law is the reflection of God’s Eternal Law impressed on the rational nature of man, it has the following properties: (a) it is both declarative and imperative; being immanent in man, it declares to him his duty; being transcendent in its origin, it speaks with the voice of authority; (b) it is universal, or for all, for it declares the necessities of nature, which are the same in all men; (c) it is unchangeable, that is, it admits of neither abrogation, nor dispensation, nor emendatory interpretation, for the essences of things, on which it is based, do not change; (d) it is recognizable and indelible, that is, it cannot fail to be known and cannot be forgotten by mankind, for it is promulgated through the light of reason given to man.

The Natural Law is of universal obligation. It is in force in all places, at all times, and for all persons. (a) Thus, those who have not the use of reason, such as infants and the insane, are subject to the Natural Law on account of their human nature which is injured by any transgression of its inclinations. Their ignorance, of course, excuses them from formal sin (see 24 sqq., 97 sqq.). Example: It is sinful to induce or permit children to blaspheme or become intoxicated, not only because of scandal or of harm done to them, but also because such things are necessarily repugnant to their dignity as human beings. (b) those who have the use of reason are subject to the Natural Law, and their transgressions are imputable as formal sins and incur the debt of punishment.

The Natural Law is unchangeable, not as regards additions, but as regards subtractions. (a) Additions may be made to the Natural Law, for, in many points not determined by it, it is well that supplementary regulations be made to provide for particular situations. These additions, made by Positive Law, divine and human, are amplifications rather than changes, for they must not be out of harmony with Natural Law. (b) Subtractions may not be made from the Natural Law—that is, there can be no exception when it declares that a certain thing must always be observed, and there can be no abrogation when it declares that a certain thing must be observed usually.

As to the question whether any precepts of the Natural Law may be dispensed or not, distinction must be made between two kinds of dispensation.

(a) A dispensation in the strict sense is granted when a legislator relaxes for a particular case the obligation of a law, although the subject-matter of the law still remains. Example: Titus is in the class of those who are bound by the law of fast, but he is exempted by competent authority from the obligation of the law.

(b) A dispensation in the wide sense is granted when the subject-matter of the law is taken away by the legislator himself or by another, so that it ceases to be comprehended under the law, although the obligation of the law still remains. Example: Balbus owed money to Caius, but, as Caius forgave him the debt, he is no longer in the class of those who are bound by law as debtors to Caius; he is not exempted, however, from the obligation of the general law that one must pay one’s debts.

Human Authority and Modification of the Natural Law.

(a) Additions to the Natural Law may be made, not only by positive laws of God, but also by human laws of Church or State, through the introduction of that which Natural Law permits, or the determination or confirmation of that which Natural Law contains implicitly or explicitly. Examples: Division of property rights introduced by the law of nations; conditions for valid contracts determined by particular codes; the laws against theft and murder confirmed by definite penalties prescribed for those crimes.

(b) Subtractions from Natural Law cannot be made by any human authority, for God has not delegated His power of dispensing which He has as supreme owner of all things. Examples: No human authority could authorize a father to sacrifice his innocent son, nor permit a servant to carry away the effects that belong to his employer.

Apparent Cases of Dispensation from Natural Law made by Human Authority. (a) The Church frees from the obligation of vows, contracts and promissory oaths, from impediments to marriage, from espousals, etc. In so doing, however, she does not dispense from the Natural Law that vows, contracts, etc., should be fulfilled, but only declares in the name of God that the subject-matter of an obligation contracted by act of man’s will has become unsuitable for vow, contract, etc., and hence is no longer comprehended under the law.

(b) Societies or private individuals can free from the obligation of paying or returning to them what they have a right to, as when a creditor forgives a debt, or an owner permits a thief to keep what he stole. In so doing, however, they do not dispense from the law of nature that one should pay one’s debts and not keep ill-gotten goods; they only change the quality of the things in question so that they cease to be due another or ill-gotten, and hence no longer fall under the law. This differs, too, from the dispensation that God can grant; for He can transfer rights without the consent of the immediate owner (see 310).

From the foregoing it follows that the Natural Law is so unchangeable that it cannot be abrogated or properly dispensed, or given an emendatory interpretation. But, though the law itself remains, there are cases in which non-observance of it is excused from guilt. These cases can be reduced to physical and moral impossibility.

(a) In cases of physical impossibility (i.e., when the powers requisite for observance are wanting), one is manifestly excused; for law is reasonable, and it is not reasonable to require impossibilities. Examples: Infants are not guilty of sin against the Natural Law, when they do not pray; for they lack the use of reason, which is presupposed by the notion of prayer. He who is unable to work is not obliged to earn support for relatives.

(b) In cases of moral impossibility (i.e., when a law cannot be kept without the infringement of a higher law or the loss of a higher good), one is also excused; for it is unreasonable to prefer the less to the more important. Example: Titus lends a revolver to Balbus. Later he asks that it be returned to him, as he wishes to kill himself. Now, property is less valuable than life, and hence Balbus is unable in this case to observe the law which requires that things borrowed must be returned.

Moral impossibility is also defined as the inability to observe the law without serious injury or loss to oneself or a third party. Serious injuries are such as deprive some one of great goods, such as the use of reason, life, knowledge, friendship, health, reputation, property. Serious losses are such as prevent one from obtaining notable goods, The following rules indicate when grave inconvenience excuses, and when it does not excuse, from the guilt arising from the non-observance of Natural Law:

(a) when the law is negative (i.e., prohibitory), no inconvenience excuses from sin; for that which is forbidden by the Natural Law is always morally evil, and hence more to be shunned than even the greatest physical evil, or death. Example: One is obliged, under grave or light sin, as the case may be, to forfeit all temporal goods rather than blaspheme, murder, lie, etc.;

(b) when the law is affirmative (or mandatory), an inconvenience which, all things considered, is really and relatively grave, excuses from sin; for that which is commanded by the Natural Law is not always morally obligatory, but only at the right time and in the right circumstances (see 371), and hence its omission is not always morally evil. Examples: Sempronius vowed that he would go on foot to a place of pilgrimage, but when the day came he had a sprained ankle that would be badly injured if he walked. Caius received a jewel stolen from Balbus and promised that he would return it at once to the owner, but he finds that he cannot do so now without danger, either of the arrest of himself or of the one who took the jewel. Titus sees a person who has been seriously injured lying by the roadside, but he is tired, and neither gives help himself nor summons aid. In the first two cases the inconvenience is grave, and hence Sempronius may ride to the place of pilgrimage, and Caius may return the jewel to Balbus later; but the inconvenience of Titus is slight, and does not excuse him from sin.

Just as the Natural Law is unchangeable, because based on the unchangeable Eternal Law instituting the nature of man, so is it easily knowable, because it is promulgated by the light of reason. Hence: (a) invincible ignorance of the entire Natural Law is impossible in any person who has the use of reason; (b) complete forgetfulness of the Natural Law by mankind is impossible.

The Natural Law can never be erased from the hearts of men. (a) In abnormal circumstances only, as when the general power of reasoning has been weakened or lost, can the Natural Law be forgotten. Thus, to a degenerate who becomes violently insane murder and other crimes may appear as good acts. But no community could govern itself by the standards of madmen and long survive. (b) In normal circumstances (i.e., as long as the general power of reasoning remains unimpaired), the Natural Law cannot be forgotten, as far as its general principles or immediate conclusions are concerned, although it may be overlooked or lost sight of when it is applied to particular cases, or when remote conclusions are deduced from it.

The causes of wrong applications of the Natural Law are the following:

(a) Some causes are involuntary. Thus, the correct application may be difficult, as when more than one moral principle has to be considered and applied; or, if the case is not difficult, the person who makes the application may be mentally undeveloped, or his mind may be blinded on account of his bad education or environment. Examples: The races who saw no infamy in robbery committed against their neighbors, lived in a wild age when such acts of violence seemed necessary as measures of self-protection. The savage killed his aged parents, because to his untutored mind this seemed an act of mercy.

(b) Some causes are voluntary, such as neglect of the truth, vicious habits, etc. Examples: St. Paul blames the pagans for their idolatry, because they had darkened their own minds about God. Pirates and bandits who came to regard violence as necessary for their own defense were responsible for their state of mind, inasmuch as they had chosen a life of crime.

(Summa Theologica, I-II, qq. 98-108.)

Meaning.—The Positive Divine Law is the law added by God to the Natural Law, in order to direct the actions of man to his supernatural End, to assist him to a better observance of the Natural Law, and to perfect that which is wanting in human law.

(a) The Last End of man is not natural, but supernatural (see 20), and hence it was necessary that, in addition to the precepts which guide man towards his natural beatitude, there should be added precepts that will guide him towards his supernatural beatitude: “The Law of the Lord gives wisdom to little ones” (Ps. xviii. 8).

(b) The light of natural reason was sufficient to instruct man in the Natural Law, but through sin that light had become obscured, with the result that evil customs set in, and very many were at a loss how to apply the Natural Law, or applied it wrongly. Hence, it was most suitable that the Natural Law should be summed up in brief commandments and given externally by the authority of God. This was done through the Decalogue, which is a part of the Positive Divine Law of both the Mosaic and the Christian dispensations: “The testimony of the Lord is faithful” (Ps. xviii. 8).

(c) Human laws are the product of fallible human judgment; they can direct only such acts as are external, and they are unable to forbid or punish many evil deeds. Hence, it was necessary that there should be positive divine laws to supply for what is wanting in human law: “The law of the Lord is unspotted, converting souls” (Ps. xviii. 8).

The Positive Divine Law differs from the Natural Law as to subject-matter, permanence, and manner of promulgation.

(a) The precepts of the Natural Law are necessary, since they follow as necessary consequences from the nature of man, the precepts of the Positive Law of God, excluding those that are external promulgations of the Natural Law, are not necessary, since they follow from the free decree of God raising man to that which is above his nature.

(b) The precepts of the Natural Law are unchangeable, since the nature of man always remains the same. Of the precepts of the Positive Law of God some were changed, because given only for a time (such as the ceremonial laws of Judaism); others, absolutely speaking, could be changed, because not necessarily connected with the end God has in view (e.g., the laws concerning Sacraments).

(c) The precepts of both kinds of law are immediately from God; but the Natural Law is promulgated only in a general way, through the light of reason given to man along with his nature, while the Positive Law of God is proclaimed by special commands (e.g., “thou shalt not steal”).

The Positive Divine Law contains two kinds of precepts, viz., natural and supernatural commandments. (a) The natural precepts were given in order to recall to the minds of men the laws knowable through reason which had become obscured through passion, custom or example. The Commandments given to Moses on the tablets of stone renewed the natural precepts which God had written through reason on the hearts of men. (b) The supernatural precepts were given in order to point out to men the duties their supernatural destiny imposed. Example: The precepts of faith, hope, charity.

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.

The Mosaic Law.—This was the special law of God to the Jews, the people chosen by God as the race from which the Saviour of the world was to come. It has two periods: the period of preparation and the period of the Law.

(a)The period of preparation for the Law began with the Promise or Covenant given to Abraham. A law is not given except to a people (see 285), and, as the peoples of the world at that time had returned to the general corruption that reigned before the Deluge, God chose Abraham to be the father of a new nation in which true religion should be preserved until the Redeemer of the world had come. The rite of circumcision was ordered as a mark of the covenant and a sacrament of remission.

(b) The period of the Law began with the promulgation of the Decalogue on Sinai. The descendants of Abraham had grown into a nation and had been freed from slavery, and they were thus ready to receive a special law. Their history thereafter shows how God trained them according to the pattern of the Mosaic Law and prepared them for the providential mission, which, through the Messiah, should be theirs, of giving to the world the perfect and universal Law of the Gospel.

The Excellence of the Mosaic Law.—(a) The Law was good (Rom, vii. 12): it commanded what was according to reason and forbade what was opposed to reason; it had God for its Author and prepared man for the Law of Christ. (b) The Law was imperfect (Heb., vii. 19); it was given for a time when men were spiritually but children and not ready as yet for the teaching and morality of the Gospel; it forbade sin and provided punishments, but the necessary helps for observing it came only from faith in Christ, the Author of the New Law.

The Subjects of the Mosaic Law.—(a) The Jewish people were bound by the Mosaic Law. God had chosen Abraham by gratuitous election to be the forefather of the Messiah, and it was by gratuitous election that He gave the Jews a Law which would lend them a special holiness befitting the promises made their race. The Jews, therefore, were bound to more things than other nations, as being the Chosen People; just as clerics are bound to more things than the laity, as being the ministers of God.

(b) The Gentiles were not bound by the laws peculiar to the Mosaic Code, but only by the common precepts, natural and supernatural, that were in force in the state of the Law of Nature. But it was permitted to Gentiles to become proselytes, that by observing Mosaic rites they might more easily and more perfectly work out their salvation.

The Duration of the Mosaic Law.—(a) The Law began when experience had proved that knowledge is not sufficient to make man virtuous, that is, at a time when, in spite of the Natural Law, the peoples were turning to polytheism and vice: “The Law was given on account of transgression” (Gal, iii. 19).

(b) The Law ended when experience had shown that external observance is not sufficient for holiness, that is, at the time when Judaism was degenerating into formalism, putting the letter before the spirit of the Law: “What the Law could not do, God sending His own Son, hath condemned sin in the flesh, that the justification of the Law might be fulfilled in us” (Rom., viii. 3, 4).

Deuteronomy, vi. 1, describes the Mosaic Law as precepts, ceremonies and judgments; and the commandments of the Old Testament can be classified according to this threefold division. (a) The moral precepts defined the duties to God and man that arise from the dictates of reason and the Natural Law; (b) the ceremonial prescriptions were determinations of the religious duties to God contained in the moral law, and rules concerning the performance of worship based on the positive ordinance of God; (c) the judgments were determinations of social duties contained in the moral law; they were the civil or political code of the theocratic nation which had its force from the positive ordinance of God.

The ceremonial laws, which prescribed the manner of performing the divine worship or of acting as befitted the Chosen People, and which prefigured the worship and people of the New Testament, were numerous, in order that the Jews might be more easily preserved from pagan rites and customs. The ceremonies they regulated were of four kinds: (a) the sacrifices through which God was worshipped and through which the sacrifice of Christ was prefigured (e.g., the holocausts, peace-offerings, sin-offerings); (b) the sacred times and places, things and persons set apart in order to give more dignity to divine worship and to foreshadow more distinctly the good things to come; (c) the sacraments by which the people or sacred ministers were consecrated to the worship of God and were made to prefigure Christ (e.g., circumcision and the consecration of Levites); (d) the customs which regulated the details of life so that both priests and people might act as became their special calling, and might be types and figures of the Christian people (e.g., the laws about food, dress, etc.).

We may distinguish four periods in the history of the Mosaic ceremonial law: (a) from Moses until Christ, it was the divinely ordained manner of worshipping God, and was obligatory for the Chosen People; (b) at the death of Christ, when the New Testament began, the Mosaic ceremonial ceased to be obligatory; (c) until the Gospel had been sufficiently promulgated (i.e., until the destruction of the City and the Temple of Jerusalem), the ceremonial law was permitted to Jewish converts, not as prefiguring Christ, but as a form of divine worship; (d) after the Gospel had been sufficiently proclaimed, it was no longer lawful to conform to the Mosaic observances.

The judgments or judicial laws of the Old Testament were intended; (a) to regulate the relations of the people of God to one another and to strangers according to justice and equity, and thus to prepare them for the coming of the Messiah; (b) to be, consequently, in some sort a figure of the social constitution of the Christian people.

There were four kinds of judicial precepts:

(a) those concerning rulers. The government was monarchical and aristocratic, as being administered by Moses and his successors with the assistance of a body of elders; but it was also democratic, inasmuch as the princes were chosen from the people and by the people;

(b) those concerning citizens. Excellent laws concerning sales, contracts, property, and the administration of justice, are laid down in the Pentateuch;

(c) those concerning foreigners. The relationship of the Jews to other nations, whether in peace or in war, was regulated by wise and humane laws;

(d) those concerning families. The rights and duties of husband and wife, parent and child, master and servant, were carefully and considerately provided for.

The Law of the New Testament.—This is the special law given by God through Christ to the whole world, and which endures till the end of time. Its character will be understood most readily from a comparison of it with the Law of the Old Testament.

(a) In both Testaments grace and the Holy Spirit are given through faith in Christ (the internal law), and doctrines, commandments and ceremonies are prescribed (the external law). But, whereas the Old Testament is principally a law of works, the New Testament is principally a law of faith (Rom., iii, 27); the former is concerned mostly with the external conduct, the latter regulates, not only actions, but also the internal movements of the soul, of which faith is the first.

(b) In both Testaments men are justified and saved through faith and works (Heb, xi., 39; Rom., i. 16), and not through the external written law or the letter. But it is only through Christ, the author of the New Law, that men are enabled to perform what the law requires: “The law was given by Moses; grace and truth came by Jesus Christ” (John, i. 17).

What is moral theology? - If the name is considered, it is that part of theology which is concerned with morals. But if the thing itself is considered, it can be defined: that part of theology which, resting upon divine law manifested through revelation, inquires what is lawful and what is unlawful in human actions, so that it may direct these actions in order to eternal life. The human act is the subject of this science. The lawfulness or unlawfulness of human acts is the material object of this science. But the lawfulness or unlawfulness of human acts, insofar as it is demonstrable by divine law manifested through revelation, or by the revealed word of God, constitutes the formal object of this science. From this also the proper source of this science is clear. Therefore moral theology is distinguished from moral philosophy, because the former directs human acts to the supernatural end, the latter to the natural end of man; the former rests especially upon the light of faith, but the latter upon the natural light of reason. Hence it is easily clear how great is the excellence, necessity, and usefulness of moral theology.

By divine law manifested through revelation; for the principles of morals flow from the same sources as dogmas. They are contained first of all in Scripture, and are made known by Tradition, of which splendid monuments exist in the writings of the holy Fathers. Writings of this kind do not contain a distinct and methodical account of moral discipline, but certainly, together with the dogmas of faith, they present the principles of morals, besides also several particular cases, in which what is lawful and what is not lawful is discussed, as is especially to be seen in Tertullian, Cyprian, Chrysostom, and Augustine. But those who afterward treated moral discipline according to the method of the schools explained those principles more fully, adapting them to the individual cases which arise day by day.

What is lawful, what is unlawful; for in this it is distinguished from Ascetic and Mystical theology. Ascetic theology adds to Moral theology, commonly so called, in that it does not so much direct human acts so that they may simply be good, as hand down the manner by which human life may be adorned with all the virtues. Mystical theology, moreover, adds to common sanctity the manner of a special union with God, which is granted not to all, but only to some. Moral theology is also distinguished from Canon Law. For in the latter the laws by which the Church is governed are properly explained, especially as regards her whole external government. But Moral Theology also considers these laws, certainly, yet insofar as they bind in conscience and must be observed, and consequently what, also in regard to them, is lawful or unlawful in conscience. S. Th. I. p. q. I., 1. 2. q. 91. a. 4.; Commentary On the Nature of Moral Theology.

What have been the vicissitudes of Moral Theology? - There have been various vicissitudes of Moral Theology, both as regards its didactic development and as regards the development of the general rule of morals in doubtful cases.

As regards its methodical form, various ages can be distinguished in it, and they are the following six.

The first age, from the beginning, in the time of the Apostles, was when moral doubts were resolved by the decisions of the Supreme Pontiffs, by the decrees of Councils, and by the opinions of the Fathers, who especially in their homilies and sermons to the people explained those things which are necessary for rightly informing morals and for salvation.

The second age succeeds a little later, when in the first centuries of the Church the use of canonical penance became established, and Penitential Books were employed. Special treatises on moral matters were gradually multiplied in this age, either together with speculative doctrines or separately, up to the twelfth century, when, after St. Anselm, Archbishop of Canterbury, who died in the year 1033, and after St. Bernard, first Abbot of Clairvaux, who died in 1153, Peter Lombard, called the Master by antonomasia, wrote the books of the Sentences, in the third of which he treats of the virtues and of vices; he died in 1164. Benedict XIV, de Syn., l. 11, c. 11; Decree of Gratian, at the end.

The third age extends from the thirteenth century to the fourteenth. In this age sacred practical doctrine made great progress, especially through the work of William of Paris, who died in 1249, St. Bonaventure, O. Min., who died in the year 1274, St. Thomas Aquinas, O.P., who died in the year 1274, called the Angelic Doctor, St. Raymond of Pennafort, of the Order of Preachers, who died in the year 1275, and Peter Paludanus, O.P., who died in the year 1342, who for St. Alphonsus is a doctor of perfect knowledge.

The fourth age embraces the two following centuries, the fifteenth and the sixteenth; and it is distinguished by the notable saints who flourished in this age. Among others are celebrated St. John of Capistrano, O. Min., who died in the year 1440, St. Bernardine of Siena, O.S. Fr., who died in the year 1444, St. Lawrence Justinian, who died in the year 1455, St. Antoninus, Archbishop of Florence, who died in the year 1459, Thomas Cardinal Cajetan, O.P., who died in the year 1534, a man of most subtle genius, Francis de Vitoria, O.P., who died in the year 1546, Dominic Soto, O.P., who died in the year 1560, Peter Soto, O.P., who died in the year 1563, Bartholomew Medina, O.P., who died in the year 1581, St. Charles Borromeo, who died in the year 1584, Martin Azpilcueta, called Navarrus, who died in the year 1590, Cardinal Francis Toletus, S.J., who died in the year 1596, and Louis Molina, S.J., who died in the year 1600.

The fifth age embraces the seventeenth and eighteenth century up to St. Alphonsus M. de Liguori, and it is distinguished by many learned scholastic theologians who expressly expounded and illustrated moral questions in copious treatises. Among many others there excel Thomas Sanchez, S.J., who died in the year 1610, Francis Suarez, S.J., who died in the year 1617, Leonard Lessius, S.J., who died in the year 1623, Basil Pontius, O.S. Aug., who died in the year 1629, the Salmanticenses, O. Carm. Disc., from 1631 to 1722, Martin Bonacina, who died in the year 1631, Giles Coninck, S.J., who died in the year 1633, Ferdinand De Castro Palao, S.J., who died in the year 1633, Paul Laymann, S.J., who died in the year 1635, Francis Sylvius, who died in the year 1649, Augustine Barbosa, who died in the year 1649, Cardinal John De Lugo, who died in the year 1660, Peter Marchant, O. Min., who died in the year 1661, Antoninus Diana, Cleric Regular Theatine, who died in the year 1663, Zacharias Pasqualigo, Cler. Reg., who died in the year 1664, Hermann Busembaum, S.J., who died in the year 1668, Henry Pirhing, S.J., who died in the year 1670, Thomas Tamburinus, S.J., who died in the year 1675, Anacletus Reiffenstuel, O.S. Franc., who died in the year 1703, Claude La-Croix, S.J., who died in the year 1714, Patrick Sporer, O. Min., who died in the year 1714, Prosper Lambertini, Benedict XIV, who died in the year 1758, and Lucius Ferraris, Ord. Min., who died in the year 1760.

The sixth age takes its beginning from St. Alphonsus M. de Liguori, who died in the year 1787, and extends down to our own times. St. Alphonsus, most outstanding in genius and doctrine as well as in sanctity of life, and divinely given for exterminating Jansenist errors and severities, wrote a Moral Theology in which he treats all questions learnedly, eruditely, and with the highest prudence, recounting almost all that had been handed down before him; hence he was deservedly adorned by the Church with the title of Doctor. Hence it happened that in more recent times Moral Theologians followed St. Alphonsus as leader and master. In our age very many compendia of Moral Theology have been published.

The name indeed is modest, but the works are certainly of notable merit. For in these compendia the whole doctrine of Moral Theology is handed down briefly and in order, and in them is contained, accurately set forth, not only the doctrine of the old theologians accumulated in the course of time, but also that which has been acquired for Moral Theology either from the more recent Acts of the Holy See and of the Sacred Roman Congregations, or also from the progress of the natural sciences. Nor indeed have more expansive treatments been lacking in this age, as can be seen in the treatises On Justice and Law and On Contracts of D. Carriere, and in the scholia, annotations, and dissertations of Fr. Anthony Ballerini, S.J. Zitelli, Enchirid.;

Hurter, Nomenclat.; D'Annibale, Summ., 4th ed., p. 1, n. 2 ff.; Bouquillon, Inst. Theol. Mor. Fundam., Introduction V.

As regards the development of the general rule of morals in doubtful cases, for several centuries each one defended his own opinion, according to the varying weight of the reasons, as seemed better to him. In the year 1572 Antonius Cordubensis first began to contend on behalf of law, because of the authoritative and obligatory prerogative of law, and accordingly he established that in doubt the safer part must always be held. But in the year 1577 Bartholomew Medina, professor at Salamanca, began, on the contrary, to contend on behalf of liberty because of the prerogative of its natural right, and accordingly he established that in doubtful matters he acts prudently and licitly who follows an opinion truly probable and favoring liberty, even after leaving aside the more probable opinion in favor of law. He was the first who reduced the doctrine concerning probable opinions into a system. From this Tutiorism and Probabilism arose.

In the following seventeenth century Synnichius, who died in the year 1666, brought Tutiorism down into Rigorism, while Caramuel brought Probabilism into Laxism: for the former denied that we can follow an opinion favoring liberty, even if it is most probable, which was condemned by Alexander VIII in the year 1690; the latter, on the opposite side, affirmed that we can follow an opinion even slightly probable, which was proscribed by Innocent XI in the year 1679. Hence in that same century Probabilism was widely diffused, and became a very common and very received doctrine in every school: of almost all the disciples of St. Thomas, of almost all the disciples of Scotus, of almost all the Fathers of the Society of Jesus, and of other theologians, with few exceptions.

But since many of these probabilists favored liberty too much, asserting that it was lawful to follow even an opinion that was probably and doubtfully probable, the Probabilists were divided among themselves, and there arose moderate Probabilism, standing in an opinion truly and gravely probable, and broad Probabilism, proceeding even to doubtful probability. Hence, while the Fathers of the Society of Jesus commonly remained in Probabilism, the Thomists passed over to Probabiliorism, requiring for liberty an opinion more probable than the opinion favoring law. Zitelli, in his Enchiridion, mentions as the head of the probabiliorists Francis Genet, who died in the year 1702.

In the eighteenth century, to overthrow broad Probabilism and Probabiliorism at the same time, St. Alphonsus M. de Liguori undertook to defend moderate Probabilism, establishing that it is lawful to use a probable opinion even in competition with one more probable for law, whenever the former has a certain and grave foundation. And for that reason the Holy Doctor called his system moderate Probabilism, against rigid Probabiliorists and lax Probabilists, Equiprobabilism, with aeque taken according to the nature of true probability, not according to equality of degree.

But since the word nevertheless was not free from ambiguity in itself, hence after St. Alphonsus another system arose, which the Redemptorist Fathers defend, namely the system of Equiprobabilism, by which it is established that it is lawful to follow an opinion favoring liberty when it is equally or a little less probable than the opinion favoring law; but that it is not lawful when the latter is much more probable than the former, which in truth falls back into Probabiliorism. La-Croix, vol. 1, prodromal book, Franc. Ant. Zachariae and Quaest. facti of Stephen De Champs; Zitelli, Enchir.; D'Annibale, p. 1, n. 8 ff.; Bouquillon, Inst. Theol. Mor. Fundam., Introduction II; E. E. M. n. 114, 119.

Whether ignorance diminishes sin? - Antecedent, invincible, efficacious ignorance, or ignorance that is the cause of sin, "which totally excuses from sin, because it totally takes away the voluntary, does not diminish sin, but altogether removes it." S. Th. 1. 2. q. 76. a. 4. "Ignorance which is not the cause of sin, but has itself concomitantly to sin, neither diminishes sin nor increases it." S. Th. l. c., since it in no way influences the act of sin; nor consequently does it take away sin, insofar as it does not render it involuntary, but it takes it away only insofar as it renders it non-voluntary. S. Th. l. c. a. 3. But cf. 48.

Consequent ignorance that is purely vincible, or even crass or supine, efficacious, or the cause of sin, "diminishes the voluntary and consequently sin." S. Th. l. c. For the voluntary is had only indirectly or in the cause. Consequent affected ignorance, efficacious, or the cause of sin, "seems to increase the voluntary and sin; for from the intention of the will to sin it comes that someone wills to undergo the loss of ignorance on account of the liberty of sinning." Thus S. Th. l. c. a. 3 and others. But others deny this, and their opinion, says St. Alphonsus, H. A. tr. 19, n. 8, truly cannot be called improbable. For he who transgresses the law knowingly and prudently openly contemns it; he who affects ignorance still seems to fear the law somewhat. But one must distinguish; for ignorance of this kind can proceed from various affections and motives.

If someone affects ignorance because of weariness of learning, or not precisely so that he may not be drawn back from sin, but so that he may not be drawn back from such an action to which he strongly adheres, or even so that he may not be drawn back from sin, the sin is not thereby increased. For ignorance of itself diminishes the notion of a human act and formal contempt of the law. Moreover, if for this reason he wills to be ignorant, so that he may not be drawn back from sin, therefore if he knew, perhaps in reality he would be drawn back from sin. Therefore that ignorance shows a will not so confirmed in such a sin.

But if someone affects ignorance because he absolutely wills the sin itself, whether in reality it is prohibited or not, then the sin is increased, because that ignorance is a sign both of great affection toward sin and of greater contempt; since with such affection he pursues sin that he is willing also to suffer the loss of ignorance, and thus to sin, although perhaps the thing in itself is not a sin. Therefore although that ignorance also excuses, because it always conceals the condition of the work, nevertheless it accuses and increases the sin by reason of its cause. Luke 23:34; Acts 3:17; Suarez, tr. 2, d. 4, s. 2; Lugo, de Poenit., d. 16, s. 4, n. 183; Struggl, l. c. n. 36.

Since sins which proceed from ignorance are voluntary only in the cause, and consequently have no other malice than the malice which was present in the positing of the cause itself, the gravity or lightness of the sin which follows from it must be taken from that cause, not from the gravity or lightness of the thing which is derived from it. For this latter is voluntary and culpable only insofar as the ignorance itself is voluntary and culpable. And thus from lightly culpable ignorance of a physician or confessor, grave effects can follow, which consequently do not bring grave fault.

Can there be an invincibly erroneous conscience concerning the precepts of natural law? - "It is certain that in the first principles of natural law, as also in the proximate conclusions and certain obligations of one's own state, invincible ignorance is not given, because by the very light of nature such things are known to all, except to him who closes his eyes lest he see them.... On the contrary, however, the unanimous opinion of theologians is... that in mediated and obscure conclusions, or those remote from the principles, invincible ignorance is indeed given and must be admitted." L. 1. 1. n. 8. 170 seq.; Struggl tr. 3. q. 1. n. 10-13; S. Th. Quodl. 3. a. 36, De Verit. q. 17. a. 2; De Malo q. 3. a. 8; Rom. 2:14. 15. In the first principles of natural law, for example: good is to be done, evil avoided; the highest good is to be loved, evil detested; what you do not wish for yourself, do not do to another; thanks are to be given to benefactors, etc. In proximate conclusions, for example: God is to be worshiped, parents are to be honored, theft is not to be committed, etc. In remote conclusions, for example: private revenge is not to be exercised, abortion is not to be procured, etc. Eternal law, existing in the divine mind, most perfectly exhibits the order of things. Natural law, which is the application of eternal law, exists in the human mind. Therefore natural law, by the very fact that it is manifested through human reason, falls short of the highest perfection of eternal law.

Hence it happens that not always what we think and judge, in more difficult matters, corresponds to the rules of the divine mind, and remains obscure and unknown to us. Whence that thing, although materially and in itself it pertains to natural law, nevertheless does not pertain formally and as regards us, since it has not been sufficiently promulgated to us by the natural light. - Wirceburg. De Actib. hum. c. 1. a. 3.

It is licit to follow a truly probable opinion, the safer being left aside, whether equally probable or even truly more probable, where the question concerns only the honorableness of the action, by forming for oneself a conscience not directly, but from reflex principles.

The proposition is against probabiliorists and equiprobabilists. The first part is proved. Probabiliorism and equiprobabilism are refuted.

Proof 1. The system of the probabiliorists and equiprobabilists is not practical. For it is very difficult even for the doctors themselves to establish which opinion is more probable, which notably more probable. What appears to one more probable or notably more probable appears to another less probable and notably less probable. Indeed, what to one and the same person previously appeared more probable, far more probable, afterwards, the matter having been weighed better, seems less probable and much less probable.

Proof 2. For either the probabiliorists and equiprobabilists say that it is licit to act from the immediate judgment of the more probable or notably more probable opinion; or they say that it is licit to act from a mediate judgment, namely by force of the principle: a doubtful law does not oblige; an uncertain law does not produce a certain obligation; the will without knowledge of the law cannot be bound by its obligation. The first cannot be said, for although the opinion is more probable or notably more probable, nevertheless it is not certain; and without a certain conscience it is not licit to act. But the other, as is clear, leads not into probabiliorism or into equiprobabilism, but into simple probabilism. For where there is true probability against the law, the law is already doubtful and uncertain, and knowledge of the law cannot be had.

Proof 3. For we would be bound to follow the more probable or notably more probable opinion insofar as these approach more closely to truth. But this is false; for an opinion simply probable can approach more closely to truth, and a sentence can be false which bore before itself a certain greater appearance of truth. Moreover, here the question does not concern speculative truth but practical truth; the question does not concern adhesion of the intellect simply to truth, but the obligation of the will, which is not bound by the obligation of the law unless the law is certain and knowledge of the law is had.

The second part is proved. Simple probabilism is proved.

Proof 1. The proposition established is clear from the authority of very many and very grave theologians, who not only hand it down, but also affirm it as common doctrine, such as Suarez, Lugo, Struggl, La-Croix, Pignatelli, Vasquez, Elbel, Castropalaus, Sporer, etc. Cf. these Instit. Mor. ed. 4. Hence S. Alph. in Dissert. de usu moderato opinionis probabilis in concursu probabilioris, 2nd ed., Naples 1755: "We undertake to prove the last, more benign, and most common opinion, namely that it is licit to use a probable opinion even in concurrence with a more probable one in favor of the law, whenever that opinion has a certain and grave foundation." And certainly, although many after the Jansenists defended probabiliorism, nevertheless by far the greater part of theologians embraced probabilism. But he who in practice follows a doctrine which very many and very grave theologians teach, and which the doctors commonly hand down, acts prudently; but he who acts prudently acts honorably. For this reason, in the Dissertation just cited, S. D. immediately adds: "Add to these especially the argument, namely that if the benign opinion had been false, it certainly would by no means have been commonly received everywhere by doctors as it truly was received; or at least the Church would not have tolerated it, permitting souls commonly to walk by this way of perdition, as the adversaries cry out, deceived by such blind guides." And, as the same S. Alph. has it l. 6. n. 460, par. Haec autem, "nor is it an obstacle that several opinions which are circulated are not condemned by the Church, and yet by others more commonly are reputed lax; for the Church does not condemn all opinions which regard particular cases, although it does not approve them; but opinions which regard the universality of consciences, the Church does not approve nor keep silent about, as S. Aug. said, Epist. 119: The Church of God tolerates many things, and yet those things which concern faith or good life, it neither approves nor keeps silent about." Cf. L. 1. 3. n. 669 toward the end, Hoc unum, etc.; Bouquillon Theol. Fund. de Consc. c. 2. a. 1. § 2.

Proof 2. He who in practice follows an opinion which stands within the bounds of right reason and prudence acts prudently, and consequently honorably. But he who in practice follows a truly probable opinion, the more probable and safer being left aside, follows an opinion which stands within the bounds of right reason and prudence. Therefore. - The major is clear of itself. For what is more honorable than to follow right reason and prudence, which is right reason concerning things to be done? And Benedict XIV, C. Apostolica Constitutio § 21, indeed hands down this rule of acting, namely that we should follow the opinion which reason persuades and authority confirms. Moreover, it is by no means consonant with right reason, and especially with divine goodness, to wish to oblige man to perform somehow that which remains prudently uncertain to man himself after diligent inquiry, whether it is required by the order or not; especially since doubts of this kind are very frequent because of the weakness of the human intellect itself. This would be to impose unbearable burdens. L. 58. 86; S. Th. 1. 2. q. 19. a. 10 ad 1. But the minor is clear from the very nature and definition of a truly probable opinion, which is not changed by the concurrence of another opinion, although more probable and safer. And this S. Alph. himself openly affirms in the definition of the more probable opinion; for he says that its contrary is judged probable. Cf. 112. Muzzarelli Dissert. de Regul. mor. opin., Rome 1807, p. 30 seq.; L. 1. 1. n. 79.

Proof 3. S. Alph. says this in his Op. Mor. Theol., 6th ed., Rome 1767: "There are two principles on which, relying, I defend the licit use of a probable opinion. The first, that a doubtful law, in the conflict of two equally probable opinions, does not oblige, because a doubtful law is not sufficiently promulgated. The other, that an uncertain law cannot introduce a certain obligation, because the obligation of law is posterior to liberty, with which man has been endowed by God." Each of these principles is explained and proved at length by S. D. l. 1. n. 66 seq., H. A. tr. 1. n. 37 seq. But when a truly probable opinion is present, although it is in concurrence with another more probable and safer one, each principle is still verified, namely that the law is uncertain if the question concerns its existence, or that it is doubtful if the question concerns its interpretation, because it is obscure; and therefore neither does the law have the power of actually obliging, since it has not been sufficiently or certainly promulgated; "for then the doubt whether the law exists is sufficiently promulgated, but the law is not promulgated," L. 1. 1. n. 70, Turin ed. 1846; nor is man, having certain possession of his liberty, bound to reckon himself despoiled of it because of an uncertain law: for antecedently to every law, each possesses his own liberty, since man must first be conceived as free, and then the law which is imposed on man. Therefore. L. 54 seq.

Now, that the law in that hypothesis is really doubtful or uncertain, so that it may prudently be regarded as such, whence that twofold axiom flows, is clear from the very nature of probability. For where true probability is present, greater probability does not of itself destroy the lesser; and this philosophers and theologians commonly affirm, and S. Alph. expressly hands down, H. A. tr. 1. n. 29 and l. 1. n. 40, where he says that the contrary of the more probable is also judged probable. The same S. D. explains this in this way in the Dissertation ed. 1755, n. 13: Greater probability does not destroy the lesser, "unless that lesser probability is drawn from the same principle, or unless the more probable opinion has in its favor so convincing an argument that the contrary seems truly improbable, or no longer gravely and certainly probable. But otherwise it must be said if the excess is not notable, and the opposed probability receives force from diverse principles, as almost always happens in the concurrence of opinions; for then the less probable opinion is by no means deprived of its grave probability." Indeed the probability or improbability of some opinion is not the same as its truth or falsity, so that one excludes the other; but it is a worthiness of meriting prudent assent, arising from grave motives, which, although greater or lesser, do not contradict one another if they are taken from diverse principles. But if they exhibit an argument so convincing that the opposite is judged improbable, we are already outside the case of greater or lesser probability, since then one opinion will be certain or probable, the other false or improbable.

Hence S. D. l. 6. n. 604, raising the question: "Whether a penitent can be absolved who wishes to follow an opinion contrary to that which the confessor holds," responds: "The common and to-be-followed opinion teaches that the confessor not only can, but is also bound under grave sin (where the question concerns grave matter, H. A. tr. 16. n. 118), to absolve a penitent who wishes to follow a probable opinion, although the opposite seems more probable to the confessor.... This common opinion standing, strengthened by so many authorities and reasons, I do not see how a confessor can with a safe conscience deny absolution to one wishing to follow an opinion which appears probable to the penitent himself, indeed perhaps more probable, if not directly at least reflexively, as probabilist authors commonly think, who by following a probable opinion in concurrence with a more probable one judge that they embrace an opinion reflexively more probable, as being confirmed by graver foundations and by the most common authority of doctors." S. D. has the same doctrine in his last work, H. A. tr. 16. n. 118; and to this opinion he adds no limits except the following: namely that "the opinion of the penitent have some probability, so that the confessor, although he does not hold it as solidly probable, nevertheless does not repute it altogether false... evidently erroneous." Cf. also l. 1. n. 87, where S. D. after Gerson says: "Theological doctors ought not to be quick to assert that some things are mortal sins where they are not most certain about the matter: Note, WHERE THEY ARE NOT MOST CERTAIN." Lugo Resp. Mor. l. 1. d. 26. n. 3; Pignatelli Cons. Can. tom. 8. cons. 15.

Proof 4. In order that law certainly oblige, it must be sufficiently promulgated, S. Th. 1. 2. q. 90. a. 4. But sufficient promulgation of law is not had if the law is not certain and manifest. Hence in canon law it is generally established: "In these things, concerning which the law is not found expressed, proceed, equity being preserved, always inclining toward the more humane part, according as you will see persons and causes, places and times, to require." C. Ex parte tua 11 de Transact. And in civil law it is decreed: "Whenever the interpretation of liberty is doubtful, response must be made according to liberty." L. 20 de R. I. "In a doubtful matter, to follow the more benign interpretation is no less just than safe." L. 192 de R. I. But the reason is that law imposes moral necessity, and therefore must necessarily bind the will. But it cannot necessarily bind the will except through knowledge. Therefore, knowledge of the law being excluded, the will remains morally free. S. Th. De Verit. q. 17. a. 3. Now if a most probable opinion is present against the law, it is evidently clear that knowledge of the law is lacking. For certainty and evidence cannot be had with the greatest opposite probability; indeed not even with simple probability. Hence S. Alph. says: "To constitute a doubtful law, true probability to the contrary suffices." L. 1. n. 57, ed. 1762. 1763.

Confirmation 5. By the authority of S. Thomas. Law is a certain rule and measure. In order that a rule direct and a measure measure, it must be applied to the thing which must be directed and measured. S. Th. 1. 2. q. 30. a. 4. Therefore law must reach the subjects whom it directs; but it reaches them through knowledge. S. Th. De Verit. q. 17. a. 3. Accordingly law must be certain and evident. Therefore, if the law is uncertain, namely if its existence is not established, if the law is doubtful, namely if the meaning of the law is obscure, the obligation of the law ceases; a precept does not bind except through knowledge. S. Th. l. c. Hence those axioms: An uncertain law cannot introduce a certain obligation; A doubtful law does not oblige. For the effect cannot surpass the cause. These things S. Thomas says altogether generally, nor does he distinguish between a law having against it a less probable, or equally probable, or more probable opinion. Therefore the whole question from the Angelic Doctor is this: whether a law having against it a more probable, equally probable, or less probable opinion can be said to reach man through knowledge, to bind him by means of knowledge, through knowledge, through the power of knowledge. But knowledge is not given if true probability is against it. Hence every question about mortal sin is determined dangerously unless the truth is had expressly. S. Th. Quodl. 9. a. 15. And S. Alph. l. 3 after n. 139, Epist. Resp.: "But in order that some action be affirmed absolutely to be a mortal sin, a probable opinion is not enough, nor even a more probable one; for the more probable does not exclude rational fear of erring; whence it does not bring about that the law does not remain doubtful, and that the opposite cannot be true, if it is truly probable."

Confirmation 6. Innocent III allowed a spouse suffering from impotence a three-year trial, C. Laudabilem 5 de Frig., and did not prescribe that it must first be seen whether potency was more probable, or at least equally probable. In the eighteenth century, when certain Indians in the Kingdom of Paraguay who had been converted to the faith had several wives, and questions arose concerning the validity of their marriages, Urban VIII responded to John de Lugo, afterwards Cardinal: "Where the opinions of doctors concur as probable on each side, those opinions are to be followed which, for the condition of places and barbarian men, are more favorable." Urban did not say that the more probable opinions were to be followed, nor did he say where equally probable opinions concur, but absolutely where probable opinions concur. Carden. Cris. Theol. Diss. 2. § 553. E. M. 119.

Nor indeed is it of any force, in order to overturn all the aforesaid things in almost one word, to object against them that probabilism has already been condemned by Innocent XI. For Innocent XI only commanded that liberty be given to the Fathers of the Society to defend probabiliorism and to refute probabilism, if they wished. Cf. E. M.; Wirceburg. De Actib. hum. c. 4.

You will resolve: From the aforesaid axiom several practical cases of negative doubt can be resolved, in which every true probability is lacking, namely whether the time of the obligation of a law has arrived or passed. "In doubt of beginning, for example, whether you have completed 21 years, you are not bound to fasting, because then possession is for liberty. Otherwise in doubt of passing, for example, whether on Saturday the hour of midnight has passed, you cannot eat meat, for then the law possesses. Thus also, if you doubt whether you have 16 years for profession, or 25 years for priesthood, you cannot profess or be ordained. Thus commonly." L. 1. 1. n. 99. 32.

What must someone do if, placed between two precepts, he remains doubtful which one he ought to choose, for example, if the precept of hearing Mass urges, and he ought to assist someone gravely sick? - This conscience is usually called perplexed. Someone, when such a case occurs, must sufficiently, as much as is in him, inquire into the truth so that he may put aside the doubt. When the truth has been sufficiently inquired into, and the doubt remains, he can and must choose that which seems to him the lesser evil; and, if each seems equally grave, he can choose either. This is true even if someone culpably cast himself into that perplexity, provided that he is sorry for the past fault. The reason is that there is no obligation to impossibilities, and therefore then the lesser obligation ceases; or, if they are or seem equal, or because of ignorance someone does not know how to discern which is lesser, either ceases; and even if someone thinks that by acting so he sins, he does not really sin from defect of liberty. - Suarez d. 12. s. 5; Lessius on q. 19. d. 19. a. 6. d. 9; L. 1. 1. n. 10; Elbel 141.

You will resolve: If the one acting chooses that which seems to him the greater evil, he sins according to the excess of the evil apprehended, since he freely chooses this excess.

If you doubt whether you have already satisfied some obligation, are you still bound to satisfy? - R. Affirmatively, if the doubt is merely negative. For in such a doubt no prudent reason of satisfaction is present, and therefore it is impossible by some reflex principle to form for oneself a conscience concerning non-satisfaction, since the law altogether certainly perseveres. Cf. Ithur. Cas. 44. n. 15.

But if the doubt is positive, it is controverted. The first opinion, which S. Alph. 1. 1. n. 26-29, 1. 3. n. 700 par. ult., 1. 6. n. 477, quaest. reform., recent retract. q. 1 and 18, etc., altogether holds and thinks must be held, and several others hold, affirms. The reason is 1. because a certain obligation is not satisfied by a doubtful fulfillment; 2. because since in doubt the condition of the possessor is better, and the law certainly existing possesses against liberty, it prevails over liberty, and will always have it obligated to itself until the law has certainly been fulfilled. Cf. besides L. 1. 1. n. 20. 39. 99, 1. 3. n. 112. 290.

The second opinion, which we judge most probable both intrinsically and extrinsically, denies that such an obligation is present. The reason is the very fundamental reason of probabilism, which the holy Doctor cited above explains most learnedly and most expertly, namely: a doubtful law does not oblige. For law does not oblige in the abstract and universal, but in the concrete and particular case, L. 1. 1. n. 78. But although the existence of the law according to itself is certain, nevertheless the same law as obliging in such a concrete and particular case is uncertain, and is altogether prudently pronounced uncertain, if it is truly probable that satisfaction has already been made to it. Therefore either it must be said that the obligation of satisfying the law again in the aforesaid case is null, or it must be said that the aforesaid principle, a doubtful law does not oblige, is not universally true but suffers an exception; which would not be fittingly said. For what is true is always true, and for every particular contained in the universal. But from this reason it appears that the obligation really is not certain, which is assumed in the first reason of the opposite opinion, if it is probable that the law has already been satisfied. For against certainty there cannot be probability. As regards the second reason, as is clear from what has already been said, possession prevails in merely negative doubt; but for it certainly to prevail even in positive doubt, it must be certain and certainly legitimate possession. Now when in a particular case it is truly probably established that the law has been fulfilled, the possession of the law for that concrete and particular case becomes prudently doubtful; for if you really satisfied it, liberty in fact possesses. Besides, it is certainly not legitimate, since probably the just title of obligation is lacking; for you can probably believe that you have already satisfied, and therefore the just title, at least presumed, probably is not present. Moreover, several and very grave theologians hold this opinion. Indeed the same S. Alph. 1. 1. n. 99 has these things: "What in doubt whether you have fulfilled the law? In negative doubt you are bound to fulfill; otherwise in positive." Cf. also 1. 4. n. 150. And thus indeed S. Alph. himself thought, 1. 1. n. 76, edition of the year 1757; and S. D. called this opinion common, and himself deduced it from the very principles of probabilism. Finally S. D. 1. 6. n. 505 says, "it must be carefully noted that penitents are not to be compelled to repeat confessions unless it is morally certain that they were invalid, as La-Croix, etc., rightly say." - D'Annib. ed. 4. p. 1. n. 169.

You will resolve: Therefore that axiom, a doubtful law does not oblige, is to be understood of a law doubtful by positive doubt, or truly probably doubtful. Now law can be positively doubtful in many ways concerning its existence and concerning its cessation; concerning existence, whether it has been enacted, whether promulgated, whether the time of obligation has arrived, whether it extends to such a case; concerning cessation, whether it has been abrogated, whether its excuse or dispensation is present, whether it has already been fulfilled. And in all these cases we say that the aforesaid axiom has place, unless we wish to admit the truth of the general proposition and at the same time deny the truth of the proposition contained in the general.

Therefore law can be doubtful: 1. As regards its very existence and promulgation, concerning which S. Alph. says: "In order that law oblige, it must not only be promulgated, but also promulgated as certain. And this point must firmly be established here," 1. 1. n. 63 seq. and 97. And, to pass over others, these things are from the distinguished Doctor apud S. Alph. 1. 1. 66: "As long as there is a probable judgment that there is no law prohibiting the action, such a law is not sufficiently proposed to man; whence since the obligation of law is of itself burdensome, it does not urge until it is more certainly established." C. 31 de Off. iud. deleg.

2. As regards its understanding and obvious interpretation, and whether it is obscure or ambiguous. For since law must be sufficiently proposed in order to oblige, the legislator is not judged to wish to oblige beyond that which is clearly and determinately expressed in the law. R. I. 30. 57 in 6; L. 9 C. de Leg. et Const.; Suarez in 1. 2. tr. d. 12. s. 5. n. 7. Obscure: for example, whether regular prelates, since they too have their own sheep, ought to apply Mass for them on feast days. This question, twice proposed before the Holy See, has not yet been solved. Giraldi Expos. I. P. p. 2. s. 85. t. 3. Ambiguous: it is provided that a beneficed cleric not reciting the canonical hours after six months from obtaining the benefice does not make the fruits his own; nevertheless the fruits are to be understood not of the earlier and later time, but only of the later.

3. Whether it has an extensive or restrictive interpretation, concerning which S. Alph. 1. 3. n. 1036 says: "When it is doubted whether a law comprehends some case or subject, it is the same as if it is doubted whether a law exists for that case or subject, and therefore liberty possesses." Cf. also 1. 1. n. 27. 97; Lugo De Poenit. d. 16. n. 59, De Iust. et Iur. d. 23. n. 110.

4. Whether it has ceased, either immediately when it was enacted, because it was never received, or with the progress of time through desuetude; concerning which S. D. 1. 3. n. 112 says: "Nor is the first opinion an obstacle, which we followed 1. 1. n. 97, namely that in doubt whether a law has been received, the law rightly obliges; for here we are not involved in doubt, but in probable opinion.... For in doubt the presumption stands for the law, since a crime in not receiving a just law is not presumed. But when it is probable that the obligation of the law never began, or has been abolished, then the presumption for the law ceases and liberty possesses." The same S. D. has this, 1. 1. n. 107 par. An vero, 1. 4. n. 47. The same must consequently be said when it is probable that the end of the law has ceased adequately, L. 1. 1. n. 199, or that the law has been abrogated by custom, L. 1. 3. n. 290, or that in a particular case there is no need of dispensation, L. 1. 1. n. 192, 1. 3. n. 304. Certainly as soon as the obligation of the law is doubtful, its possession consequently becomes doubtful; and therefore in the case the argument taken from the Rule of possession has no force.

5. Whether the law is just or unjust; and here a threefold case can occur. The first is that the justice of the law is doubted because the legislator himself is doubted, whether he is a legitimate superior. Now in this case, if the doubt about the legitimacy of the superior is positive, about which we are treating, namely it is truly probable that he is not a legitimate superior, by that very fact the non-existence of the law becomes truly probable, and therefore it does not oblige. Cf. L. 1. 1. n. 98. 121. - But if the doubt is merely negative, the law must be obeyed, "whenever the superior is in peaceful possession of his power; for then his condition, as already possessing the right of commanding, is better." L. 1. 1. n. 98, 1. 4. n. 47. The other case is that the justice of the law is doubted because it is doubted whether the superior exceeds his power. In positive doubt, or true probability concerning excess of power, the same must be said as in the preceding case. For by the very fact that it is truly and manifestly probable that the superior exceeds his power, the non-existence of the law becomes truly probable, and therefore it does not oblige. Cf. L. 1. 3. n. 617. - But if the doubt is merely negative, presumption, speaking per se, always stands for the superior.

The third case is because the liceity of the thing commanded itself is doubted. In positive doubt or true probability, the law is not doubtful, and therefore obliges. For the superior then commands a thing probably licit, indeed certainly licit; for he commands that the subject embrace some probable opinion in practice, which is certainly licit. Therefore he commands licitly and by right. Therefore the subject is bound to obey. Lugo Resp. Mor. l. 3. d. 19; L. 90, l. 1. n. 93. 99. 124, l. 4. n. 47; Wirceburg. De Legib. c. 1. a. 1. "But the doctors commonly limit the aforesaid opinion, and say that the subject is not bound to obey, 1. if the thing is very difficult and troublesome.... They limit it 2. when by obeying the subject would expose himself or another to the danger of undergoing grave inconvenience in life, reputation, honor, or goods." L. 1. 4. n. 47, l. 3. n. 617, l. 1. n. 31. "The reason is that the subjection and obedience due to the superior does not take away your right and possession, or that of another, concerning the good of honor, reputation, body, or fortune. Therefore you are not bound to deprive yourself of this certain possession in a matter of such great moment; rather it seems consonant with equity that greater account be taken of your certain possession, and that this be preferred to the right or possession, in some way doubtful, of the superior." Elbel 173; Laymann c. 5. n. 12; Suarez tr. 3. d. 12. s. 5. Moreover, because then in the case of a very difficult or harmful thing it can deservedly be doubted whether the superior exceeds the limits of his power, and therefore the existence of the law becomes doubtful; or legitimate epikeia can then also have place, according to the various circumstances of the particular case. But if the doubt is merely negative, presumption, as has already been said, Cf. 146, always stands for the superior. Cf. Suarez De Relig. t. 4. l. 4. c. 12 seq.; Lugo Resp. Mor. l. 3. d. 19. Besides, as regards practice more, "the opinion of all theologians, both recent and ancient, is common: they teach that in obscure matters the superior must be obeyed where sin is not certain; and thus all have taught who have treated this matter. Thus also all the masters of mystical theology with S. Ignatius of Loyola in the Letter on the Virtue of Obedience." L. 1. 1. n. 100. 194; Lugo l. c. n. 3; Suarez tr. 3. d. 12. s. 5.

What is law? - Law is the rule of human actions in order to their moral honorableness or shamefulness. But if law is taken strictly, it is not the only rule. For human actions can also be regulated by counsel and by precept. Counsel is direction from a teacher, friend, or equal, or even from a superior, but by no means insofar as he is superior. - Precept is also usually called law, from its proper act, which is to command. But a precept, as distinguished from law, is a rule imposed by a superior, insofar as he is superior, not on the whole community, but on a particular individual, one or several. - Finally, law is a rule imposed on the whole community. Therefore counsel directs, but does not oblige; but law and precept direct and oblige. S. Th. 1. 2. q. 90. a. 3.

If the question concerns the name, law has been called this indiscriminately from reading or from binding. From reading, because in it what is the will of the superior is read, or known; from binding, because the physical will of the subject, although after the law it remains physically free as it was, nevertheless remains morally restricted, so that it cannot morally act honorably if it departs from what is prescribed by law. - If the question concerns the thing, it is defined variously by various authors. But commonly the definition of S. Th. 1. 2. q. 90. a. 4 is received: "An ordinance of reason for the common good, promulgated by him who has care of the community." Ordinance; for to order is to constitute something in its due place. But this is what law does: certainly law commands, prohibits, authorizes, permits, punishes. L. 7 de Legib. Doing these things, it constitutes human acts and actions in their due place with respect to the end to be obtained, which is the common good. Of reason: ordinance can be taken actively and passively. Law is active ordinance; but reason is what knows how to distinguish between place and place, between due and undue place. Of reason, namely inducing obligation; for law is a command. Whence it is both of reason because it is an ordinance, and an act of the will because it has the force of obliging. S. Th. 1. 2. q. 97. a. 3. For good; for if it were not such, it would no longer be an ordinance, but a disorder. - "Those who preside over the others preside for this one reason, that they may protect the utility of the state." Enc. Leo XIII, Immortale Dei, Nov. 1, 1885. - Common; in this law is distinguished from precept, which is imposed on individuals: for the common good does not regard this or that, these or those particular individuals only, but regards all; and therefore individual persons too, not insofar as they are individuals, but insofar as they are members of the community. But law is imposed on all, either absolutely all, for example all citizens, or all of some order, who specially apply themselves to the common good, for example all soldiers, who fight for the safety of the people, Can. 2. Dist. 4. This common good is the order, peace, and prosperity of society. By him who has care of the community; namely by the legitimate Prince of a perfect community, which is capable of political governance. In this, again, law is distinguished from precept and counsel. A precept is also given by one who has only private authority, as father, husband, master. Counsel is also given by one who otherwise does not enjoy authority. - Has care; that is, who presides over the community by his jurisdiction, or public authority. Hence law can be neither above nor beyond the jurisdiction of the Prince. - Promulgated; for law obliges rational beings precisely insofar as they are rational, namely insofar as they operate in a rational mode. Therefore in order that it oblige it must be known; but in order that it become known it must be brought forth externally by the legislator, and not in any way whatever, but solemnly or with some public solemnity: namely it must sufficiently become known to all that this is the mind and will of the legislator, and indeed on the part of the legislator himself. Sufficiently become known, that is, by certain knowledge; otherwise a rational being would be altogether unjustly despoiled, from the uncertain will of the legislator, of the natural and greatest good of liberty, which he certainly possesses. For there is no equality between certain liberty and uncertain obligation, that is, between the most certain and most just dominion and possession of the greatest good, and the uncertain and doubtful spoliation of that good. Hence S. Alph. says: "In order that law oblige, it must not only be promulgated, but also promulgated as certain." - Dist. 1. C. 3, Dist. 4. C. 3; S. Th. 1. 2. q. 90. q. 92, De Verit. q. 17. a. 3; L. 90 seq.; E. M.

He who sins against a precept, of itself sins only against obedience owed to his superior. He who sins against a law, besides this, sins also against that virtue to which the law is referred because of the public good in such matter, and against the public good itself, which is referred to legal justice. Cf. n. 835.

You will resolve: Private knowledge of a law without promulgation does not suffice for obligation. But promulgation, as soon as it has been sufficiently made, without knowledge of the law, suffices for obliging in the external forum, because knowledge of a law duly promulgated is rightly and deservedly presumed by the judge. Hence the Rule of Law: Ignorance of fact, not of law, excuses. R. 13 de R. I. in 6. But in the internal forum, besides exterior promulgation, knowledge of the law is always required; because no one can sin without cognition of the obligation. - C. Ad haec 1 de Post. Prael.; C. A. 2; S. Th. 2. 2. q. 77. a. 3 ad 4; Lugo Resp. Mor. Mor. l. 1. d. 21; Wirceburg. c. 1. a. 1, c. 4. a. 1.

How, and where, are laws to be promulgated; when do they begin to oblige? - Nothing is defined by natural right. Therefore it is in the choice of the legislator to promulgate it in the mode and place constituted by him. Civil laws are regularly promulgated by their insertion in the official gazette. C. I. preliminary disposition 1. - Canonical laws are promulgated at Rome, by placing their copy at the doors of the Vatican Basilica and of the other Roman Basilicas which are usually named; or by exhibiting it in the Secretariat of the individual Congregations, and then publishing it, or by transmitting them to all Bishops. The Acta Sanctae Sedis were declared authentic and official for publicly publishing the acts of the Holy See. Nor indeed is it necessary that they be published also in individual dioceses by the Ordinaries of the places. S. Poenit. Nov. 8, 1821; June 15, 1870. Thus matters were previously. But now from the Constitution Promulgandi of Pius X, Sept. 29, 1908, all Pontifical laws published in the official Commentary on the Acta Apostolicae Sedis are held as legitimately promulgated, unless in some particular case it has been otherwise established by the Supreme Pontiff. E. M.

Diocesan laws are promulgated either in Synod, or by their public reading in the cathedral church, or by affixing them in some public place, or in some official Commentary. Bened. XIV De Syn. l. 13. c. 4. n. 1. But after the law has been promulgated, when it begins to oblige depends, as regards civil laws, on the law of each nation. From C. I. preliminary disposition 1, laws begin to oblige on the fifteenth day from their publication, which consists in the insertion of the law in the official Collection of laws and decrees, and in the announcement of such insertion in the official commentary of the kingdom, Gazzetta officiale del regno. From C. H. art. 1, they oblige after twenty days from their publication in the official newspaper la Gaceta. Cf. C. G. art. 1 and decree Nov. 5-11, 1870. As regards Pontifical laws, some think they oblige after subjects, a suitable time having elapsed, could have known them, C. 1 de Conc. Praeb. in 6; others after two months, Auth. Ut factae novae Coll. 5; others immediately when they have been promulgated from C. 1 de Postul. Praelat., from the clauses of Bulls, from the cited responses of S. Poenit. But sometimes, in the law itself, the time of obligation is determined. As regards diocesan laws, after their promulgation has been made, no determinate time is required for their obligation. C. I. at the beginning, Dispos. etc. a. 1; Decree Nov. 5-11, 1870; C. A. 2. 3; C. H. 1; L. 96. 105. 106, H. A. tr. 2. n. 8; Suarez De Legib. l. 4. c. 15. n. 11; Struggl q. 1. n. 21. 22; Bened. XIV De Syn. l. 13. c. 4; Wirceburg. c. 4. a. 1; E. M.

Does Trent oblige in those places where it was not promulgated? - It is certain: 1. that it obliges everywhere as regards faith and morals, since there is one rule of these and it is necessary for all. Nor indeed are they new laws, but mere declarations of natural and divine right already sufficiently promulgated before. - 2. That it does not oblige as regards the Decree concerning clandestine marriages, sess. 22. C. 1 de R. But concerning this matter the new Decree Ne temere, edited in the present, must be attended to. - As regards other Decrees which regard discipline, the common and to-be-held opinion affirms. For the Bull which establishes the obligation of the Council of Trent regards the whole world; likewise the Bull which determines the day on which Trent begins to oblige was given for the whole world and legitimately promulgated at Rome. B. Pius IV Benedictus Deus 1564, and Sicut ad Sacrorum 1564. - Scav. 4. n. 83, Milan ed. 1874; E. M.

Does the force of law depend on acceptance by the community? - Of itself law in no way depends on acceptance by the people in order that it oblige. Therefore law, independently of that acceptance, is in itself altogether perfect as regards the obliging force which it has. Proof. The whole force of obliging is in the superior, not in the subject. Therefore as soon as the will of the superior is sufficiently known, someone is subject to the obligation. And this is confirmed by proposition 28 condemned by Alexander VII. Of themselves, therefore, Bishops who do not accept Pontifical laws sin; civil governments of Catholic nations also sin which prohibit the laws of the Church from being accepted. These laws, notwithstanding that prohibition, retain their force of obliging. L. 96. 97. 136-138.

Accidentally, sometimes a law not accepted does not oblige, by reason of the tacit or express consent of the superior, or by reason of privilege or tolerated custom. Proof 1. from the common consent of theologians. 2. Because the whole force of obliging is in the superior. Therefore, if the superior consents not to oblige, in whatever way he consents, the law will no longer oblige. Therefore, if the greater part of the people has not accepted the law, and the Prince knowingly and willingly does not urge it, although those who first did not accept the law sinned, nevertheless the others are without fault because of the presumed consent of the superior. Not accepting: namely contrarily by breaking the law, with a will not to observe it. For if the greater part has not accepted the law merely negatively, that is, because of a reasonable cause suspends its obligation for a time, until that cause is manifested to the superior, meanwhile prepared to obey if the superior urges the obligation, then not even the former sin. From a certain benign interpretation, the obligation of the law can be held as suspended until the matter is settled. Knowingly and willingly: for if the Prince does not know that it is not received and not brought into use, or cannot contradict at the beginning, the obligation of the law endures until the time required for prescription elapses, and a legitimate custom is formed. Nevertheless, "if you are prepared to receive a promulgated law and, given the occasion, even observe it, but most others from the community do not receive it and do not seem likely to receive it, then at least you will be excused from it by discretion," L. 137, or rather because of the presumed will of the superior, who does not wish to oblige you alone. - Suarez De Legib. l. 3. c. 19. n. 5, l. 4. c. 16. n. 8; Vazquez on 1. 2. d. 156. c. 5. n. 40; L. 139; Struggl q. 1. n. 27-30; Laymann cap. 3. n. 3; Bened. XIV De Syn. l. 9. c. 8; Wirceburg. c. 4. a. 2; E. M.

What are the properties of law? - They are the following:

1. Possibility, namely even moral possibility: that is, that it not bring grave or most grave inconvenience and difficulty, at least commonly speaking, and in the case of positive law. The reason is that since law is an ordinance of reason, it too must be ordered. Now it is imprudent and rash to pour out life and other goods which can be preserved thereafter for better use, excluding the case of the common good, contempt of God, or violation of a negative law. Moreover, since law again is an ordinance of reason, and therefore ought itself also to be ordered, it must be accommodated to the common condition of men, so that it can morally be observed by the whole community or at least the greater part of it; otherwise it would be useless, indeed harmful, to make the law. To exercise all acts of virtues, even heroic ones, certainly is not for all. And this is confirmed from the very practice of each Law, ecclesiastical and civil, and from the consent of all theologians, asserting that divine positive and human law generally do not oblige with proportionate grave harm which is accidentally joined to the observance of the law. - S. Th. 2. 2. q. 79. a. 3 ad 2, q. 96. a. 2; Sanchez on Decal. l. 1. c. 18. n. 2. Appositely S. Th. 1. 2. q. 96. a. 2: "Human law is laid upon a multitude of men, in which the greater part is of men not perfect in virtue, and therefore by human law not all vices are prohibited, but only the more grave ones, from which it is possible for the greater part of the multitude to abstain, and especially those which are to the harm of others, without whose prohibition human society cannot be preserved." - Wirceburg. c. 4. a. 5.

Hence heroic acts generally cannot be commanded by law, because they are judged morally to exceed human powers, and therefore a law of this kind would lack that quality by which it could be called possible. Nevertheless sometimes, when the common good requires it, they can be commanded, because in any perfect society there is the right and power for its own preservation. Thus watch-soldiers cannot desert their post, even when danger of life threatens, if the republic would suffer damage from it. Thus also law obliges with danger of life, if souls would perish unless the pastor goes to the sick in time of plague. When the common good requires it, namely if that precept is necessary for conserving a good or averting a common evil. - This, however, must not be understood of those laws which are made from the given hypothesis of some peculiar state into which the subject has voluntarily cast himself, which they therefore call hypothetical, adventitious, or elective. Thus the Church commands perpetual enclosure to nuns. Thus also most grave punishments can be imposed on men guilty of a most grave crime. For it was free to them to withdraw themselves from those things by acting otherwise. L. 175; Struggl q. 2. n. 8; Suarez l. 3. c. 30. In the case of positive law: for negative laws, namely those which forbid evil by natural right, must be observed even with the danger of life. For evil is never to be done. But except laws commanding a thing which by its nature cannot be performed without grave inconvenience, such as the law of Confession, for which the help of grace is at hand, and from which impossibility also excuses. But positive laws, the more they look to the good of religion and of the republic, the more they oblige with greater inconvenience. - E. M.

2. Honorableness; for law is an ordinance of reason. Therefore law cannot command dishonorable acts; it can however command acts indifferent per se, which can be ordered to the common good, and which consequently become positively honorable. A law will be honorable if it agrees both with religion and reason. - Struggl q. 2. n. 9; Elbel 252-254; S. Th. 1. 2. q. 95. a. 2. 3, q. 96. a. 2.

3. Utility; for law is an ordinance of reason for the common good by him who has care of the community. Hence any law cannot command any honorable acts whatsoever, but all and only those acts whose placement or omission can contribute to the common good of society, namely so that either immediately and directly, or at least mediately, indirectly, and ultimately, it yields to the common good. - Therefore civil law certainly cannot command merely internal acts. Nor can ecclesiastical law, more probably according to many, do this, because the legislative power of the Church in the external forum pertains only to the external governance of the faithful. C. 34 de Simon., S. Alph., S. Th., Suarez, Bened. XIV, etc., against others, who also probably affirm it, because the Church received unlimited power from Christ. - But human law can command mixed acts, or acts partly internal, partly external, which together constitute one moral act; and external acts even if hidden, for both the former and the latter acts can be directed to the common good. "And thus externalized heresy is prohibited under excommunication, although hidden; thus under irregularity hidden homicide." L. 100. S. Th. 1. 2. q. 91. a. 1, q. 96. a. 1. 3, q. 100. a. 9, 2. 2. q. 104. a. 5; Suarez l. 4. c. 12. 13; Ithur. Cas. 41. n. 23; Bened. XIV De Syn. l. 9. c. 4. n. 4; Wirceburg. c. 4. a. 3.

4. Justice; for again law is an ordinance of reason, and "in human matters something is said to be just from the fact that it is right according to the rule of reason." S. Th. 1. 2. q. 95. a. 2. "But laws are said to be just both from the end, namely when they are ordered to the common good; and from the author, namely when the law enacted does not exceed the power of the one enacting; and from the form, namely when burdens are imposed on subjects according to equality of proportion in order to the common good. For since one man is part of the multitude, every man, this very thing which he is and which he has, belongs to the multitude, just as every part, that which it is, belongs to the whole; whence nature also inflicts some detriment on the part, so that it may save the whole. And according to this, laws of this kind, proportionately imposing burdens, are just and oblige in the forum of conscience, and are legal laws. But laws are unjust in two ways: in one way by contrariety to human good, contrary to the aforesaid things; either from the end, as when someone presiding imposes burdensome laws on subjects, not pertaining to the common utility, but rather to his own utility or glory; or also from the author, as when someone makes a law beyond the power committed to him; or also from the form, for example when burdens are distributed unequally to the multitude, even if they are ordered to the common good. And such things are rather acts of violence than laws.... Hence such laws do not oblige in the forum of conscience, except for avoiding scandal or disturbance, on account of which also man ought to yield his right.... In another way laws can be unjust by contrariety to divine good, as the laws of tyrants inducing to idolatry, or to any other thing which is against divine good; and such laws it is in no way licit to observe." S. Th. 1. 2. q. 96. a. 4. A law will be just if it is accommodated to the powers of the subjects, although hard for individuals. L. 12 Qui et a quib. manum.; Suarez De Leg. l. 3. c. 21.

5. Stability; because custom, which cannot be had without stability of law, has very great force for the observance of laws; and because the common good is not so easily changed from day to day. For this reason law is constituted without a defined time, so that once enacted, unless it is abrogated, or becomes harmful or useless, it endures as long as the community stands to which it is imposed, or as long as the circumstances persevere for which it was enacted. - What is indeed constituted generally, but not in perpetuity, has the name of Statute, Edict, Decree. Nevertheless those things which are established by supreme civil power, although they are only certain simple ordinances, are presently called laws. Likewise those things which are constituted by Synods and commanded by Sacred Congregations are called Synodal Statutes and Decrees of Sacred Congregations. - S. Th. 1. 2. q. 96. a. 1, q. 97. a. 1. 2.

Hence law can cease only in three ways: 1. Through abrogation or derogation, according as it is abolished altogether or only in part. L. 102 de R. I. For just as a superior can make a law, so he can take away or restrict the same. And here it must be noted that by a general law a particular law of some place is never of itself abrogated, unless this is expressly or equivalently provided in it; nor is a particular custom abrogated, which the Prince is presumed to be ignorant of, since it is a matter of fact and consists in fact: namely unless the clause is added, notwithstanding any custom whatsoever, or, if it exceeds the memory of men, notwithstanding any custom whatsoever, even centenary and immemorial. On the contrary, because universal customs are presumed to be known to the Prince, they must be said to be abrogated by that very fact that the Prince enacts a contrary law, even if a general derogatory clause is lacking. And the same must be said of a universal law. But Bishops by their laws abrogate any particular custom whatever, because they are presumed to have full knowledge of the customs of their dioceses. C. Licet 1 de Const. in 6; C. I. beginning, Dispos. etc. a. 5; C. H. 5; L. 109. 199. Cf. l. 6. n. 680.

2. Through cessation of the adequate motive cause, or the total end, on account of which it was enacted, with respect to the whole community; for when the cause of the law ceases, the legislator cannot reasonably urge it. And thus a precept also ceases if its end wholly ceases. S. Th. 1. 2. q. 103. a. 4 ad 3. - 3. Through desuetude, or through contrary custom clothed with the due conditions; for then at least the legal consent of the superior accedes. - Wirceburg. De Legib. c. 5. a. 5. 6.

This stability is a property exclusively proper to law, if law is compared with precept. For a precept ceases by the death of the one commanding or by cessation from office; but law is not extinguished together with the legislator. For when the physical person from whom the law emanated ceases, neither does the office of making laws cease, nor does the common good cease; and for that reason the law does not cease, since that common good is the universal and constant good of the whole society. But the good which a precept regards is a private or individual good, and by its nature variable; and with the physical person of the superior, the very office of commanding ceases of itself, as may be seen in a father, master, teacher, etc. - Meanwhile, however, even a precept or mandate sometimes does not immediately expire by the death of the one mandating: namely if the mandate is for pious causes, or in favor of a matrimonial dowry or of some student; if the mandatary is expressly ordered to execute something even after the death of the one mandating; if the matter is no longer intact, namely in judgments, in donations and promulgations to be made in the name of another; if the matter is even intact, but only the execution of some grace has been mandated in favor of another, and the granting itself of the grace has not been left to the choice of the mandatary; if the mandate proceeds from one having public power, for the cause of public utility; if it has been thus provided in the law itself, as sometimes happens in religious Institutes, and then the precept obtains perpetuity by force of the law itself. - La-Croix 566. 876; Struggl q. 1. n. 5; L. 140.

6. A real law, which is concerned with immovable goods, adheres to the territory in which the immovables are situated. A real law, which constitutes the form and order of acts, also adheres to the place. The place governs the act, unless the act is altogether private. A personal law, which decrees those things that pertain to the state of persons, follows the person everywhere. A moral law, commanding or prohibiting a human action, immediately affects the territory, and is called a local law, to distinguish it from real and personal law; while a precept immediately affects the person. C. 2 de Const. in 6; C. I. preliminary disposition a. 6 seq. But in reality every law is properly local. For law regards the common good, namely the good of the community, which exists only in a determinate territory; whence it obliges a person only as existing in the territory, at least by fiction of law. Law obliges only subjects, and they are not subjects except in the proper territory of jurisdiction. But a precept regards the private good of the person; whence wherever he is, the precept urges. And this is certain and common if the question concerns a commanding superior directly having authority over the person, as a husband, father, master, regular prelate. But if the question concerns a superior directly having jurisdiction in the community and in the territory, the more common opinion affirms, while the less common opinion and one probable to S. Alphonsus denies. Nevertheless the more common opinion, according to prevailing practice, must be held; and consequently the precept endures until it is revoked, if it was made with legitimate cause and legitimate form. - L. 1. 2. n. 23; Bened. XIV De Syn. l. 13. c. 4. n. 9; Wirceburg. De Legib. c. 1. a. 1.

Does a law cease when the final cause ceases only in a particular case? - R. Affirmatively, if it ceases contrarily, namely when the matter of the law would be rendered harmful in that case, or very difficult. For positive law, especially human law, does not oblige with grave and proportionate inconvenience. It is controverted if it ceases only privatively, namely if the law would then be rendered useless. The first opinion, which several grave theologians hold, affirms, because the law is then rendered useless. But the second opinion, which pleases S. Alph. more, denies, because although the end of the law ceases in the particular, nevertheless it does not cease in common. For commonly speaking there is almost always the danger of hallucination, by which someone can easily be deceived in his own case.

Hence then the law becomes founded in a presumption of law, which indeed always obliges. Nevertheless S. D. adds that if a case occurred in which "someone were altogether certain and secure that every danger of hallucination is absent," he would not dare to disapprove the former opinion, L. 199. 1. 6. n. 613; indeed S. D. calls this opinion probable, l. 3. n. 846. - But it must be noted that the end of a law can be multiple, as in the reading of prohibited books; and then, when one ceases, the law does not therefore cease. L. H. A. tr. 2. n. 69; S. Th. 1. 2. q. 103. a. 4 ad 3, 2. 2. q. 154. a. 2. 3; Struggl q. 4. n. 25-27.

You will resolve: Betrothed persons are not exempted from the proclamation of banns, even if they certainly know that no impediment underlies the marriage. For the law is founded on the danger of universal nullity of marriage from omitted proclamations. Hence also someone cannot read prohibited books if he fears no danger to himself from them. And although that danger also truly ceases in a particular case, nevertheless the end of the prohibition does not wholly cease, since that end is not only that the danger of perversion be avoided, but also that occasion not be given to depraved writers to commit harmful things to print. Likewise he is still bound by the law of abstinence and fast who abhors meats and delights in fish, and he who can sustain for his stomach only one eating in the day. - L. 199.

What is interpretation of law, and how manyfold is it? - Law is not always clear. Hence for rightly understanding it interpretation is needed, which is defined: the genuine explanation of the law according to the mind of the legislator. Mind, not hidden, but expressed by the words of the law. Mind, because law is what the legislator willed. S. Th. 2. 2. q. 120. a. 1 ad 3.

Interpretation is: 1. Authentic, doctrinal, and usual, according as it is made by the superior himself, or by learned men, or from custom. In order that interpretation be truly authentic and not doctrinal, it is necessary that the Superior, or another who has this power from the Superior, declare the law insofar as he is Superior, that is, using the power of jurisdiction. For if as a private person he declares his mind, the interpretation will not be authentic, but doctrinal. Custom is equivalent to authentic interpretation if it is legitimately prescribed; otherwise it is merely doctrinal. For custom is "the best interpreter of laws." C. 8 de Consuet. Whence "those things are by no means to be changed which have always had a certain interpretation." L. 23 de Legib.

2. Strict or broad, according as it is made strictly according to the natural property of the words, or broadly according to the more benign sense. Thus these words: sons, clerics, religious, etc., according to their natural signification can be taken strictly of natural and legitimate sons, of those initiated by first tonsure, of regulars solemnly professed, or broadly of all sons, of all ecclesiastical persons, of all religious, even novices.

3. Comprehensive or merely declarative, or extensive or restrictive, according as by that interpretation either nothing new is introduced, or something is added by it, when the words are taken either as they sound or beyond their natural sense. - C. Inter alia 31 de Sent. exc.; Sixtus V, C. Immensa, Jan. 22, 1588; S. Th. 1. 2. q. 86. a. 6; Ithur. Cas. 53. n. 2 seq.; L. 1. 3. n. 760. 265; C. I. beginning, Dispos. etc. a. 3.

What are the rules of interpretation? - The words of law are to be taken according to their proper and usual acceptance, unless something absurd or unjust follows from this, or the law becomes wholly useless. For words demonstrate the will of the one speaking. And otherwise nothing would be certain in laws. Hence the common saying: Where the law does not distinguish, neither ought we distinguish. In doubt about the true sense, attention must be given to the mind of the legislator, or to the end and reason of the law; to the thing or matter about which the question is concerned; and to the circumstances either antecedent or consequent. R. 88 de R. I. in 6. - A penal and odious law in doubt is to be interpreted strictly; but a favorable law undergoes a broad interpretation. And generally "laws are to be interpreted more benignly, so that their will may be preserved." L. 18 de Legib. L. 12. 18. 19. 23. 24. 25. 26. 37 de Legib., L. 155 de R. I.; R. I. 15. 30 in 1; L. 200; Struggl q. 4. n. 1 seq.; Suarez De Legib. l. 6. c. 1; Wirceburg. De Legib. c. 5. a. 1.

Does authentic interpretation need promulgation in order to oblige? - R. Negatively, if that interpretation is a declaration of a sense clearly contained in the law, since such a declaration is not a new law; for it establishes nothing new, but declares what has been established, and has force backward. - R. Affirmatively, if the declaration is of a sense obscurely contained in the law, because it is then had as a new law; or if it restricts or extends the law, since then it is truly a new law. - L. 100. 200, 1. 3. n. 1027; Suarez De Legib. l. 6. c. 1. n. 3.

Must a law be extended from case to case because of identity of reason? - "Penal laws are not to be extended from case to case." L. 1. 6. n. 689. For hatreds are to be restricted. R. I. 49 in 6. - Likewise invalidating laws or laws granting some right cannot be extended from case to case; for then the act lacks value, or has force only from the positive will of the legislator. C. I. beginning, Dispos. etc. a. 4. - It must likewise be denied as regards other laws, even if the same reason runs; a fortiori if there is only a similar reason. For not the reason of the law, but the will of the legislator, duly intimated to the subjects, has the force of law and obliges. For the legislator can well dispose concerning one thing and not concerning another. Hence the common axiom: The reason of the law is not the law; and the end of the precept does not fall under the precept. L. 20. 21 de Legib.; S. Th. 1. 2. q. 100. a. 9 ad 2; L. 1. 3. n. 273. But "to act contrary to the end of the law is a certain disorder, which does not seem to be excused from all fault." L. 1. 3. n. 1030. - But if it is not licit of itself to extend a law from case to case, a fortiori it is not licit to extend a privilege from persons to other persons, from things to other things. C. 27 de Praeb. in 6; Reg. 28 de R. I. in 6; L. 14. 15. 16 de Legib.

Except nevertheless whenever otherwise something manifestly absurd or inequitable would follow, and the legislator could manifestly be accused of injustice, imprudence, ignorance. Thus by the Constitution Decori of S. Pius V, nuns are prohibited from going out of the monastery, except because of a great fire, or epidemic, or the sickness of leprosy. Therefore they will also be able to go out for another similar cause, for example flooding of the monastery, collapse, attack of robbers.

But this is chiefly had in the following: 1. In correlatives, for example, between husband and wife, betrothed man and betrothed woman; whence if the husband because of the adultery of the wife is admitted to divorce from bed, the wife also enjoys that right because of the adultery of the husband; if the betrothed woman is freed from betrothal because of the long absence of the betrothed man, C. 5 de Spons., similarly he is freed because of the absence of the betrothed woman. For then the legislator, expressly willing one thing, is judged to have implicitly willed the other also. 2. In things equated by law, such as presentation, postulation, election to a benefice; eggs and milk foods by reason of abstinence. What the law disposes in these matters concerning one, it is judged to dispose the same concerning another. And thus, if the more worthy is to be elected, the more worthy is also to be presented; if eggs are permitted, milk foods also are permitted. R. I. 53 in 6. 3. In connected things, of which one cannot stand without the other. Therefore he to whom a case is committed can also compel the parties to appear. C. 5 de Off. Deleg. 4. In things contained: for in the whole the part is contained; thus he who can make a testament can also make legacies; those to whom marriage is prohibited are also prohibited betrothal. L. 16 de Sponsal.

And these things have force even if the question concerns a penal law. Nor then does the rule have force: Hatreds are to be restricted, favors broadened. For that proceeds only when the disposition of the law is extended from interpretation of congruity, not when it must be extended from interpretation of necessity, which ought not so much be called extension as mere comprehension. And certainly extension of law is of two kinds: one necessary, the other congruential. The former is altogether required for justice or rectitude; but the latter not so, but is only voluntary, because although the law can justly comprehend many other things, nevertheless a lesser comprehension suffices for the justice of the law and the property of the words, with the reason of the law also being preserved. Now the general rule about not broadening penal laws must be understood of voluntary interpretation, that is, without which the prudent disposition and justice of the law can still be preserved; not of the necessary extension of law, which is required so that justice or equity may be preserved. And thus, a heretic is irregular. Therefore also an apostate. L. 12 de Legib. - L. 200, 1. 3. n. 293. 1027; Ithur. Cas. 53.

As it is necessary to extend a law when its reason is manifest, L. 12 de Legib., so also it is necessary to restrict it when similarly its reason is manifest; because the thing itself about which the question is concerned requires restriction; because otherwise something unjust or absurd would follow; because the case is altogether rare and foreign to the mind of the legislator; because otherwise the law would become too hard and severe. L. 18. 25 de Legib.

Do the Declarations, Decisions, and Decrees of the Sacred Congregations have the force of law? - There is no doubt that they oblige in the particular cases for which they are made. C. Sixtus V Immensa. There is no doubt that they have the force of law if the strength of Apostolic firmness is added to them. Cf. Bened. XIV, C. Sacramentum Poenitentiae, or if they have been solemnly published by mandate of the Apostolic See, or if in the Church they have been universally and by the use of several years disseminated. L. 106. But all the Decrees of the Sacred Congregations have the same authority if they have been duly promulgated. Pius X, C. Sapienti consilio, July 1, 1908.

Besides the aforesaid cases, concerning particular Decrees, about which alone there can be a question, there is a threefold probable opinion. The first opinion asserts that they have the force of obliging all, because they contain an authentic interpretation of laws. - The second opinion says that they do not oblige universally. The reason is that, in order that a law oblige all, solemn promulgation of a universal law is altogether required, and simple publication of a particular Response does not suffice. - The third opinion affirms this when the Declarations are comprehensive, namely when they do not depart from the proper and usage-received signification of the words. For then no promulgation is needed, since a new law is not made, but a law already made and promulgated is only explained. But it denies this when the Declarations are extensive, namely when they depart from the proper and commonly accepted signification of the words. For then they are new laws, which require legislative power and promulgation. But even if they contain an interpretation of doubtful and obscure common law, and not a mere declaration of clear law, they cannot have the value of universal law without legitimate promulgation, or before they are brought into common practice. Cf. 176. Schmalz. Dissert. prooem. n. 373 seq.; Pichler. Proleg. n. 46; Reiffenst. Prooem. n. 130 seq.; L. 1. 1. n. 106, 1. 3. n. 760. 765. 1027, 1. 6. n. 401. 403. 556. 593. 699, H. A. tr. 15. n. 87; Bened. XIV De Syn. l. 6. c. 6. n. 4, Index of the Work v. Congregation of the Council, its prudent inconstancy in its decisions and in rendering judgments; Scav. 1. 1. n. 339. 240, Milan ed. 1874; A. S. S. v. 3. p. 563 seq.; E. M.

178 bis. Note: The most recent ordering of the Roman Curia was made by the Constitution Sapienti consilio of Pius X, July 1, 1908. In it Congregations, Tribunals, and Offices are distinguished. There are eleven Sacred Congregations, and they are the following; to each of them its own matter is exclusively assigned, the cumulation of rights in all Offices of the Holy See being abrogated.

1. Congregation of the Holy Office. It guards the doctrine of faith and morals. Therefore to it alone remains judgment concerning heresy and other crimes which induce suspicion of heresy. - To it also was devolved the whole matter concerning Indulgences, in which matter the Constitution In ipsis of Clement IX, July 6, 1669, fully remains in force. But the faculty remains intact to the Holy Office of knowing those things which concern the Pauline privilege and impediments of disparity of cult and mixed religion, besides those things which touch dogmatic doctrine concerning marriage, as also concerning the other Sacraments.

2. Consistorial Congregation. It prepares the matters to be done in Consistories. In places which are not Mission places, it constitutes new dioceses and chapters; and treats those things which pertain to the division and general governance of dioceses, and to the election of Bishops, Apostolic Administrators, and Coadjutor and Auxiliary Bishops. In naming Bishops one must adhere to the Constitution Romanis Pontificibus, Dec. 17, 1903. To it also pertain those things which regard the governance, discipline, studies, and temporal administration of seminaries. But it resolves doubts concerning the competence of the Sacred Congregations. - A section was added concerning the spiritual care of emigrants, and concerning priests themselves who emigrate. Pius X, M. P. Cum omnes, Aug. 15, 1912.

3. Congregation on the discipline of the Sacraments. To it pertains the whole legislation concerning the discipline of the seven Sacraments. Therefore to it pertain matrimonial dispensations in the external forum, dispensations of those to be ordained, and dispensations concerning the place, time, and conditions of receiving and reserving the Eucharist, and of celebrating Mass, etc. To it also belong questions concerning the validity of marriage or sacred ordination, and others pertaining to the discipline of the sacraments. Dispensations from impediments of marriage, in the form of a Brief, are granted by this Sacred Congregation, provided they are of an honorable nature, and if the dispensations themselves are subject to greater taxes. Other dispensations are given in the form of a rescript. Cf. Ord. servand. in Rom. Cur., special norms c. n. 13-16.

4. Congregation of the Council. To it is committed the whole discipline of the secular clergy and Christian people; and therefore to it pertains the observance of the precepts of the Church, except the Eucharistic fast, which belongs to the S. C. on the Sacraments; to it pertain those things which regard Pastors and Canons, those which are referred to pious Confraternities, pious works, pious legacies, Mass stipends, benefices, offices, ecclesiastical goods; to it also pertains the faculty of exempting from conditions required for obtaining benefices, whenever they are to be conferred by the Ordinary; likewise those things pertain which regard ecclesiastical immunity and the celebration of Councils. - To this Congregation is joined the special Lauretana Congregation. The faculty of interpreting the Decrees of the Council of Trent no longer pertains exclusively to the S. C. C., but belongs to the individual Congregations according to their proper competence. S. C. Cons. Feb. 11, 1911.

5. Congregation of Religious. To this Congregation pertain the affairs of all Religious, of those who live a common life without vows, and of secular third orders, whether among themselves, or with regard to them in relation to others; also dispensations from common law with religious pertain to it.

6. Congregation of Propaganda Fide. Its jurisdiction is circumscribed by regions where the sacred hierarchy has not yet been at least perfectly constituted, and the state of mission perseveres. Nevertheless those things which regard faith, marriage, sacred rites, and religious as such are to be referred to the proper Congregations. It has united to itself the Congregation for the affairs of the oriental rite, which preserves its functions entire. - To it is joined the Committee for the union of dissident Churches. Besides, the administration of all goods has been committed to it, even of the Reverend Chamber of Spoils. Indults which until now it was accustomed to grant to others, it now grants only to its own subjects. Ord. servand. in R. C., special norms c. 7. art. 6.

7. Congregation of the Index. To it pertains everything which regards harmful books and writings which are to the ruin of souls. - The Cardinals, Consultors, and ministers of this Congregation and of the Holy Office can communicate with one another all those things, and only those things, which pertain to the prohibition of books, and all are bound in this matter by the same secrecy.

8. Congregation of Sacred Rites. To it pertain all those things which proximately regard the sacred rites and ceremonies of the Latin Church, and also the insignia and privileges of honor to be granted, both personal and real, which are referred to sacred rites and ceremonies. To it also pertain those things which regard the beatification and canonization of Saints and Sacred Relics, concerning which one must adhere to the Constitution In ipsis of Clement IX, July 6, 1669. - To this Congregation are joined the liturgical, historical-liturgical, and Sacred Chant Committees.

9. Ceremonial Congregation. To it pertains the moderation of ceremonies in the Pontifical Chapel and Court, and of the sacred functions of Cardinals, and also the precedence of Cardinals and Legates before the Holy See.

10. Congregation of Extraordinary Ecclesiastical Affairs. It treats those affairs which are referred to it through the Secretariat of State, especially those which are referred to Civil Laws and Concordats.

11. Congregation of Studies. To it pertains the moderation of studies and academic degrees of Catholic Universities, even of those which pertain to Religious, and the faculty itself of granting academic degrees.

There are three Tribunals, namely:

1. Sacred Penitentiary. Its jurisdiction is restricted only to those things which regard the internal forum, even non-sacramental, and it settles questions of conscience. It especially retains the norms of the Constitution In Apostolicae of Benedict XIV, Apr. 13, 1744, with the changes introduced and approved by legitimate use being preserved, and also the prescriptions through the Constitution Sapienti consilio and through the law Ord. serv. in R. C. which regard this tribunal. All things are expedited secretly and gratis in this tribunal. - Ord. serv. in R. C., special norms c. 8. art. 1.

2. Sacred Roman Rota. To it are devolved all contentious non-major causes which are conducted in the Roman Curia, both civil and criminal, the judicial process being preserved. But causes are treated in disciplinary manner by the Congregations themselves to which they belong by reason of the matter. The proper Law must be observed by the S. R. Rota, which is joined to the praised Constitution Sapienti Consilio. In it is established the constitution of the Tribunal, competence, and mode of judging. Besides, in judgments the Rules approved by the Supreme Pontiff Pius X on Aug. 4, 1910, and promulgated on Oct. 25 of the same year, are to be observed. Finally those things also must be observed which agree with it in the Constitution Sapienti consilio and in Ord. serv. in R. C. Cap. 2. Canon 14 of the aforesaid proper law declares the competence of the Sacred Roman Rota thus: "§ 1. The Sacred Rota judges in first instance causes which the Roman Pontiff, either motu proprio or at the instance of the parties, has called to his own tribunal and committed to the Sacred Rota; and these, if need be, and unless otherwise provided in the rescript of commission, it judges also in second and third instance, by means of subsequent turns according to the prescriptions of can. 12. § 2. It judges in second instance causes which have been judged in the first grade by the tribunal of the Most Eminent Vicar of the City and by other tribunals of Ordinaries, and are referred to the Holy See by legitimate appeal. And likewise it judges these, if need be, even in third according to the mode prescribed in can. 12. § 3. Finally it judges in the last instance causes already known by Ordinaries and by any other tribunals in the second or further grade, which have not passed into a res judicata, and are referred to the Holy See through legitimate appeal. § 4. It also sees concerning recourses for restitution in full from any sentences which have passed into a res judicata and cannot find remedy before the judge of second instance according to the title on Restitution in full; provided nevertheless that the matter does not concern a res judicata from a sentence of the Sacred Roman Rota; and in these it judges both concerning form and concerning merit."

3. Apostolic Signatura. Newly instituted, it is bound to observe the proper Law joined to the Constitution Sapienti consilio itself, and also those things which agree with it in the Constitution Sapienti consilio and in Ord. serv. in R. C. In that Law the question concerns the constitution and competence of the Supreme Tribunal of the Apostolic Signatura, and the mode of judging. This supreme tribunal knows concerning an exception of suspicion against some auditor of the Rota, concerning violation of secrecy and concerning damages inflicted by Auditors, concerning a complaint of nullity against a rotal sentence, concerning restitution in full against a rotal sentence which has passed into a res judicata.

Five Offices are listed, namely:

1. Apostolic Chancery. Its proper function is to expedite Apostolic Letters under lead concerning the provision of consistorial benefices, concerning the institution of new dioceses and chapters, and for other greater affairs of the Church.

2. Apostolic Datary. Its proper ministry is concerned with all those things which regard non-consistorial benefices to be conferred, reserved to the Apostolic See. Therefore it also draws up and expedites Apostolic Letters for their conferral, exempts in conferring benefices from required conditions, and cares for burdens and pensions imposed by the Supreme Pontiff in conferring the aforesaid benefices. But benefices are conferred by it through a Bull, or through a decree of simple signature, that is, no Bulls having been expedited. Ord. serv. in C. R., special norms c. 9. art. 2.

3. Apostolic Chamber. Its care is also the administration of the temporal goods and rights of the Holy See, especially at the time when this is held vacant, according to the norms of the Constitution Vacante Sede Apostolica, Dec. 25, 1904.

4. Secretariat of State. To it pertain extraordinary ecclesiastical affairs; insignia of honor to be granted, not reserved to the Prelate set over the Pontifical Household; and the expedition of Apostolic Briefs which are committed to it by the various Congregations.

5. Secretariat of Briefs to Princes, and of Latin letters. This double office has its own function of writing the acts of the Supreme Pontiff in Latin.

The beginning of the year henceforth is to be taken not from the day of the Incarnation of the Lord, that is, from March 25, but from the Kalends of January, in all Apostolic letters to be expedited either by the Chancery or by the Datary. Apostolic Letters, by reason of the gravity of the affairs and of varied form, are distinguished into Bulls, Briefs, and Pontifical Rescripts. - Formerly Bulls were written on rather dark and thicker parchment, and in Lombardic or Teutonic characters; but now from the Motu Proprio of Leo XIII, Dec. 29, 1878, they are written on parchment paper and in Latin characters. Likewise the seal or leaden medal, from which they are called Bulls, with attached cords, is preserved only in Apostolic Letters of conferrals, erections, and dismemberments of major benefices, and also in other solemn acts of the Holy See. In others, the impression of a red-colored seal bears the images of the Apostles Peter and Paul, with the inscription of the name of the reigning Supreme Pontiff drawn around it. A Bull is inscribed: Pius, Bishop, Servant of the Servants of God, and the date is written according to the Roman Calendar. Consistorial nominations, the constitution of new dioceses and chapters, are done through a Bull. Briefs are expedited for affairs of lesser moment; they are written on white and thin parchment, or ordinary paper, and in Latin characters. They bear the seal of red wax with the image of S. Peter engaged in fishing; and therefore they are said to be expedited under the Ring of the Fisherman. Briefs are inscribed Pius Pope X. Their date is designated according to the common calendar. - Finally Rescripts are Responses of Pontiffs, which are often written on the back of the petitions themselves of the supplicants. The Congregation which is called the Reverend Fabric of S. Peter has care only of the property of the Basilica of the Prince of the Apostles according to the Constitution Quanta curarum of Benedict XIV, Nov. 15, 1751.

The Committees for advancing studies either of Sacred Scripture or of history; for administering Peter's Pence; for preserving the Faith in the City, remain in the state in which they were before. The Congregation of the Apostolic Visitation of the City having been removed, those things which pertained to it are referred to the committee of Cardinals to be constituted at the Vicariate of the City. In all Congregations, Tribunals, and Offices, things which are grave and extraordinary must first be signified to the Supreme Pontiff. Other things need pontifical approval, unless special faculties have been granted to their Moderators, and excepting the proper sentences of the Sacred Rota and Apostolic Signatura. - But the affairs to be treated in them are to be treated according to the proper laws and norms joined to the same Constitution Sapienti Consilio. - Organization, provision of officials, internal discipline, manner of acting before the Sacred Congregations, and taxes to be paid are established in the Order to be Observed, or General Rule, which is had for the Sacred Congregations, Tribunals, and Offices. - All officials are bound to swear an oath concerning faithfully fulfilling the office, not receiving gifts even spontaneously offered, and preserving secrecy, according to the formula established there. Provision of minor officials is made through competition in titles and knowledge. - Anyone can treat his own affairs before the Sacred Congregations by himself, through an advocate, through a procurator, through an agent either public or private, Ordo servandus p. 1. cap. 9. - Finally in the Sacred Congregations, Tribunals, and Offices of the Roman Curia, the special Norms of the same Order to be Observed of Sept. 29, 1908, p. 2, must be observed, which especially determine competence, the manner of treating various affairs, the mode of proceeding of full Congregations, and the functions and qualities of various administrators. Assistants must be distinguished by the laurel of doctor in sacred theology and in canon law. Although, with the cumulation of rights in the Offices of the Holy See abrogated, its own seat has been constituted for each affair, nevertheless, because in peculiar cases there can be place for doubt or error, the ancient law remains firm by which, when a petition for obtaining a matter pertaining either to grace or to justice has been referred to and accepted by some Office, it is licit for no one for any reason to approach another Office of his own accord for the same end; but the consent of the Office itself with which the matter began to be treated is needed, or a decree of the Consistorial Congregation by which permission is given of transmitting the affair. Once a question has been instituted before some Congregation by the path of administration and discipline, and this mode of acting has been admitted by the parties, or at least not refused, it is no longer licit for them to institute a strictly judicial action on the same cause.

What is epikeia? - Epikeia is brought back to interpretation, which is a benign but equitable interpretation of law, by which a universal law, or when it speaks universally, is judged not to extend itself to such a particular case, although clearly comprehended in the words of the law, because of particular circumstances which were not either foreseen or in fact comprehended by the legislator. If, for example, a law prohibits carrying weapons at night, I can carry them if I must go out and I will be meeting my enemy seeking me to death.

Yet in order that there be place for epikeia, the law must not only cease negatively in the particular case, because namely the end of the law is then lacking; but it must cease contrarily, namely because observance of the law is rendered sinful, harmful, or too burdensome. Nor then is it necessary to ask the superior, although this can easily be done. For this is deduced from the very properties of law. For law must be honorable, useful, possible, just; and therefore it does not oblige with grave inconvenience, nor does it burden someone above the rest. And this pertains to epikeia. For epikeia is the directive virtue of laws, according as the notion of justice and common utility demands. Hence epikeia pertains to justice commonly so called, as a certain existing justice according to which legal justice is directed, as by a higher rule of human acts.

But there is also place for epikeia when, although the law in a particular case is not rendered sinful, harmful, or too burdensome, nevertheless from a certain equity and benignity it is judged, certainly or at least probably, that the legislator did not wish to include that case in the words of the law. For equity is preferred to rigor. L. 7 de In integrum restit.; L. 8 de Iudiciis C. And then, while doubt remains, since it almost falls back into dispensation, it is necessary of itself to approach the superior, if he can be consulted. But this will not be necessary when it is evidently established that the mind of the legislator was otherwise; for in manifest things there is no need of interpretation, but of execution. - L. 3 seq. de Legib.; L. 201; L. 201; S. Th. 1. 2. q. 96. a. 6, 2. 2. q. 60. a. 5 ad 2, q. 120, q. 147. a. 4; Suarez l. 2. c. 16; Struggl q. 4. n. 7. 8; Ithur. Cas. 53. n. 9-13; Schmalz. l. 1. t. 2. n. 44.

Who generally can make laws? - Since God is Lord of all, and has ordered obedience to superiors not only ecclesiastical but also civil, not only he himself, but they also can make laws. L. 140. Hence several laws are distinguished:

Eternal law, which is: The eternal reason and will of God commanding the natural order to be preserved and forbidding it to be disturbed. S. Aug. l. 22 Contra Faustum c. 27. It is the beginning and foundation of every law; for from it flows natural law, and from natural law the remaining laws take their force and norm. Cf. S. Th. 1. 2. q. 91. a. 1, q. 93, q. 95 a. 2, q. 96. a. 4; Wirceburg. De Legib. c. 1. a. 2.

Natural law, which is the eternal law of God promulgated to men through right reason, by which we discern what is good and what evil, the good to be done and evil to be avoided. Therefore the object of this law is that which is per se and intrinsically good or evil. In it are distinguished the first principles of morals, immediate conclusions, and mediated conclusions. Cf. S. Th. 1. 2. q. 91. a. 2. 6, q. 94; L. 102; Wirceburg. l. c. a. 3. 4. 6.

Divine law, which is law given by God through revelation. It is twofold; for one is contained in the Old Testament, the other in the New Testament. The Old Testament contained ceremonial, judicial, and moral precepts. Only the moral precepts remain to be observed today, the rest having been abrogated by the New Law. Matt. 19:17; 1 Cor. 7:19. The New Testament, besides counsels, contains precepts of catholic faith, morals, sacraments, sacrifice, and ecclesiastical hierarchy. The moral precepts are those very things which stand by natural right, and the law of the unity and indissolubility of marriage is that which, enacted from the beginning of the world, was confirmed by Christ. Matt. 19:4 seq. Cf. S. Th. 1. 2. q. 91. a. 4. 5, q. 98-108; L. 103. - The legal precepts of the Old Testament, or ceremonies, sacred things, sacrifices, sacraments of the Mosaic Law, all ceased after the Gospel was promulgated, nor can they be observed without sin. Eugene IV, B. Cantate Domino. - Wirceburg. l. c. c. 2.

Canon and civil law. The former is from ecclesiastical power, and it touches those things in the Church which regard the salvation of souls. The latter is from civil power, and moderates rights and obligations between citizens and citizens; between citizens and society and its Prince; between nation and nation. Whence private, public, and international or law of nations arises. C. 1. 13 de Const., C. 2 e. t. in 6; Inst. l. 1. t. 1. 2, l. 2. t. 1. § 11; L. 2 de Origine Iuris etc. §§; S. Th. 1. 2. q. 91. a. 3, q. 95, 2. 2. q. 57; Wirceburg. l. c. c. 3; E. M.

But the law of nations can be taken otherwise, namely insofar as it is distinguished from civil law. Appositely S. Th. 1. 2. q. 95. a. 4 says: "It belongs to the notion of human law that it be derived from the law of nature, and according to this positive law is divided into the law of nations and civil law. For to the law of nations pertain those things which are derived from the law of nature as conclusions from principles, such as just purchases, sales, and other things of this kind, without which men cannot live together with one another; which is of the law of nature, because man is naturally a sociable animal. But those things which are derived from the law of nature by way of particular determination (of certain common things, a. 2) pertain to civil law, according as any city determines something suitably to itself." And thus likewise that one must not kill pertains to the law of nations; for it is derived as a conclusion from the fact that evil must be done to no one. To punish the criminal with such or such a penalty pertains to civil law; for it is a determination of the common law of nature, that he who sins be punished. S. Th. ib. a. 2. "And therefore Caius the jurist says, L. 9 ff. De Iust. et iure: What natural reason has constituted among all men, that is preserved equally among all, and is called the law of nations." S. Th. 2. 2. q. 57. a. 3. Hence the law of nations embraces not only those things which are imposed by the very necessity of nature, as the division of goods, but also those things which flow from a certain highest suitability of nature, and which therefore are preserved by all through use and custom, by a certain implicit compact, or, when doubts arise, by an explicit compact, such as to enter a foreign region, unless danger arises from it for that region; free navigation of every sea; mutual commerce among peoples; transmission of letters; abolition of servitude, etc. - But positive law more determinately defining the various relations to be observed among nations will be able better to be called international law.

180 bis. Note: Natural law is altogether immutable, since it regards those things which by their nature are good and by their nature are evil. Against this immutability, as is clear, certain things permitted by God have no force, which because of peculiar circumstances were no longer opposed to the right order, as, for example, polygamy permitted to the patriarchs, dissolution of marriage, etc.; or were not opposed to that order because the matter is subject to divine dominion, as theft once permitted to the Hebrews. But change is not had as regards the precepts of natural law which are called primary, without which the order of things cannot exist, as, for example, the honor due to God, subjection in man of the lower part to the higher, etc.; but only as regards those precepts which are called secondary, and which regard not the very being of the order, but the perfection of the order, as, for example, the marriage of brothers and sisters permitted to the first parents. - S. Th. 1. 2. q. 100. a. 5; Wirceburg. De Legib. c. 1. a. 5.

Canon Law: The collection of canonical laws constitutes Canon Law. Yet some canonical laws are contained in the Corpus Iuris, others are outside it. The Corpus Iuris contains three Parts. The first part contains the Decree of Gratian, a Benedictine monk, around the year 1150, in which, in a threefold part, under the title on Distinctions, on Causes, on Consecration, there is treated successively of ecclesiastical persons, ecclesiastical judgments, and sacred things. This collection is not authentic; therefore the individual texts have and retain their force from themselves, not from the collection. The second part contains the Decretals by S. Raymond of Pennafort, of the Order of Preachers, in the year 1234, in which likewise, in five books, there is treated successively of persons, judgments, things, marriage, and penalties. This collection, completed and published by order of Gregory IX, is authentic, and therefore the laws contained in it have the force of universal laws from the very fact of insertion into it. The third part contains the sixth book of the Decretals, so called because it was added to the five books of the Decretals of Gregory IX. It was published by the authority of Boniface VIII in 1298; therefore the collection is authentic, and proceeds in the same order as the Decretals of Gregory. This third part also contains the Clementines and Extravagantes. The Clementines are so called from Clement V, who after the Council of Vienne, over which he himself presided in 1311, ordered the Constitutions issued by himself and by the same Council of Vienne to be collected. Therefore this too is an authentic Collection. It is divided into five books. This same third part contains the Extravagantes of John XXII and the Common Extravagantes. The former are constitutions issued in the earlier years of the pontificate of the aforesaid Pontiff. The latter are other Constitutions issued by John XXII and by other Pontiffs, divided into five books. Although all those Constitutions are genuine, nevertheless they do not constitute an authentic Collection. The other Constitutions that are present, besides these, of the Council of Constance, of Trent, and of the Vatican, and also of the Supreme Pontiffs, issued afterward, were not collected into the Corpus Iuris.

Civil Law: Roman Law is contained in the Corpus of Civil Law issued by order of Justinian in the 6th century. It embraces four parts: the Institutes of Justinian, divided into four books, which are subdivided into titles and paragraphs; the Pandects, which comprehend selected responses of jurists, to which the force of law was attributed, also called the Digest or Digests, because they contain legislation arranged in order, and are divided into fifty books, which are subdivided into titles and laws; the New Code, or repeated lectures, that is, in a second edition or publication, C. Cordi nobis, Nov. 16, 534, which contains twelve books, subdivided into titles and laws, and embraces the constitutions of Princes; the Novels, or Constitutions issued after the Code, which are not all of Justinian himself, and are genuine, although their Collection is not authentic as the three preceding parts are. Modern law is contained in modern Codes, which are divided into books, titles, and articles.

Who make laws in the Church? - The Church is a true and perfect society, plainly free, superior to civil society. It has power conferred on it by God not only of directing through counsels, but also of commanding through laws; nor does it enjoy only legislative power, but also judicial and coercive power. Its laws, independently of any civil power whatever, have force and oblige in conscience, and they do not only stand in matters of faith and morals, but also extend themselves to the discipline of the Church. Cf. E. M. 180. The Primacy of the Supreme Pontiff was instituted by Christ, and it is of divine right that Blessed Peter have perpetual Successors in that primacy. But the Roman Pontiff is the successor of Blessed Peter in the aforesaid primacy, not only of honor, but also of jurisdiction, over the universal Church. Likewise the Roman Pontiff is infallible when he defines a doctrine of faith and morals to be held by the universal Church. And he has supreme power of making laws for the whole Church, nor does he in any way violate the rights of Bishops by various reservations. Bishops have no power except one dependent on the Supreme Pontiff and subordinated to him. For the Church is not instituted nor administered in the manner of a republic. C. Si quis 2 de Maior., C. Ut animarum 2 de Const. in 6. Legates also make laws in their Provinces, but in the name and by the authority of the Supreme Pontiff. C. Nemini 10 de Off. legati. Legates are those who are deputed by the Supreme Princes for handling more grave affairs, or a generality of affairs.

A General Council is principally composed of all the Bishops of the catholic world. It can make laws for the whole Church. But its Decrees, in order to have force, must be confirmed by the Roman Pontiff. - A Provincial Council is principally composed of the Bishops of some province, with the Metropolitan presiding. From the Council of Trent it would have to be held every three years. It makes laws for the Province. Its Decrees are to be reviewed by the S. C. C. But they are approved in common form, so that they acquire nothing of new right; and in specific form, so that they become pontifical laws. Sixtus V, C. Immensa aeterni; Pius X, C. Sapienti concilio, Ord. serv. in R. C., special norms c. 7. a. 4 par. 6. But the Metropolitan can promulgate them by public edict. Nor indeed do the Decrees of Councils, whether plenary or provincial, lack their force unless they have been incorporated into diocesan statutes. S. O. Sept. 10, 1896. Bishops make laws in their own dioceses, namely after they have been canonically instituted in their own dioceses, Apostolic letters having been expedited and exhibited, C. Iniunctae de Elect. Extrav. Comm.; C. of Pius IX Romanus Pontifex. For they are true Rulers in their dioceses, Acts 20, 28. But a power of this kind is necessary for the right administration of the diocese. Hence Bishops can indeed make laws, each for his own diocese, even without the consent of the chapter, unless however the question concerns those things which can yield to the prejudice of the chapter or clergy. C. Novit 4, C. Quanto 5 de His quae fiunt a prael. Nevertheless the custom has prevailed that, unless it has been expressly provided otherwise, those things which a Bishop decrees outside synod, the chapter not having been consulted, do not have the force of law, but of a simple statute, which consequently ceases when the right of the Bishop ceases, by death, translation, abdication. But statutes of the Bishop, even outside synod, yet made and promulgated after the counsel of the chapter has been heard, according to the truer opinion, have the same perpetuity as Synodal Constitutions. Bishops can decree nothing against the laws of the Pontiff, nor in matters reserved to the Holy See, since an inferior does not have jurisdiction over a superior. Bened. XIV De Syn. l. 12. c. 5. n. 1, l. 13. c. 5; L. 104, l. 7. n. 6. Archbishops and Patriarchs cannot make laws for the dioceses of suffragans, because they are not superiors properly so called, although they can settle their disputes brought before them. - L. 105; Struggl q. 2. n. 6; E. M.

Can others also besides the Supreme Pontiff and Bishops establish laws? - A Cardinal can, by reason of his dignity, make laws in the Church of his Title. C. His quae de Mai. et obed., C. Querel. de Elect., C. of Innocent XII Romanus Pontifex, Sept. 17, 1692. But the College of Cardinals, when the Roman See is vacant, if necessity does not urge, cannot make laws; rather it must immediately apply itself to the nomination of another Pontiff. Clem. 2 de Elect., C. 3 de Elect. in 6; Pius X, C. Vacante Sede, Dec. 25, 1904, t. 1. c. 1-4.

Abbots and exempt Prelates can make laws for their territory, where they exercise quasi-episcopal jurisdiction; for legislative power is joined to jurisdiction. The cathedral chapter, when the See is vacant, can establish laws which would be necessary for various circumstances. For by right it succeeds to the jurisdiction of the Bishop. C. His quae 11, C. Cum olim 14 de Mai. et obed.; L. 104; Lugo Resp. Mor. l. 1. d. 21. n. 5. Chapters or General Congregations and Regular Prelates are able to establish true laws within the limits of their jurisdiction, according to the proper Constitutions of the Order. For they have statutes approved by the Supreme Pontiff, which grant them this faculty. Jurisdiction, namely granted by the Pope, but not by force of the vow, which, since it is personal, gives only the power of imposing precepts, but by no means of establishing law. Elbel 278-280.

Abbesses or Superiors of nuns cannot make laws properly so called, since they are not capable of ecclesiastical jurisdiction. Nevertheless they can exact obedience in conscience concerning things commanded, or concerning those things which conduce to the advancement of nuns according to the rules. For they have the right of commanding both from the vow of obedience emitted by the subjects and from the necessity of discipline which must be preserved in the community. Hence novices, although they are not bound to obedience strictly by force of a vow, which they have not emitted, are nevertheless in some way bound to obey by reason of regular discipline. For this reason "abbesses can make precepts for the right governance of the house, and even oblige under grave fault." L. 104. Cf. Schmalz. l. 1. t. 31. n. 38. 39; Elbel 281-284.

Pastors cannot establish laws. The reason is that they do not have jurisdiction in the external forum. Colleges can establish statutes for themselves, which bind their members as agreed compacts. Nevertheless the statutes of chapters in cathedral churches, etc., acquire the force of law from the approval of the Bishop. Bened. XIV De Syn. l. 13. c. 5. n. 1. If Chapters neglect to make their own Statutes, the S. C. C. commands Bishops that they themselves make Constitutions and enjoin them on the Chapter to be observed. Lucidi De Visit. SS. LL. V. 1. C. 3. § 4. n. 146. - E. M.

Who make laws in Civil Society? - The Prince or the people or both together, according to the varied form of government, make laws. In monarchical Governments, Princes who enjoy supreme power in civil society make laws. In representative Governments the power of making laws resides in the King, or in the President of the republic, and in the legislative Body constituted from Deputies, or also from Senators. Indeed secular Princes are true superiors in civil society, and that power is necessary for the right governance of civil society. Therefore there is no doubt that their laws can also oblige in conscience. L. 104; S. Th. 1. 2. q. 105. a. 1; E. M.

Note: 1. The Church, condemning liberalism, condemned errors averse to catholic doctrine, not certain forms of civil governments or political factions which are called liberal. S. O. Aug. 29, 1877. The will of the people publicly manifested by no means constitutes the supreme and independent law. A people sins by not receiving without any cause a law promulgated by the Prince. - Syll. prop. 39 seq.; E. M. 166. 168.

2. "The Supreme Pontiff will be able to abrogate or correct civil laws of other Princes if they are opposed to equity." L. 103. For although the Supreme Pontiff does not have direct power to establish all laws obliging in civil matters, but only in ecclesiastical matters, C. 13 de Iudiciis, C. 13 Qui filii sunt legitimi, nevertheless indirectly he has power also in this matter, insofar as he can correct civil laws harmful to the salvation of the faithful, and can supply the negligence of civil Princes, C. 1. 2 de Empt. et vend.; C. 1. 2 de Tregua et pace. And thus of ancient Roman Law "some civil laws are expressly approved by Canon Law, others expressly corrected, others neither approved nor reproved.... Approved laws without doubt oblige in conscience.... Corrected laws indeed do not oblige in conscience.... Those not reproved seem tacitly approved by Canon Law.... C. 1 de Nov. oper. nuntiat.... Likewise C. Super specula de Privil.... And Pope Gelasius, ep. 4 to Emperor Anastasius, wrote: As far as pertains to the orders of public discipline, the Bishops of religion themselves also obey your laws." L. 106. Understand these things not only of Roman Law, which once prevailed, but also of Civil Law which prevails at present. For the order of public discipline and the command of legitimate power are the reason why Roman Law is approved by Canon Law, and the same reason prevails in any well-ordered civil society. But Roman Law with Canon Law once constituted the Common Law, so called because for many centuries the whole world commonly used it.

3. "Certainly both the Church and the state each has its own principate; and therefore in managing its own affairs neither obeys the other, certainly within the limits constituted by the proximate cause of each. Yet from this it in no way follows that they are disjoined, much less fighting." Leo XIII, Enc. Sapientiae christianae, Jan. 10, 1880. Since each power is from God and tends to the same end, they foster one another. Hence, whenever the matter is common to each Law, Civil Law is supplied from Canon Law; and, on the contrary, what is lacking to Canon Law is supplied from Civil Law, C. 1 de Nov. op. nunc., not indeed Roman Law, which once prevailed, but that which now prevails; because each Law is mutually fostered for this reason, that each Power ought mutually to be fostered, certainly not the power which has ceased, but that which exists. Nevertheless Canon Law, when it takes interpretation from Civil Law, must be interpreted not from that which now prevails, but from Common Law; because it was established while that was commanding. - Leo XIII, Enc. Arcanum, Feb. 10, 1830, par. Nemo autem, Enc. Immortale Dei, Nov. 1, 1885; Pius X, Enc. letter to the Bishops of France Vehementer nos, Feb. 11, 1901, Enc. Letter Iamdudum in Lusitania, May 24, 1911; Bened. XIV De Syn. l. 9. c. 9 seq.; L. 104. 105. a 106; D'Annib. ed. 4. p. 1. n. 201; E. M.

Can tyrants make laws, so that these truly oblige? - Laws and sentences, in themselves honorable and just, made by a tyrant, oblige, whether he is such de facto, or by administration; or whether he is such de iure, or by title, but peacefully possesses the kingdom, and has not yet by prescription, by consent of the republic, by cession of the legitimate Prince, become himself a legitimate Prince. The reason is that the former has legitimate power, although he abuses it; the latter also has power, although usurped, and is bound to restore it to the legitimate Prince. For society cannot stand without some power, nor ought it ruin itself. He has power: whence this does not regard those who have usurped spiritual power. But peacefully, etc.; otherwise there is no obligation of obeying him, since he is not yet a true superior. - L. 94, H. A. tr. 8. n. 13; S. Th. 2. 2. q. 104. a. 6; Letter of Leo XIII Magna animi nostri, May 3, 1892. Cf. E. M. n. 705.

Note: The obligation of obeying the laws of a tyrant who has usurped power is founded on the necessity of preserving order in the community. But subjects can also perform certain things which yield to some utility of the tyrant, such as to pay certain tributes, keep watches, dig for the construction of a fortress, etc.; since these are works indifferent per se, and to refuse them would not profit the legitimate Prince, but would inflict most grave harms on the subjects themselves. But it will be altogether illicit to do other works which proximately and formally look to confirming the unjust usurpation and to inflicting damage on the legitimate Prince. La-Croix l. 2. n. 275.

You will resolve: If a tyrant is such by right or title, in the very act of invasion he can make no laws, nor is he to be obeyed, nor is it licit in any way to help or recognize him, so that he may acquire possession of the kingdom and be established in it. The reason is that the invasion gives him no right.

Whether custom has the force of law? - Custom, as it is considered materially, is a manner of acting introduced from frequent acts of the whole community, or of the greater part of the same. But formally it is a certain right constituted by morals, which is taken as law, even if law, namely written law, is lacking. Schmalz. l. 1. t. 3. n. 1. Custom has the force of law. This is clear: 1. From the common opinion of theologians. 2. From various places of either canon or civil Law, from which it is undoubtedly drawn that custom is to be held as law. Cf. tit. de Consuet.; L. 32. 33. 35. 36 de Legib.; C. I. 2. 580. 1654; C. G. a. 671. 3.

By reason; for, once a custom has been introduced, for example, against a law, the law no longer contributes to the common good; and on the contrary, once introduced beyond the law, the reason of the common good urges. - L. 107; S. Th. 1. 2. q. 97. a. 3, 2. 2. q. 79. a. 2 ad 2; Struggl q. 4. n. 28 seq.; Ithur. Cas. 53. n. 7; Bouix De Princip. p. 2. s. 6; Wirceburg. c. 5. a. 4. In the external civil forum generally, by reason of public order, no custom against law is usually admitted, neither past nor future, but only in certain matters determined by the law itself. C. I. preliminary law, year 1866, a. 48, art. 580. 1654, C. I. Comm. 1; C. H. 4 and Law May 11, 1888, a. 5. 6. 7; C. H. 5. 6; C. L. 9; C. G. 671; C. He. preliminary title a. 1. 5. But in canon law, since this Law chiefly regards the good of souls, custom has constantly been admitted, and is also admitted at present.

How manyfold is custom? - A threefold custom is usually distinguished: according to law, namely that which confirms and interprets an already established law by long use, Cf. Can. De istis D. 4; L. Si de interpretatione de Leg. 27 Dig.; beyond law, which introduces a new right, commanding or prohibiting something concerning which no written law is had, Cf. Can. Consuetudo D. 1; L. De quibus de Leg. 32 Dig.; against law, namely by which either a law is not received, or, once received, is abrogated or derogated. L. 107. 108. "Custom both has the force of law, and abolishes law, and is the interpreter of laws." S. Th. 1. 2. q. 97. a. 3. - C. I. 580. 1654; C. G. 671.

Besides, one custom is universal, which obliges all in the universal Church, or in the whole territory of some temporal Prince; another particular, which obliges only in some place, in some diocese, etc. The style of the Curia is reduced to particular custom, which is taken for the customary observance in the Roman Curias, and for unwritten law, and is to be observed as law from the Constitution Cum gravissimae of Paul III. - But generally the customary observance in some place is called the local style, and outside the place it has no force, Riganti on Reg. 42. n. 225, on Reg. 45. § 1. n. 97 etc. From C. I. Comm. 89, C. I. Civ. 1513, in the matter of commerce style and custom prevail over common Law. - Suarez l. 7. c. 5. n. 5.

What things are required for having custom? - In order that custom be legitimate several conditions are required:

1. That it be rational, that is, that it not be an incentive of sin, nor pernicious to the common good. Otherwise it can never acquire the force of law, since law must be honorable, useful, just. Hence there can be no custom against natural and divine law, but only against human law; nor against this in those things which break the bond of ecclesiastical discipline, C. 5. 11 de Consuet., or which can be constituted only by privileges. For since custom is an unwritten law, it can be had only in those things which can be constituted by laws. L. 39 de Legib.; L. 107; S. Th. Quodl. 2. a. 8; Schmalz. l. c. n. 7.

2. It is required that it be introduced by the whole community, or at least by the greater part of it, capable of being governed by law, and capable of making law; and if it cannot of itself make law, it suffices that its manner of acting can obtain the force of law, the consent of the Prince acceding. For that is judged morally done by all which is done by the greater part. But custom must be introduced by those for whom laws or statutes can be constituted. Hence not only perfect societies can introduce custom, but also imperfect ones, a province, city, diocese, chapter of canons, religious order, monastery, etc. Women cannot introduce customs against the proper laws of men, nor conversely; as neither can ecclesiastics against the laws of laymen, or conversely, unless the matter is common. Therefore clerics as regards spiritual matters are not obligated by a custom made by laymen, since laymen are incapable as regards spiritual matters of introducing custom for clerics. Private persons cannot introduce custom. L. 32 de Legib.

3. But it must have been introduced through repeated acts, and not interrupted until the custom is completed, voluntary acts, that is, neither from ignorance nor from error, for example if the people thinks that a law exists which in reality does not, nor extorted by force and fear, but from an intention of introducing custom and of obliging themselves, or disobliging themselves, finally public acts. For only these acts, with these conditions posited, can be had as conducing to the common good, so that then the legislator can reasonably consent to such a manner of acting. Moreover custom, since it has the force of law, must be promulgated no less than law. - Not interrupted: they can be interrupted in two ways, in fact, if the community ceases to act; in right, if the superior urges the law. With the intention of introducing custom: this mind or intention is gathered from circumstances, namely if the custom is constantly observed, and with no light inconvenience, if transgressors are punished, if pious men commonly think so. - L. 39 de Legib.; S. Th. 1. 2. q. 95. a. 4, q. 97. a. 3.

4. It is by no means required that good faith always be present from the beginning, for even by sinning a custom can be made which afterward becomes honorable. For custom against law has a threefold state. In the beginning, all those introducing the custom against the law sin. In progress, those using a custom introduced by their elders no longer sin, but they can be punished. In the end, they neither sin nor can be punished when using the custom already prescribed. Therefore custom cannot altogether be equated with prescription. L. 107; Schmalz. l. c. n. 6.

5. It is required besides that it endure for a long time. But here one must distinguish: either custom is introduced by way of connivance, namely the legislator knowing and conniving, which happens when the legislator knows that the law is not received and dissembles, although he could easily urge observance; or it is introduced by the ordinary way of prescription, the legislator being ignorant. If the first, Benedict XIV teaches that "no space of time is necessary.... For then, after a few acts tolerated by the superior, it is presumed that he by this very connivance tacitly revokes his law, and does not wish to bind by it the community to which it is displeasing." De Syn. l. 13. c. 5. n. 3; Ithur. Cas. 53. n. 7. 8. If the second, there are several who require 10 years, both as regards Roman Civil Law and Ecclesiastical Law. But others require 40 years as regards each Law. For from this Law an inveterate, long-lasting, long, long-lived custom is required. L. 32. 33. 35 de Legib.; L. 1. 2 C. Quae sit longa. Consuet.; L. 107. 139, l. 3. n. 849. And here must be recalled centenary and immemorial custom, by which all those things can be acquired which can be acquired by privilege and indult of the Prince, C. 13 de Iudic. n. 5; and it is not revoked even by a clause revocatory of any custom whatsoever having been added, "unless it is expressed, because when the superior wishes also to revoke that custom, he expresses it." L. 109.

6. Now custom can obtain the force of law insofar as the consent of the Prince accedes to it, either express, or tacit, which is had when the Prince knows the custom and, although he could, does not contradict it, or at least legal consent, which is that which is had beforehand through laws universally approving legitimate customs. For legal consent of this kind it is not required that the Prince know the custom; nevertheless it is required that it not be established that he was unable to protest against the custom. For if the Prince constantly resists, then no custom is made. But if no law of this kind is present, such a general will is always supposed in the legislator. For the common good demands this. - C. Cum tanto fin. de Consuet.; L. De quibus de Legib.; L. 107, l. 3. n. 290. 1009; Suarez l. 7. c. 8. 15; Schmalz. l. 1. p. 1. t. 4; Gur. Cas. 132 seq.; S. Th. 1. 2. q. 97. a. 3; E. M.

What if contrary custom is prohibited by law? - "If the clause is added, notwithstanding any custom whatsoever, the opposed past custom is understood to be reproved, but not the future.... But if the clause reproves any future custom whatever, still they say that it is more probable that such a custom can abrogate the law. If it is reproved... as irrational... as contrary to natural or divine law, then no custom can have force. But if it is reproved as irrational for the time in which the law is made, then from a new cause it can be rendered rational." L. 108, l. 6. n. 325 toward the end; A. S. S. v. 4. p. 26. Since every law is rational, it cannot exclude rational contrary customs after they have already been formed. Therefore, if the clause is added, any contrary custom in the future being excluded, this clause renders more difficult an arising ordinary contrary custom, and excites the vigilance of the legislator to impede it as far as possible, but it will not exclude an extraordinary, centenary and immemorial custom already formed.

What is the subject of law? - The subject of law and obligation are all and only subjects for whom the law has been made. For the whole force of obliging is in the superior. But only a subject corresponds to a superior. But laws are not always made for all subjects, as military laws, laws of clerics, etc. - General local laws are made for any place, and particular laws for a particular territory; those are held by them who dwell in the same territory, and have domicile or quasi-domicile there, or are staying there. Cf. 199. - S. Th. 1. 2. q. 93. a. 5, q. 96. a. 5; L. 153; Wirceburg. c. 4. a. 4.

You will resolve: Every man is subject to natural law. For natural law is the very reason and divine will commanding the order to be preserved and forbidding it to be disturbed, promulgated through the very light of reason, namely insofar as God inserted it into the mind of men to be known naturally. But every man enjoys reason. Therefore it is not licit to provoke infants, drunkards, and the insane to intrinsically evil actions. L. 153. 155. - All and only those habitually possessed of reason, who exist under the jurisdiction of the legislator, can be subject to a positive law commanding or prohibiting human action. For law is a rational and stable rule for the common good. But men habitually lacking the use of reason cannot be directed by a rational and stable rule to the common end of society. Hence meats are licitly given to infants not yet having obtained the use of reason, and to the perpetually insane, on prohibited days. They are illicitly given to those insane for a short time and to drunkards. L. 153. 155; Elbel n. 355 seq.; Struggl q. 3. n. 8 seq.

The legislator is not bound directly by his laws as such, that is, as regards the obliging and coercive force; nevertheless indirectly, as regards the merely directive force, from a certain equity he is bound to conform himself as head to the members, namely as regards those laws which befit his state. Hence "it is probable, scandal being excluded, that he is bound only under light fault, because he is bound to the law only from honorableness." L. 154. Scandal being excluded: for if scandal were present in a public transgression of the law, he would be bound to observe it; by no means however in that case would he also be subject to the penalties which he himself imposed on transgressors. Likewise he is also bound to use equal condition in contracts. C. Iustum Dist. 9; L. 154; S. Th. 1. 2. q. 96. a. 5; Struggl q. 3. n. 1; Lessius De Iur. et Iustit. l. 2. c. 35. dub. 5. n. 33; Suarez De Legib. l. 3. c. 35.

Infidels, not yet baptized, are not obligated by the laws of the Church, although they are bound to enter the Church. 1 Cor. 5:12. On the contrary, heretics, schismatics, and the excommunicated are of themselves held by ecclesiastical laws. This must be understood of the excommunicated as regards acts not interdicted by the excommunication itself. But as regards heretics, in places where they are tolerated, penal laws have no effect. Trent sess. 7. c. 8 de Bapt.; Schmalz. l. 4. t. 1. n. 378-380, t. 3. n. 99, l. 5. t. 7. n. 171-174; Reiffenst. l. 1. t. 2. n. 274; L. 154.

Greek Catholics, and generally Orientals, although they are held by definitions of catholic doctrine concerning faith and morals, nevertheless are not bound by disciplinary laws of the universal Church, unless something is established concerning them, either by express mention made of them, or by reason of the matter implicitly extended to them by the law. Indeed Constitutions of Roman Pontiffs made for one oriental rite are not extended to other rites without express extension. Nor indeed is it licit for Catholics to depart from the custom and observance of their own rite approved by the Holy Roman Church. E. M. de Stat. partic. 213; Bened. XIV, C. Etsi pastoralis, May 26, 1742, § 9. n. 24, C. Allatae, July 26, 1755; Collect. S. C. de P. F. n. 113. 1999.

Practically speaking, are heretics excused from the observance of the laws of the Church, although of themselves they are bound? - R. Affirmatively, 1. by reason of ignorance in which they are involved. 2. Because it is not presumed that the Church wishes to urge this obligation, lest sins be multiplied in vain, at least as regards merely preceptive laws, which regard the spiritual good of souls. As regards merely preceptive laws; for one is not excused as regards universal laws commanding human action, invalidating laws; because these directly regard public good and order, such as the laws of impediments of marriage, unless the Church positively excepts them, as was done by the Decree Ne temere as regards the form of marriage, which, if they enter marriage among themselves, they are not bound to observe.

Are children held by ecclesiastical laws as soon as they have obtained the use of reason, although they have not yet completed seven years? - More probably this must be denied, because human laws attend to those things which commonly happen. But the use of reason does not commonly happen before the completion of seven years. Moreover, all admit that children before seven years do not incur penalties imposed on transgressors, unless this is expressly declared. Indeed they do not incur ordinary penalties, those which have their effect after the sentence of a judge and even those before the sentence of a judge, unless they are puberes, such as males after the 14th year is completed, girls after the 12th year, or unless express mention is made of them.

Also by civil law they incur milder penalties. C. I. pen. 53 seq.; C. G. pen. 66 seq. Moreover it must be noted that children, after completing seven years, are not obligated by human laws unless they are concerning matter accommodated to their age. Hence they are not obligated by the law of ecclesiastical fast. But they are held by the laws of annual Confession, of hearing Mass, of abstinence from meats; and therefore parents sin who neglect their fulfillment on the part of their own children.

Whether they are also held by the paschal Communion was a controverted matter among theologians. But the S. C. on the Sacraments affirmed that they are held both to Confession and to Communion, Decree Quam singulari, Aug. 8, 1910: "The age of discretion, both for Confession and for Holy Communion, is that in which the child begins to reason, that is, around the seventh year, whether above it, or even below it. From this time begins the obligation of satisfying each precept of Confession and Communion." - L. 155, l. 3. n. 270; S. Th. 2. 2. q. 147. a. 4; La-Croix 676; Struggl q. 3. n. 11. 12; Elbel 367 seq.; E. M.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cf. N. 84.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cf. the following paragraph, The Power of Bishops.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. A bishop, in a diocesan synod, reserved to himself for the future some sins and some censures. After the bishop had died, the chapter, the see being vacant, ordered this reservation of cases to be printed, so that it might come to the knowledge of all confessors. It placed this title on the folio, edited and printed: Cases and Censures in the Synod of N. Diocese, held in the year 1637. It was doubted whether that reservation had sufficient force.

Q. 1. What is law? 2. What as to the case?

R. To the first, cf. I. M. 166 seqq. To the second: Cardinal De Lugo, Resp. Mor., l. 1, d. 21, thus resolved this case: "I inclined more to the opinion denying the value of that reservation.... I am moved..., namely because the chapter did not seem to use its own authority for promulgating that reservation and inducing its obligation. For it did not signify that it reserved the absolution of those cases, nor did it say that it supplied the authority which, the bishop having died before promulgation, he did not have; but it only caused those cases to be printed as having been reserved by the bishop in diocesan synod, the proper authority of the chapter, the see being vacant, not being interposed, but only the diocesan synod with the bishop being commemorated. Therefore, since the authority of the bishop had already expired, the obligation of law could not begin when the legislator can no longer command and oblige. For I suppose that before promulgation a law is not a law, except inchoatively; nor is promulgation merely a condition or application of a law already preexisting, but rather it is a constitutive part of the law itself in the character of law.... And whatever may be the case concerning this, nevertheless it must be admitted that promulgation, required for the obligation of law, is not promulgation through private knowledge which individual subjects may have about a law already made, even if the greater part of the subjects had that knowledge; but it ought to be public knowledge, that is, arising from a solemn act by which, at the command of the Legislator, the law is published, as the doctors commonly note. But the reason from what has been said is that the act of commanding, such as law is, includes a speech by which the Prince or Legislator commands and manifests his will to the subjects, which happens when the law is promulgated. But promulgation cannot be the speech of the Prince except by command and authority of the Prince. Therefore, since the dead bishop can no longer speak to the subjects, or command, it follows that promulgation made by the chapter alone cannot be made in the name of the bishop, nor receive authority from the same bishop; therefore that promulgation is not sufficient for inducing obligation, since through that promulgation no superior speaks and commands. Nor does the dead bishop, who now can neither speak nor command. Nor does the chapter, which, although it could command, nevertheless does not signify that it commands, nor interposes its own authority, but that of the bishop alone, now dead. Therefore the promulgation required for obliging was lacking, namely promulgation made by the Superior himself, commanding through that same promulgation."

2. "Caius, a counselor of great name and no less wealthy, had understood that in the last assembly it had been decreed that the value both of ducats and of grain would be diminished, while on the contrary the value of another certain silver coin would be raised. Wherefore, thinking that he should use the opportunity of time and of this private knowledge, one or two days before the aforesaid Constitution was solemnly promulgated, he asked from a certain Jew a notable sum of that species of silver coin, in place of which he gave him ducats and grain. After some days, the promulgation of the aforesaid Constitution having already been made, he came to the confessor, having ingenuously confessed that he had notably deceived a certain Jew, and asked to know whether on account of this he had sinned, or had incurred an obligation of restoring."

Q. 1. Is promulgation of a law necessary for its obligation? 2. What will the confessor answer to Caius asking?

R. To the first, affirmatively. For promulgation is the act by which a law is exhibited and shown to the subjects. Whence it is also clear that, although promulgation is necessary for the obligation of the law, it nevertheless does not pertain to its essence. For the essence of law consists in this, that it is a rule of morals; and promulgation is not regulating, but only showing the rule. Cf. I. M. 166, 167.

To the second: "Caius, by force of this deed, at least speaking in itself, did not sin, nor did he contract any obligation of restoring.... The reason is that, since, at the time of this exchange made, the ducats and grain were truly in their former value, it is certainly clear that Caius, by giving gold and grain for silver, repaid an equivalent. Granted even that he is supposed to have known that the grain would at once be of lesser value after the promulgation, nevertheless because this promulgation had not yet happened, nor was Caius otherwise obliged to intimate it to the Jew, hence he inflicted on him no injury at all, but wisely used his right in order to avoid the damage which he foresaw was threatening him from retention of the ducats and grain.

"Nevertheless I said that Caius, in this deed, speaking in itself, did not sin. For from the manner of accusing, he seems to have insinuated quite clearly that at least from erroneous conscience he sinned gravely: for deception of one's neighbor in grave matter is not free from grave fault. Therefore since Caius thought that he was deceiving, indeed willed gravely to deceive, the Jew, it seems practically certain that he sinned gravely, although he is no longer held to rescind the contract, nor to restore anything to the Jew, because, according to what was just said, the contract was truly just." Elbel 257, 258; G. 89, 90. Cf. I. M. 1147.

3. Epipodius the theologian and Thiphonius the canonist, conferring with each other, sharply dispute about the promulgation of pontifical law. The former contends that it is enough if its promulgation is made at Rome, or in the principal city of the whole world, so that it has force for obliging all the faithful. But the latter contends that promulgation must be made in the individual dioceses, to manifest knowledge of it to all of them. For Rome is very distant from the greater part of the dioceses of the whole world.

Q. 1. How and where must laws be promulgated? 2. In order that pontifical laws oblige, must they be promulgated not only at Rome, but also in each diocese by its own bishop?

R. To the first, cf. I. M. 168, 169. To the second: first, negatively, if it is a question of Pontifical Constitutions concerning a matter of faith and morals. The reason is that they are not new laws, but mere declarations of natural and divine law, already sufficiently promulgated before.

Secondly, affirmatively, if it is a question of disciplinary laws, and promulgation of this sort is established in the law itself, as in the Tridentine Decree, session 24, ch. 1, De Ref., concerning the nullity of clandestine marriage. The reason is that the mode of promulgation depends altogether on the will of the legislator.

Thirdly, if it is a question of the same laws, and nothing is had in the law concerning a special promulgation to be made, "the first opinion affirms, and several grave authors hold this.... But still, according to this first opinion, Bulls inserted in the Bullarium must be excepted, because these are already the Body of laws; and in this all agree, as Cardinal Petra testifies.... But the second opinion, very common and more probable, denies it.... When the Apostolic See wishes some law not to oblige except after publication made in the provinces, it expresses this.... When the Pontiff establishes that his Bulls be published only at Rome, it is by no means likely that he intends to oblige not the other provinces, but only the Roman province. When the Pope wishes to bind only Romans, he is accustomed to issue particular Edicts.... But making statutes for the whole Church, and promulgating them solemnly with obligatory clauses, he is without doubt presumed to wish to oblige all the faithful as soon as knowledge has reached them.... This is clearly deduced from c. 1, Ad haec de Postulat. Praelat..... The same is sufficiently inferred from c. Quia cunctis 1, § Nec obstaret, De Concess. praeb. in the Sixth.... But what gives more force to our opinion are two clauses.... One clause speaks thus: 'But in order that the present letters may more easily come to the knowledge of all, and that no one may be able to allege ignorance of them, we will that they be affixed to the doors, etc., and published, and that, thus published, they bind and affect all and each whom they concern, just as if they had been personally intimated to each one of them.' The other says: 'But we will that to transumpts of the present letters, even printed ones, subscribed by the hand of some public Notary, and fortified by the seal of a person constituted in ecclesiastical dignity, the very same observance everywhere be applied, both in judgment and outside it, as if they had been exhibited or shown to each one.' But these clauses show too plainly that the mind of the Pontiff is to wish to bind all the faithful to statutes of this sort independently of their publication in individual Provinces. And Sylvius and Roncaglia, although they admit the first opinion as probable, nevertheless hold as certain that all Bulls promulgated at Rome with the aforesaid clauses oblige in themselves without another promulgation. Moreover, Roncaglia rightly says that from the reported words of such clauses a firm argument can be adduced for the probability of the first opinion with respect to those Bulls where the aforesaid clauses are lacking: for nothing in laws is to be supposed placed in vain, and those clauses would be altogether superfluous if all Bulls, published at Rome even without such clauses, obliged before any other publication in the Provinces.... Furthermore Suarez and others probably say that pontifical laws which invalidate some contract valid by its own nature... or which take away jurisdiction, for example, in the sacrament of penance, concerning these we can benignly interpret the mind of the Pontiff to be that he does not wish them to have effect unless after they have been promulgated in the dioceses; otherwise they would redound to the detriment of many, who would be invincibly ignorant of them." Lig. l. 1, n. 96.

This latter opinion seems altogether truer from the fact that a response was given by the Sacred Penitentiary, 8 November 1821, that the Constitution Ecclesiae of Pius VII, and on 15 June 1870, the Constitution Apostolicae Sedis of Pius IX, oblige on the day after its publication made at Rome. It is confirmed from the very recent Constitution Officiorum of Leo XIII concerning the prohibition and censure of books, which the Supreme Pontiff wills to be inviolably observed by all, and which indeed is to be observed by all after the promulgation already made at Rome.

Fourthly: "Not only Pontifical Constitutions which have been solemnly promulgated induce the obligation of law, but also all others which, from the use and consent of the universal Church, for several centuries now are held as sufficiently promulgated and authentic." St. Alphonsus l. 1, n. 105, 106; Struggl. tr. 3, q. 1, n. 21, 22.

Fifthly: "It is special in censures that, for their obligation, it is required that they be published not only at Rome, but also through the prelates of places. C. Cum infirmitas 13, De Poenit. et Remiss." Thus Engel, l. 5, tr. 39, n. 122. But the disposition which is contained in the aforesaid chapter can be held as a special disposition for a special matter. For it is a question of physicians called to the sick, who must before all things induce the sick person to confession. Moreover in the Constitution of Pius XI, Apostolicae Sedis, IV Id. Oct. 1869, by which censures latae sententiae presently in force are established, this special disposition is not had, and that Constitution is in force everywhere. - G. 92 seqq.; Elbel 254, 256.

4. Flavius, a cleric, on account of grave negligence committed in the care of souls, having been denounced to his Ordinary and found culpable, was condemned to perform spiritual exercises for eight days in a certain monastery, and to give fifty lire to the same monastery by way of alms. This latter Flavius in no way performed. As for the former, during that entire eight days, he did not make even one meditation, saying that mental prayer is a merely internal act, which cannot be commanded by a human superior. Hence he neglected all the other spiritual exercises, content only to dwell in the monastery for eight days, which he spent reading profane books and newspapers.

Q. 1. Can merely internal acts be the object of law and precept? 2. What concerning Flavius?

R. To the first, cf. I. M. 117. To the second: the bishop altogether legitimately condemned Flavius to the aforesaid penance, the proportionate gravity of the fault being supposed. For although the bishop in words, in his sentence or mandate, did not express that he wished to oblige Flavius gravely, nevertheless by the fact he must be judged sufficiently to have expressed it, from this, that any superior, speaking regularly, must be presumed to have wished to oblige according to the capacity of the matter. Hence, Flavius, by omitting to give to the monastery the alms of fifty lire, sinned gravely; because when matter commanded by a superior is divisible into several parts, and those parts in themselves constitute grave matter, the neglect of any part is grave sin. - But besides, Flavius sinned gravely because of the omitted spiritual exercises, which also themselves constitute grave matter. Nor indeed does the reason of Flavius avail anything in the case; because spiritual exercises do not consist in merely internal acts, or in mental prayer alone, but in several acts at once internal and external: in withdrawal from all secular business and profane actions; in pious readings; in conferences with the spiritual Father, or confessor, or director of the exercises; in due preparation for meditation, after first hearing or reading over the various points of meditations; in meditations and examinations of conscience, on bent knees at least for some space of time; in vocal recitation of prayers; in visits to the Most Holy Sacrament, etc. All these, as is clear, are mixed acts, which without doubt can be commanded by human authority. - Elbel 339-341; G. 95, 96; Lugo, Resp. Mor., l. 6, d. 7.

1. A certain archbishop, when various means had been tried and other penalties imposed, could not root out an abuse which had crept too much into his diocese, by which some, for various reasons, wishing to contract marriage secretly, under pretext of infirmity or some similar thing, called the parish priest to themselves, and, with him present and two witnesses, suddenly contracted marriages before the parish priest could flee. From these marriages many scandals and dissensions arose. Therefore, by law and public edict, he not only prohibited this, but removed from parish priests, and from other priests with their license, the faculty of assisting at marriages of this sort when denunciations had not first been made; and he suspended them all as to this act of assisting and declared that marriages, if any thereafter were made in this way, would be invalid, on account of defect of the power of assisting on the part of the parish priest, or of another priest, which had now been taken away by this law.

Q. 1. Can bishops make laws? 2. Could the archbishop validly do this?

R. To the first, cf. I. M. 181. To the second, negatively. The first reason is because, since "the Council of Trent requires for the validity of marriage only the presence of the parish priest and of two witnesses, the archbishop could not invalidate marriages made before the parish priest and witnesses, such as are those of which there is question, since he truly still remains the true parish priest, retaining the title of his parish, especially since that assistance is not an act of jurisdiction in the parish priest; wherefore, even if, on account of excommunication or some other censure, he were suspended from all jurisdiction, he would still validly assist at marriage, as Sanchez teaches with the common opinion, l. 3, d. 21, n. 4." Lugo, Resp. Mor., l. 1, d. 45, n. 5. The second reason is because, "whatever may be the case concerning other matters, nevertheless in this matter the bishop cannot by his law introduce an impediment invalidating marriage beyond those which have been introduced by common law; for this, as being a most grave affair, and one from which most grave inconveniences follow, the Supreme Pontiff has deservedly reserved to himself alone, as the doctors commonly admit, whom Thomas Sanchez, l. 7, De Matr., d. 1, n. 9, Basilius Pontius, and all others follow." Lugo l. c., n. 6. It is confirmed from the response of the Sacred Congregation of the Council in the same Lugo, l. c., n. 4.

2. Cunegunda, abbess of nuns, commands her professed nuns and novices certain exterior exercises of mortification and penance, and decrees that these are always to be observed in the future. Exterior mortification, she says, is very useful for spiritual perfection; and it was omitted in the Constitutions approved by the Holy See, and so was left to the power and discretion of the Abbess. Moreover, she commands all equally that each one exhibit to her in writing all her virtues and all her sins, every month. The rendering of conscience, she says, was always in use among the Saints and the ancient Monks; and it is a salutary and best means of holiness and perfection, indeed to be counseled to all.

Q. 1. Can the Abbess or Superior of nuns make laws? 2. What must be thought concerning Cunegunda?

R. To the first, cf. I. M. 182. To the second: the abbess or superior of nuns can indeed, in particular cases and to particular or individual professed nuns, impose precepts in virtue of holy obedience, by force of the vow of obedience, obliging gravely or lightly, with respect to those things which pertain to regular discipline, according to the Rule and Constitutions approved by the Holy See. For otherwise nuns would profess obedience by vow in vain. To professed nuns: for precepts of this sort cannot be imposed on novices, since they have not yet emitted the vow of obedience. But since she does not have spiritual and ecclesiastical jurisdiction, she does not have the power of making laws; and so Cunegunda cannot impose on the whole Community, and in perpetuity, those exterior exercises of mortification and penance. And since they are not found prescribed in the Constitutions approved by the Holy See, they would be imposed not according to the Constitutions, but beyond the Constitutions; whence also under this head Cunegunda lacks the aforesaid faculty. For she herself cannot establish a new Constitution beyond the approved ones. - But, although the superior of nuns, as being a woman, lacks ecclesiastical jurisdiction, nevertheless she has economic power, which in itself does not depend on the Keys of the Church or on sacred Orders, but is annexed by natural law itself to any superiority, and is found in any community or society which is ruled by some superior. Hence, by force of this power, a superior can also command something to novices, and correct them, or restrain them by some moderate penalty; but this power, as is clear, is very limited and restricted. Therefore the first precept of Cunegunda is of no force.

The same must be said of the other precept of Cunegunda; which "is no less imprudent than iniquitous. Iniquitous, because she wishes to bind subjects to defame themselves concerning their offenses, however hidden, and indeed before a woman, to whom neither God nor any mortal ever wished to entrust the power of discussing the hidden places of consciences. But it ought to be judged imprudent from the fact that, for the simpler ones, it can easily become a stone of offense, and give occasion to innumerable sacrileges, while they persuade themselves that they are held to put all their offenses, however hidden, on paper, which nevertheless, shame prevailing, they will not do; nor even will they expose more to the confessor than they have noted down in writing. Indeed such superiors, by their damnable curiosity, will expose themselves to dangers of temptations while they attempt to penetrate the hidden things of consciences, which God willed to reserve to himself alone and to his vicars, namely priests." Elbel 284. - Elbel 281-284; G. 97, 98.

This is confirmed from the general Decree of the Sacred Congregation of Bishops and Regulars, 17 December 1890, in which rendering of account of conscience of this sort is prohibited, both for monasteries of nuns, even of solemn vows, and for Institutes of simple vows of either sex, only those Institutes of men excepted which are altogether ecclesiastical in nature and governance. And in the same Decree it is declared to be an abuse that "sometimes in their Constitutions manifestation of conscience had been permitted, that the pupils might more easily learn from experienced superiors, in doubts, the arduous way of perfection, and, contrary to this, by some of these an intimate scrutiny of conscience, which is reserved uniquely to the sacrament of penance, was introduced."

3. Amalia has sons of five, seven, and nine years, to all of whom she is accustomed to give meat on Friday, because, she says, they are not bound by the law of fasting; and because, since the meat was left over from Thursday, it could not conveniently be preserved until Sunday.

4. Exuperius, very early in the morning, departs from the place of his domicile, where a special and obligatory feast of the Patron of the place is celebrated; and he comes to a nearby place, where there is also celebrated a special and obligatory feast of the Patron of the place. In neither place does Exuperius hear Mass that day. Having returned to his homeland after some days, he finds a special fast observed there. But, since before he began the journey he had already in the morning and at midday fortified his stomach with a solid breakfast and an abundant dinner, and with meats, in the evening in his homeland he is refreshed with the customary whole supper and with meats.

Q. 1. What is the subject of law? 2. What concerning Amalia and Exuperius?

R. To the first, cf. I. M. 192 seqq. To the second: Amalia could give meat to the five-year-old son, because he is not yet habitually master of reason. But she could not give meat to the seven-year-old son, the seventh year already completed, and to the nine-year-old son; because, although these are not yet held by the law of fasting, nevertheless they are held by the law of abstinence. For they are held to observe those ecclesiastical laws whose observance is proportioned to their powers. Nor indeed, speaking in itself, is it an excusing reason that the meats are left over from Thursday and could not be preserved until Sunday.

Exuperius is exempted from grave sin because he did not hear Mass; because absent from his homeland, he could not be held by the law of his homeland, nor was he bound by the law of the place in which he was staying, because in that place he was a traveler. But having returned to his homeland, although he was excused from the law of fasting on that day on which he had returned to it, because fasting was no longer possible after several meals had been taken, he was nevertheless still held, during the remaining part of the day, to observe abstinence from meat. - G. 79-87; Elbel 367-472.

5. Paphnutius, a monk dwelling in Rome, on the vigil of the feast of the Purification, on which, by vow, one fasts in the City, does not fast, because, he says, Regulars by force of the privilege of exemption are not held to fasts prescribed by the authority of the Ordinary of the place.

Q. What as to the case?

R. La-Croix, l. 3, p. 2, n. 1274, speaking of religious, says: "Religious are held to ecclesiastical fasts of common law, as is clear in itself; but they are not held to those which are introduced by special custom or vow of the townspeople among whom they reside, because they are not judged part of the profane community; thus Diana, who nevertheless had said that they are obliged by a general custom received in some city. Nor are exempt religious held to those things which are introduced by Ordinaries of places, although by new law they are held to observe diocesan feasts and cessation from divine offices in time of interdict; thus Sanchez, Bonacina, Castro Palao, and others commonly with Diana."

Nevertheless Paphnutius is bound at Rome to the aforesaid fast, both because at Rome there is already such a custom that religious also observe that fast, and because otherwise wonder and scandal could easily exist for the people, especially if other monks also, led by the same reason, should themselves not observe the fast.

"If in some community of Regulars," says Benedict XIV, De Syn., l. 13, c. 4, n. 7, "an ancient custom of observing fasts which the bishop, whether in synod or outside synod, appoints had prevailed, no one doubts that the same community can be compelled thereafter to observe them: for then the obligation of fasting does not arise from the jurisdiction of the bishop, but from the custom itself, which has force for inducing the obligation of law.... similarly, not by the precept of the bishop, but by natural law, Regulars are compelled to fast on those days which the bishop has ordered to be days of hunger, if by not fasting they give scandal to others." And after he had affirmed that the fast on the vigil of St. Apollinaris, prescribed in the diocesan Synod in the year 1627, is observed in the whole diocese of Ravenna both by seculars and by regulars, he adds: "Clement XI, so that every year there might be celebrated the memory of liberation from the danger of the earthquake by which the Roman City was afflicted, established that a fast was to be observed yearly on the day before the feast day of the Purification of the Blessed Virgin Mary; and although this fast was commanded by the said Pontiff as bishop of the City, it is observed up to the present day by seculars and by regulars."

6. Zephirina, her husband having died, remained in her parish. Civilly married to Lucretius, who lived in another parish, she was led into his house. After a week they contract marriage before the parish priest of the former parish of Zephirina. Is it valid?

R. A woman has the domicile of her husband, and having become a widow she preserves it until she acquires another. C. I. 18; C. G. 108. But when other marriages intervene, the domicile of the woman is changed. L. 22, Ad Municip. Therefore Zephirina, although only civilly married, having been led into the house of the man living in another parish, first lost her domicile and acquired a new one. Therefore even if she had contracted marriage not after a week, but on the same day, before the parish priest of the former domicile, the marriage would have been null. - I. M. 199.

7. A girl, bereft of parents, left the domicile of the family, not with the mind of not returning, but so that she might be a servant for some time. Meanwhile she completed majority. - Soon, intending to enter marriage, she goes to the parish of the domicile of the parents, or of the family. - The parish priest says: Now I have no jurisdiction, and he requires delegation from the parish priest of the preceding quasi-domicile. - Had the aforesaid parish priest lost all jurisdiction?

Law is the external and remote rule of human acts, just as conscience, or the practical dictate of reason, is the internal and proximate rule of the same acts.

One must treat 1. of laws in general; 2. of the principal species of laws.

We shall speak of the nature of law, - its author, - object and subject, - promulgation and acceptance, - obligation, - interpretation, - dispensation and cessation.

81. • DEFINITION. Law is an ordination of reason unto the common good, promulgated by him who has care of the community (St. Thomas, 1.2, q. 90, no. 4). Hence it differs from a precept. For law is essentially made for a community by a public person and for the common good, while a precept properly so called can also emanate from a private person, and can regard private subjects unto their private good. Such is the command of a father over a son, or of a Prince over some subject. Yet often laws also are called precepts. Thus the divine laws handed down to Moses on the mountain are called the precepts of the Decalogue.

There is a manifold distinction between law and precept, namely 1. by reason of the one commanding, because the legislator is a public person, but the one giving a precept can be a private person. 2. By reason of the subject, because law is made for a community, but a precept even for a private person. 3. By reason of the end, because the end of law is the common good, but the end of a precept is private good ¹. 4. By reason of place, because law affects the territory, but a precept affects the person, and, as they say, clings to the bones. 5. By reason of duration, because a precept ceases by the death of the one commanding, but law is not extinguished together with the legislator.

¹ Understand the direct and immediate end; for mediately and indirectly law tends to the private good of each one, but a precept tends to the common good: namely insofar as the common good of all redounds to the good of individuals, and vice versa.

DIVISION. Law is distinguished in a manifold way:

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

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

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

4. Moral, or penal, or mixed, according as it obliges under fault alone, or under penalty alone, or under both at once.

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

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

7. Favorable, or odious, according as it restricts or enlarges liberty ².

² Law per se is always considered something odious. Yet there are laws which look to enlarging favor, or rather to lessening bonds. A law of this sort is one which declares valid marriages contracted by children under paternal power without the consent of parents, or even against their will.

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

82. • QUESTION. What are the properties or conditions of human law?

I answer. They are the following, which are included in the very definition of law, namely, it must be possible, honest, useful, just, permanent or stable, and promulgated. - Thus from the first part of the Decretum, dist. 4, can. 2.

1. Possible, that is, accommodated to the morals and circumstances of persons, etc.

2. Honest, that is, establishing nothing that is dishonorable, and repugnant to good morals or right reason or positive divine law; for law cannot bind to evil acts and those opposed to the ultimate end of man.

3. Useful for the common good, 1. because the good of the community is the essential and primary end of law; 2. because law is an act of public power, which has been instituted for the common good alone.

4. Just, that is, according to the norm of distributive justice, so that some are not burdened more than the rest, but it is imposed on subjects with equality of proportion, considering their strength and faculties: otherwise it does not oblige in conscience.

5. Permanent, or stable, that is, established without a definite time, so that once made, unless it is abrogated, or becomes harmful or useless, it lasts as long as the community on which it is imposed stands, or as long as the circumstances for which it was made persevere.

6. Promulgated, because law is a general and public rule of actions, directing and obliging the community. But a rule cannot direct and oblige the community which it rules, unless it has been applied to it through promulgation.

83. • A legislator is called a Superior in whom there is either independent and supreme, or subordinated, power of making laws for a community over which he has jurisdiction.

Principles. - I. God alone is the supreme and universal legislator, from whom necessarily the other legislators, whoever they may be, receive all their power, whether immediately or mediately. For God is the supreme and essential rule of any order whatever, and he alone enjoys supreme dominion over rational creatures, of whom he is the principle and ultimate end. - It is also clear from Scripture: By me kings reign, and lawgivers decree just things; by me princes rule, and the powerful decree justice. Prov. 8. 15, 16. - There is no power except from God. Rom. 13. 4.

II. The Church has the power of establishing laws which conduce to obtaining the end proposed to her ¹.

¹ It will happen to be most useful to have read on this argument the excellent little work whose title is Institutions of Ecclesiastical Law, by Camillus Tarquini of the Society of Jesus, professor of Canon Law in the Roman College, Rome 1862, and again 1868.

It is clear 1. from Sacred Scripture. For thus Christ says to Peter, Matt. 16. 19: Whatever thou shalt bind upon earth shall be bound also in heaven, etc. - And Luke 10. 16: He who hears you, hears me; and he who despises you, despises me; but he who despises me, despises him who sent me. - Likewise Acts 15. 28: It has seemed good to the Holy Spirit and to us to impose no further burden upon you than these necessary things, that you abstain from things sacrificed to idols, and from blood, and from what is strangled. Moreover the words: Whatever thou shalt bind... he who hears you, hears me... to impose upon you... signify the power conferred on the Church of binding or of establishing laws.

It is clear 2. from reason. For the Church is a perfect society in her own kind. Therefore she must enjoy the power readily available and necessary for her proper governance. But the Church could not provide for her own governance unless she had the faculty of establishing laws; for there are many abuses to be repressed among the faithful, and many things to be established for promoting or preserving the worship of God, and for procuring the salvation of souls. Therefore...

It is clear 3. from tradition and the constant practice of the Church, or from various apostolic Constitutions and Councils, by which disciplinary statutes were established.

84. • III. Secular Princes can establish laws which conduce to the end of temporal happiness.

It is clear 1. from Sacred Scripture, Prov. 8. 15: By me kings reign, and lawgivers decree just things... as above in the first principle. And 1 Pet. 2. 13: Be subject, whether to the king as excelling, or to governors as sent by him.

It is clear 2. from reason: for Princes have from God the power of ruling subjects, as was said above; but they could not exercise this power unless they enjoyed the faculty of establishing laws. Therefore, etc.

IV. Legitimate Superiors commanding something by a just law must always be obeyed, whether you think they received authority immediately from God, or through the people. - The reason is that in each sentence they are equally set over society to be governed by God, and therefore they possess authority received from him. Hence in practice the controversy whether secular Princes have power from God mediately or immediately is of no moment.

But the law must be considered just whenever its injustice is not commonly clear among learned and upright men; because right order requires that in doubt the presumption favor the Superior.

85. Questions. - QUESTION 1. Who in the Church have the faculty of establishing laws?

I answer. The Pope, a general Council, Bishops, and particular Councils.

1. The Pope, or Roman Pontiff, for the whole Church. For to him it was said in the person of Peter: Feed my lambs, feed my sheep. John 21. 15 and 16. But the word to feed signifies the same as to govern and rule. - Add the words of Matt. 16. 19 reported above: Whatever thou shalt bind, etc. For the Pope is the true successor of Peter in the Roman chair; he is therefore the Supreme Pontiff, the Supreme Key-bearer, Pastor of Pastors, the Vicar of Christ on earth.

2. A general Council likewise for the whole Church. For a general Council juridically represents ² the whole teaching and ruling Church; therefore it can establish laws for the whole Church. Nevertheless a general Council can do nothing unless the Supreme Pontiff, either through himself or through Legates, presides over it and confirms its decrees. For the Church, when the head or Pope is absent, cannot be represented.

² To represent here is to set present, not however to act in some way in the place of another by an office committed; which heretical sense was proper to the Jansenists.

3. Bishops for the diocese. For this is necessary for the right administration of the diocese. It is also clear from that text, Acts 20. 28: The Holy Spirit has placed you Bishops to rule the Church of God. But the Bishop receives this right in his canonical institution. Moreover a Bishop can do nothing concerning the law of the Supreme Pontiff, since an inferior does not have jurisdiction over a superior. Nor therefore can he establish anything that is opposed to the common law or weakens it. - The statutes of a Bishop, even those made and promulgated outside a Synod (with the counsel of the Chapter nevertheless having been heard), according to the truer sentence have the same perpetuity as synodal Constitutions. - Thus Benedict XIV, On the Diocesan Synod, book XIII, ch. 5, no. 1 ³. - But Archbishops and Patriarchs cannot make laws for the dioceses of suffragans, because they are not Superiors properly so called, although they can settle their lawsuits brought before them.

³ On this matter perhaps Scavini says it better thus (Moral Theology, tr. 2, ch. 1, q. 2, in note): By common usage it has been introduced that ordinances of Bishops given outside a Synod, unless the Bishops themselves expressly declare otherwise, are then only to be had as true laws when they bind all diocesan persons, both clerics and laics; otherwise they are reputed only as precepts. I said outside a Synod; for ordinances which have been established in a Synod are had as true laws by themselves going to endure perpetually, even if they regard only one group of subjects, since they are contained in the legislative code. I said unless the Bishops expressly declare otherwise; for it is always free to them even outside a Synod to establish laws for each group only. But if this is not clearly established, they are held not as laws, but as precepts from common custom. But against these things those things which Lambertini discusses in the place cited by the Author do not have much strength.

4. Particular Councils for the province. For if Bishops taken separately are able to establish laws for dioceses, similarly also in a Council, whether national or provincial, they can constitute laws for a nation or province. Nevertheless the decrees of these Councils must be sent to the Sacred Congregation of the Council of Trent so that they may be recognized. Thus from the ancient law confirmed by Sixtus V in the Bull Immensa aeterni, where it is said of the Sacred Congregation of the Council: But of provincial Councils, wherever on earth they may be celebrated, it will command that the decrees be sent to it, and it will examine and recognize each one. It is also clear from Benedict XIV, On the Diocesan Synod, book XIII, ch. 3, where he has these things: Sixtus V commanded that these decrees, before they are promulgated, be transmitted to the sacred Congregation of the Council, not indeed so that afterward they may receive confirmation from the Apostolic See, but so that they may be corrected, if perhaps anything either too rigid or less congruent with reason is detected in them. Yet it has happened more than once that provincial Councils are not only recognized by the sacred Congregation of the Council and, if there is need, amended, but also confirmed by the Supreme Pontiff, when the Metropolitans by whom they were celebrated request it, through apostolic letters. But the confirmation of Synods by the Apostolic See can be made in two ways, to be carefully distinguished: in common form, or in specific form. - See Benedict XIV, On the Diocesan Synod, book XIII, ch. 5, no. 11 ⁴; and book XII, ch. 5, no. 13. Yet neither transmission to the Sacred Congregation of the Council, and much less confirmation by the Apostolic See, are necessary for the statutes of a diocesan Synod. - Benedict XIV, ibid., book XII, ch. 3, no. 6.

⁴ Statutes are said to be confirmed in common form when they are not examined one by one, nor approved by the Pontiff motu proprio and from certain knowledge... and such a confirmation gives them nothing of new right or efficacy.

A confirmation is said to be made in specific form when cognition of the cause is premised, and the individual statutes are diligently weighed, and then, with no condition added, by Apostolic authority with the clause motu proprio and from certain knowledge, they are confirmed.... A statute confirmed in specific form, since it has put on the nature of pontifical law, no one of inferiors is permitted to derogate from it; indeed from this confirmation it receives such strength that it prevails over common law, to which otherwise it may be contrary. Thus Benedict XIV, On the Synod, books and chapters cited by the Author.

86. • QUESTION 2. Whether the Cathedral Chapter, while the See is vacant, Prelates of Regulars, and Abbesses, or Superioresses of Nuns, can establish laws?

206. Human acts cannot tend toward the ultimate end unless they are conformable to the norm of morality, which, from what was said above, n. 25, is twofold, namely God, the supreme good and ultimate end, and the rational nature of man. The former is now to be treated. God is the ultimate norm of morality; for He infallibly sees what is good and how human actions can be ordered to the ultimate end; moreover, by force of His supreme dominion, He commands whatever He judges necessary for the attainment of our end. But this ordination is manifested to us through laws, by which the divine mind and will are signified. Now, among laws, some are divine, because they emanate directly and immediately from the divine will, but others are human, because they emanate directly from human authority, whether ecclesiastical or civil. Nevertheless even human laws, when they are just, proceed mediately from God, since God Himself has handed over to legitimate superiors the power of making laws: "For there is no power except from God."¹ - From this it follows that human acts ought to be conformable to laws, that they may lead us to the ultimate end. - Therefore we shall speak:

¹ Rom., XIII, 1.

I. Concerning the concept of law in general;

II. Concerning divine law;

III. Concerning human ecclesiastical law;

IV. Concerning human civil law.

207. 1. Law is defined by St. Thomas as "a certain ordination of reason for the common good, promulgated by him who has care of the community."

¹ St. Thomas, Ia IIae, q. 90-93; Suarez, De Legibus, lib. I and lib. II, c. 1-4; Salmanticenses, Tr. XI, De Legibus, c. 1; Billuart, De Legibus, diss. I-II; Bouquillon, n. 53-64; Haine, t. I, De Legibus, q. 1-4; Ball. P., I, n. 236-239; Bautain, Philosophie des Lois, Paris, 1860, ch. I-II; Didiot, n. 588-607; Farges, op. cit., p. 252-265.

It is said: (a) ordination, or norm or rule, by force of which the acts of subjects are ordered to the due end; (b) of reason, because it pertains to reason to know the end and the means proportioned for attaining this end; yet the will accedes to reason, for commanding what reason has judged equitable; from this it is clear that a norm which is not just cannot truly be called a law, because it is not an ordination of reason. (c) For the common good, and consequently not for evil: for then it would not be an ordination nor law, but tyrannical oppression; for the common good, not however for the particular good of some private person or of some members of society: otherwise it would be a precept, not a law. This good can indeed be spiritual, or temporal, or both, and it tends at least mediately and implicitly to the ultimate end. (d) By him who has care of the community: for not just anyone can command such an ordination authentically, but only he who presides over the community, that is, God Himself, and those to whom God has entrusted the power of ruling society. (e) Promulgated, or authentically published and imposed by the Prince, or in his name and authority; for in order that a rule can be useful, it must be applied to the subject; but it cannot be applied unless it is known, and knowledge occurs through promulgation.

2. This definition is deservedly held as masterly. Yet in it the obligation which law imposes is not explicitly declared, because the holy Doctor had already established earlier (a. 1) that law is a rule which obliges to acting. Therefore the definition can easily be completed with these words: "and obliging subjects to doing or omitting something." And thus law is distinguished from counsel.

208. According to St. Thomas,² law imposes obligation in a fourfold way, namely by commanding, forbidding, permitting, punishing: for it commands certain acts of virtues; prohibits evil acts; permits those which are indifferent, and from this permission there follows the obligation of not impeding others from performing those acts; punishes transgressors of the law, and therefore imposes on judges the obligation of inflicting punishment, and on subjects the obligation of undergoing punishment; sometimes it also irritates an act, rendering it invalid, in order more efficaciously to prohibit the same.

² St. Thomas, Ia IIae, q. 92, a. 2.

209. A particular precept differs from law: (a) by reason of the subject upon whom the obligation is imposed: for a precept is imposed on one or more private persons, on account of a particular good; law on the whole society or community, and indeed for the common good. (b) By reason of the author: for making a law public authority and jurisdiction over some community are required; for a precept private authority suffices, for example the authority of parents over children, of a husband over a wife, of a master over servants. (c) By reason of duration: a precept, since it is enjoined for the good of private persons, perishes with the death of those upon whom it has been imposed, and therefore is not of itself perpetual; while law, which is made for the good of society, by its nature is born to endure; it can indeed be abrogated, but of itself it does not perish by the death of the legislator or of the first subjects: it endures as long as it has not been explicitly or implicitly revoked. Therefore if the legislator restricts the effect of the law to a determinate time, it is not properly a law, but a precept. (d) By reason of place: since law is given to a community, it directly affects the territory, and consequently does not oblige subjects who are legitimately outside the territory; but a precept, since it is directed to subjects, directly affects them and obliges them, even if they go out from the limits of the Prince's territory: it is something personal, and adheres to persons wherever they go.

It must be noted, however, that sometimes, among authors, the names law, precept, or statute are taken indiscriminately, so that the sense can be determined only from the context and various adjuncts.

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.

212. Divine law is twofold: natural, which is founded in the very nature of things, is necessarily enacted by God, and is promulgated in human conscience; positive, which is freely enacted by God and is promulgated in various external modes. Each must be discussed separately.

Here we hand down only the more general matters, since the various precepts of the natural law must be explained in the course of the work. Therefore we shall speak: 1. concerning the concept and existence of the natural law; 2. concerning its object and character; 3. concerning its promulgation and knowledge.

¹ St. Thomas, Ia IIae, q. 94; Suarez, De Legibus, lib. II, c. 5-17; Gonet, Clypeus Theol. thomisticae, tr. VI, disp. 3; Billuart, diss. II, art. 2-4; Muller, t. I, § 30-35; Meyer, t. I, n. 242-286; Bouquillon, n. 65-81; Noldin, n. 91-95; Bautain, op. cit., ch. 3-6, p. 46-129; Didiot, op. cit., n. 736-760.

213. (A) Notion. (a) Natural law, according to St. Thomas,² "is nothing other than the participation of the eternal law in the rational creature." For God from eternity knows and ordains whatever is consonant with the nature of each being, and that ordination, from what was said above, n. 210, is called the eternal law. But in time He created rational creatures, and manifested this eternal law to them. Now natural law is nothing other than the manifestation or promulgation of the eternal law in the conscience of the rational creature. Therefore it can be defined: the divine ordination of the rational creature to the ultimate end, founded in nature itself, and perceived by the natural light.

² St. Thomas, Ia IIae, q. 91, a. 2.

It is called natural for a twofold reason: namely because it embraces only precepts which are founded in the very nature of things, and moreover because it is known by the natural light. Thus it is distinguished from the positive law of God, which concerns things necessary for attaining the ultimate end, not of themselves, but from the will of God, and becomes known only by revelation.

Therefore natural law commands all those things which by their nature are honorable and necessary for the ultimate end; but it prohibits all those things which by their nature are evil. Hence it is thus described by Augustine:¹ "The eternal law is the divine reason or the will of God, commanding that the natural order be preserved, forbidding that it be disturbed."

¹ St. Augustine, Contra Faustum, l. XXII, c. 27, P. L., XLII, 418.

214. (b) Consequently natural law is not the free will of God alone, as the Nominalists used to say: for actions are not good or evil because they are commanded or prohibited by God, but rather are commanded or prohibited because divine reason, which cannot be deceived, sees that they are good or evil (above, n. 22).

Nor is it the dictate of practical human reason, or the categorical imperative of the autonomous will; for human reason is not the rule obliging, but only exhibiting and manifesting obligation (above, n. 26); and the human will is not autonomous, but essentially depends upon God.

215. All those who acknowledge the existence and providence of God admit that some natural law exists in the sense explained above; but atheists, positivists, and evolutionists reject it, whose systems we have already explained, n. 34-42. - Traditionalists indeed admit the existence of the natural law, but they assert that, in the present state of fallen man, it becomes known to us only by the supernatural light of faith or tradition.

Thesis: A moral law must be acknowledged which deservedly is called natural, because it is inserted into nature by God, and can be known by the natural light of reason, at least as to its primary principles. - It is of faith that the natural law exists, since the ordinary magisterium of the Church clearly teaches this; it is certain that this law can be known naturally.

216. (A) It is proved by authority. St. Paul, after he had reproved the Jews who, notwithstanding the positive law of God, had sinned gravely, writes concerning the Gentiles, who had not received revelation: "For when the Gentiles, who have not the law [the Mosaic law], do naturally those things which are of the law, these, not having the law, are a law to themselves: who show the work of the law written in their hearts, their conscience bearing witness to them, and their thoughts between themselves accusing, or also defending one another, in the day when God shall judge the hidden things of men, according to my gospel, by Jesus Christ."¹ Now (a) there it is declared that the Gentiles, who lacked the Mosaic law, nevertheless observed certain precepts of the natural law, because, namely, this kind of law was written in their hearts, and conscience, reproving evil and approving good, urged its observance; and this law was not merely human, but divine, since according to it God will judge the Gentiles. (b) Moreover, the Apostle in no way teaches that this law was known by tradition, but by natural reason, since it is written in the heart and is confirmed by the testimony of conscience.

¹ Rom., II, 14-16. - That this text is to be understood of pagans we proved in De Gratia, n. 35, note 10.

217. The Fathers confirmed this doctrine of Paul; thus Tertullian says:² "Therefore do you seek the law of God? You have that common one in the public place of the world, in the natural tablets, to which also the Apostle is wont to appeal... when, in saying to the Romans that the nations by nature do those things which are of the law, he suggests both natural law and legal nature." - The same Fathers likewise teach that this law is inscribed in hearts by the finger of God, innate, inserted, implanted, and therefore known naturally by human understanding; thus St. Ambrose:³ "Therefore that law is not written, but is born within; nor is it received by any reading, but is expressed in each one by a certain flowing fountain of nature." Nor otherwise Chrysostom:⁴ "From the beginning, forming man, God placed the natural law within him. And what, finally, is the natural law? He impressed conscience upon us, and willed the knowledge of good things and of contrary things to have been implanted by nature." - Leo XIII briefly sums this up: "Such is the chief of all, the natural law, which is written and engraved in the souls of individual men, because it is human reason itself commanding right action and forbidding sin."⁵

² Tertullian, De corona, VI, apud Migne, P. L., II, 83.

³ St. Ambrose, Epist. 73, n. 3, Migne, P. L., XVI, 1251.

⁴ St. Chrysostom, homil. XII, de statuis, Migne, P. G., XLIX, 131.

⁵ Encycl. Praestantissimum, 20 Jun. 1888.

218. (B) The same is established psychologically and historically. (a) By the intimate testimony of conscience we know that certain actions are good of themselves, and others depraved (above, n. 22), - that the latter are to be avoided, but the former to be done, at least those which are apprehended as necessary and as commanded by supreme authority, - so that he who obeys this command obtains peace of soul, while he who transgresses the same is disturbed by the goads of conscience. Now all these things suppose that some natural law exists, promulgated in each one's conscience, which we are bound to obey, and indeed a universal and absolute law: for this authoritatively commands the fulfillment of certain duties for all and unconditionally, independently of any civil law.¹

¹ J. Simon, Le Devoir, 3e p., ch. 1, p. 233-262.

(b) The intimate experience of each person is confirmed in no small degree by the unanimous consent of peoples, who, although they think differently concerning some moral precepts, nevertheless agree in admitting a moral distinction between good and evil; - they hold that there is some law which arises not from kings, nor from the decrees of the people or senate, but from nature itself or from the divine power; - that violators of it are vexed by anxieties, even when they can avoid human punishments; - and that from it other laws draw their force, so that they ought to be conformable to it.

219. Thus, among the Greeks, Sophocles commends the natural law in this way:² "Would that fortune be present to me for attaining the holy integrity of all words and works, concerning which sublime laws have been set forth, born in the heavenly ether, of which Olympus alone is father, and the mortal race did not beget them, nor indeed will oblivion ever lull them to sleep: in these there is a great God, and He does not wither with age." Among the Latins, let Cicero be heard:³ "I see that this was the judgment of the wisest men, that law was neither devised by the talents of men, nor is it some decree of peoples, but something eternal, which rules the whole world by the wisdom of commanding and forbidding... But it arose together with the divine mind. Wherefore true and chief law, apt for commanding and forbidding, is the right reason of supreme Jove." Among the Chinese likewise a universal rule of morals is admitted, which rules heaven and earth, and is read as inscribed in the heart of all.⁴ Similar things are found among various nations, even barbarous ones.⁵

² Sophocles, Oedip., v. 863-871; cf. Antigon., v. 446-460. Similar things may be seen apud Plato, Respub., l. IV, p. 427, ed. Stephan.

³ Cicero, De Legibus, II, 4. Cf. Pro Milone, IV, 10; Philipp., XI, c. 12, n. 28; likewise the fragment preserved apud Lactantius should be read, Instit. VI, 8, Migne, P. L., VI, 660-661.

⁴ "The rule of moral conduct of man is the law of all intelligences; it illumines the universe in the highest heavens, as in the deepest abysses. The rule of moral conduct of the wise man has its principle in the heart of all men, whence it rises to its highest manifestation, to enlighten heaven and earth with its brilliant rays." (Apud J. L. De Lanessan, La Morale des Philosophes Chinois, Paris, Alcan, 1896, p. 44-45.)

⁵ Cf. Quatrefages, L'unité de l'espèce humaine; L'espèce humaine, Paris, Alcan; Carbonnelle, L'aveuglement scientifique, in period. Revue des Quest. scientif., VII, 193.

220. (C) Reason supports this. For once the creation of man is posited, natural law already becomes necessary. For God, the most wise creator and orderer of all things, must direct all beings to the end for which they were destined by Him. But no directive principle is suitable for beings endowed with liberty except a moral rule. Beings which lack liberty tend to their end by a certain necessary instinct divinely impressed; but man, since he is free, tends to his end only freely; and therefore he must not be led by a blind and necessary impulse, but by a moral rule which shows him the way to be followed, without taking away his free will. But this rule, common to all, can be nothing other than a certain participation or manifestation of the eternal law, or, in other words, the natural law.

Once the existence of the natural law has been proved, it is useful to describe its object and character.

221. In a general way the natural law embraces those things which are so fitting or repugnant to rational nature that they ought to be commanded or prohibited by the Author of nature.

(A) Now, with respect to the logical nexus by which they are connected with one another, the precepts of the natural law are of three kinds: -

(a) Some indeed are most universal, so that the rest flow from them; such are these and similar ones: good is to be pursued and evil avoided; the supreme good is to be loved; what you do not wish to be done to you, do not do to another; live conformably to right reason.

222. Among philosophers and theologians it is asked what is the supreme principle from which the rest flow logically. St. Thomas asserts that it is this: good is to be done and evil avoided.¹ According to others: Live conformably to human nature, considered according to all its essential relations.² Berti proposes this, according to the mind of St. Augustine: Love God as the end and the rest on account of Him.³ Others prefer this formula: Exhibit also by free actions the image of God, absolutely holy, impressed upon you by way of rational nature.⁴ Meyer proposes this: Preserve the right order of rational nature as divinely holy.¹

¹ St. Thomas, Ia IIae, q. 94, a. 2.

² Thus not a few Scholastics.

³ Berti, Theolog. discipl., lib. XX, c. 4, prop. 3.

⁴ Carl Aeger, Moralphilosophie, 1873, S. c. 63 ff.

¹ Meyer, op. cit., n. 284.

Of these, the formula of St. Thomas is the simplest and most clearly intelligible; the last, although not so clearly intelligible, seems more complete and scientific; the Augustinian one is in itself most perfect, but in the order of knowledge it is not first, nor explicitly known to all. In any case all agree substantially as to the sense.

223. (b) In the second place come those precepts which are deduced from universal principles by an immediate and easy discourse; for example, honor your father and mother, you shall not steal, you shall not kill, and the rest contained in the Decalogue, if one excepts the sanctification of the Sabbath day, which is a positive law.

(c) In the third place proceed those precepts which are deduced from the first principles remotely and only by diligent study and more difficult discourse; for example, an injury inflicted on someone, in a well-ordered society, is not to be avenged by one's own authority. Since precepts of this kind are not easily known by all, they are often proposed more clearly and certainly by positive law.

224. (B) With respect to necessity, the precepts of the natural law are some primary and others secondary: the former are so necessary for the particular or social good that, without them, the moral order is impossible; thus blasphemy, the unjust killing of an innocent man, false testimony, etc., are opposed to primary natural right. - But secondary precepts are those which are very useful for the particular or social good, but not necessary, so that the moral order can subsist without them, although less perfectly; thus polygamy and divorce are opposed to secondary natural right.

225. (C) By reason of the object about which they are concerned, natural precepts regard: (a) God, who is to be worshiped and loved; (b) our neighbor, to whom reverence, justice, and charity are owed; (c) ourselves, insofar as we ought to subject the sensitive faculties to reason, and reason to God.

226. The natural law is universal, immutable, and non-dispensable; the reason is because it flows not from the positive will of God, but from the very nature of things. This, however, needs declaration.

(A) The natural law is universal, insofar as it binds all those who enjoy the use of reason; for, on the one hand, it is promulgated in the conscience of each rational being, and on the other it is enacted for every rational creature.

It is asked, however, whether it also reaches infants and the insane. The controversy had concerning this matter can be reconciled in this way: the natural law of itself affects them, insofar as they are radically and potentially rational; but it does not oblige them morally, under penalty of sin:¹ for only those are capable of moral obligation and imputability who enjoy the use of reason.

¹ Adults, however, using reason, sin when they impel them to act against the natural law.

227. (B) The natural law is immutable, in the sense that it cannot be changed in itself, although it admits some changes in its application.

(a) Indeed, it cannot be changed in itself: for it is founded in the very nature of the rational being, considered in its relations with the ultimate end; but the nature of things and their relations to the ultimate end always remain the same. - Yet in order rightly to understand immutability of this kind, we must consider the natural law not in some abstract and insufficiently determined principle, but with all the adjuncts which constitute morality. Thus homicide is prohibited by natural right, and nevertheless there are many cases in which it is licit to kill others. But to one attending even a little, it is clear that not every homicide is prohibited, but only unjust killing, or the killing of an innocent man by private authority, without necessity; consequently, when an unjust aggressor is killed, or a criminal is condemned to death, the natural law is not changed, since it in no way prohibits the legitimate defense of oneself or of society: the circumstances, the adjuncts, are changed; the law itself remains the same.

This is true also of secondary precepts; take, for example, polygamy, which is opposed to secondary natural right, and yet flourished among some Patriarchs; the law itself suffered no change in itself; for at every time it was contrary to the secondary ends of marriage, especially to the peace of families; but, since it did not hinder the primary end of marriage, namely the procreation and education of offspring, it could be permitted or tolerated, with means employed by which abuses would be prevented.¹

¹ Some older scholastics wrote that the natural law can be changed as to the more remote conclusions; they bring the example of a deposit, which by natural right ought to be returned, and nevertheless sometimes cannot be returned, because, for example, it is foreseen that the owner will use the deposited sword to kill an enemy. - But in a case of this kind there is no change of the natural law; for the law does not establish that a deposit is to be returned in every case, but forbids it to be returned at that time when the owner is going to abuse his own thing.

(b) But in its application it suffers some changes, when secondary precepts are in question. Thus God tolerated, under certain conditions, polygamy and divorce; for in those things which are not absolutely necessary, but only very useful, it can happen that, circumstances having changed, the application of the law, even if very useful, is not urged; for example, among the Jews divorce was tolerated, in order to avoid worse abuses, namely adultery or the killing of a spouse; but divorce of itself remained contrary to the perfect equality of the contract, to the best education of offspring, to the peace of families, etc.

228. (C) The natural law is not properly dispensable; and indeed, if God Himself does not change the natural law, no one on earth, not even the vicar of Christ himself, can dispense in this law.² The Church, however, can declare and interpret it, and that infallibly; for she received from Christ the power of teaching, and consequently of explaining and interpreting divine laws, by defining whether in these or those adjuncts they truly oblige. Thus the indissolubility of marriage pertains to secondary natural right; but the Church, by long-standing practice, has implicitly declared that this indissolubility does not belong to a marriage simply ratified.

² Likewise some older theologians said that some dispensation can be admitted in secondary natural law; they bring the example of the permission given to the Hebrews to carry off the goods of the Egyptians; but from this nothing can be inferred as to the thesis set forth: for since God is the supreme lord of all goods, He could transfer the ownership of certain goods from the Egyptians to the Hebrews, on account of the reason of the public good, or by way of compensation for the labors furnished.

229. The natural law certainly obliges all rational creatures as soon as it has been sufficiently promulgated in their conscience: for it is nothing other than the manifestation of divine reason and will, which all must obey.

(A) Now, on God's part, for sufficient promulgation two things are required and suffice: (a) that the most universal principles of the law can easily be known by him who enjoys the use of reason; (b) that from these, through natural means, internal and external, individual and social, those practical conclusions can be deduced which are necessary for the right institution of life. It is in no way required that all men be able to acquire these notions for themselves with equal facility, or know individual conclusions without admixture of error; for this would contradict the natural inequality and infirmity of men. Therefore it suffices that those who enjoy lesser ability can learn from those who are endowed with a more powerful mind the truths necessary for living rightly.

As to the fact, man is indeed physically capable, by his own powers, of knowing the natural law; but, as the Vatican says,¹ "it is to be attributed to divine revelation that those things which in divine matters are not of themselves inaccessible to human reason, in the present condition also of the human race, can be known by all expeditiously, with firm certitude, and with no admixture of error." - If man had remained in the state of pure nature, God would have furnished men, by a special natural concurrence, the means for knowing the natural law more expeditiously.

¹ Vatican, sess. III, cap. 2, de Revelatione; we explained this decree in Tr. de Vera Relig., n. 50.

230. (B) But on man's part, certain things are necessary for attaining knowledge of natural right: (a) positive means, namely one's own study of the truth, recourse to wiser men in more difficult matters, prayer to God, who is the Father of lights; for right reason suggests all these things; (b) negative means, or the removal of impediments, the chief of which are levity of mind and want of reflection, prejudices, depraved customs which cloud the mind, and evil counsels received from others.

If, notwithstanding those means seriously employed, knowledge of some natural precept could not be acquired morally, the ignorance is invincible; otherwise it is called vincible, according to what was explained above, n. 91-92.

231. From this it can be understood what sort of ignorance can be admitted concerning the precepts of natural right.

(A) The first and most universal principles of the natural law cannot be invincibly unknown by an adult who is fully in possession of reason. For these principles stand to practical reason as the first principles of demonstrations stand to speculative reason: both are per se known; thus no one in possession of himself can be ignorant that good is to be done and evil avoided.

232. (B) Particular precepts, which are deduced immediately and clearly from the first principles, cannot be invincibly unknown for a long time by one who uses suitably developed reason. Such are: honor your father, do not kill an innocent man, do not steal, etc. For these, since they flow from known principles by an obvious and easy inference, cannot be unknown for long by one whose reason has been sufficiently cultivated. It can indeed happen that, by prejudices imbued from infancy, by depraved persuasions and examples, and also by evil habits, the mind is clouded for some time; but, when someone in good faith pursues the truth, and thinks seriously about the rule of morals, at least a doubt arises concerning the liceity of acts contrary to these natural precepts; but doubt produces the obligation of inquiring further about the truth, and God does not deny the help of illumination to those who inquire. But if the search for truth is omitted, the ignorance is not without fault: and the gravity of this is judged from what was said, n. 95-97.

233. (C) Remote conclusions of the natural law can be invincibly unknown even by one who uses suitably developed reason. For conclusions of this kind can be known only after diligent study has been premised, and with great difficulty; wherefore they are not rarely unknown by those who cannot diligently devote themselves to the study of truth, whether because of weakness of mind, or because of lack of time, or the necessity of attending to other matters. Moreover, in the more remote conclusions of the natural law, there is often some obscurity and uncertainty: for the more we recede from first principles, the more frequent is the danger of erring or at least of doubting. Hence among theologians themselves it is often disputed whether this or that precept pertains to natural right; thus, for example, Scotus taught that the precepts of the second table are not of natural right,¹ while most others hold otherwise; it is disputed whether there is a natural obligation of referring all acts to God, whether every lie is evil per se, etc.; what wonder, therefore, if the unlearned are ignorant of many other things?

¹ Scotus, in III Sentent., dist. 37.

In fact confessors, who have frequented the sacred tribunal, know very well that certain penitents labor under the greatest ignorance concerning the more remote conclusions of the natural law, for example concerning the malice of internal acts,² or even of an officious lie, of perjury for preserving life,³ of certain acts against chastity,⁴ etc. - Therefore penitents are to be questioned prudently, treated benignly when they are in ignorance, - and instructed discreetly.

² Cf. Lacroix, lib. I, n. 135; St. Alphonsus, De conscientia, n. 9.

³ Sanchez, De praeceptis Decal., lib. I, c. 16, n. 33.

⁴ St. Thomas, Quaest. disp., de malo, q. 3, a. 8, thinks it can happen that someone invincibly does not know the prohibition of fornication. Cf. Ball. P., I, n. 48.

234. Since perfect knowledge of the natural law, without admixture of error, is very difficult for the human race, some clear and positive declaration of this law through revelation becomes useful. Indeed, granted that man was elevated to the supernatural state, it is necessary that he be directed to the supernatural end through positive divine law: for means ought to be proportioned to the end. - In fact God, through revelation made to men, promulgated certain precepts of natural right, and also precepts imposed by His positive will. In that revelation a threefold stage is usually distinguished: the primeval law, manifested to the first parents and patriarchs, and therefore destined for the whole human race; the old law, or Mosaic law, manifested through Moses to the Israelite people; the new law, or Christian law, promulgated by the Incarnate Word, or Christ, for the whole human race. - Nothing special occurs here to be said concerning the primeval law, since very few things are known concerning it; wherefore the old and the new law must be briefly discussed.

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.

In the old law are contained moral, ceremonial, and judicial precepts. -

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.

1. The objective norm of morality, i. e., the rule by which men must regulate their conduct, is the will of God as manifested through nature and Revelation.

"The measure or rule of the human will is twofold, one proximate and homogeneous to the will itself, namely human reason; the other is the first rule, namely, the eternal law, which is as it were the reason of God."¹

¹ St. Thomas, Summa Theol., 1a 2ae, qu. 71, art. 6: "The rule of the human will is twofold: one proximate and homogeneous, namely human reason itself; the other is the first rule, namely the eternal law, which is as it were the reason of God." (Rickaby's tr.).

Whenever an act proceeds to the end according to the order of reason and of the eternal law, the act is right; when it swerves from this rectitude, it is wrong, i. e., a sin.²

² Summa Theol., 1a 2ae, qu. 21, art. 1: "In matters done through the will, the proximate rule is human reason, while the supreme rule is the eternal law. ... Every voluntary act is evil insofar as it departs from the order of reason and of the eternal law, and every good act agrees with reason and the eternal law."

Law, therefore, is but another name for the divine will recognized as the standard of human conduct.³ In a narrower sense law may be defined as "an ordinance of reason for the general good, promulgated by him who has the care of the community." ⁴ 2. The source and measure of all law, physical, spiritual, and ethical, is the lex aeterna, i. e., the intellect and will of God commanding men to observe the right order and forbidding its disturbance. ⁵ This divine law is promulgated in time (lex temporalis), (1) as the law of physical nature and (2) as the law of the moral order (lex moralis).

³ Summa Theol., 1a 2ae, qu. 90, art. 1: "Law is a certain rule and measure of acts, according to which someone is induced to act or restrained from acting. For law is named from binding, because it binds one to act." —On the derivation of the word lex from legere see Cicero, De Legibus, I, 19; St. Augustine, Quaest. in Heptateuch., III, qu. 20 (Migne, P. L., XXXIV, 681).

⁴ "Law is nothing other than an ordinance of reason for the common good, promulgated by him who has care of the community." (St. Thomas, Summa Theol., 1a 2ae, qu. 90, art. 4).

⁵ Cfr. St. Augustine, Contra Faust. Manich., XXII, c. 27 (Migne, P. L., XLII, 418).

The moral law is either natural, in as far as it is promulgated by the rational nature of man (lex moralis naturalis, ius naturae),⁶ or positive (lex moralis positiva), in so far as it is made known by supernatural Revelation.⁷

⁶ Deut. XXX, 11-14; Matth. VII, 12; Rom. II, 14-15.

⁷ Ps. CXLVII, 19; Heb. I, 1-2.

God also manifests His will through human laws, which are called ecclesiastical (leges ecclesiasticae s. canonicae) when made by the Church, or civil (leges civiles) when imposed by the authority of the State.

READINGS. —St. Thomas, Summa Theologica, 1a 2ae, qu. 90-108 (Rickaby, Aquinas Ethicus, Vol. I, pp. 264 sqq.). —E. Seydel, Das ewige Gesetz, Vienna 1902. —A. Janvier, Exposition de la Morale Catholique, Vol. VII, Paris 1909.—Thos. Slater, S.J., A Manual of Moral Theology, Vol. I, 5th ed., N. Y. 1925, pp. 81 sqq. —Jos. Rickaby, S.J., Moral Philosophy, new impression, London 1908, pp. 126 sqq.—Suarez, De Legibus, Vol. I, 12 and II, 6. —V. Cathrein, S.J., art. "Law" in the Catholic Encyclopedia, Vol. IX, pp. 53 sqq. —IDEM, Moralphilosophie, Vol. I, 4th ed., pp. 332 sqq. —Thos. Bouquillon, Theologia Fundamentalis, n. 52 sqq. —S. Schiffini, S.J., Philosophia Moralis, Turin 1891, Vol. I, pp. 104 sqq. —M. Cronin, The Science of Ethics, Vol. I, pp. 597 sqq. —A. Sweens, Theologia Moralis Fundamentalis, 2nd ed., Haaren 1910, pp. 120 sqq. —A. Tanquerey, S.S., Synopsis Theologiae Moralis, Vol. II, Tournai 1905, pp. 119 sqq. —E. Müller, Theol. Mor., Vol. I, 5th ed., pp. 120 sqq. —J. E. Ross, C. S. P., Christian Ethics, New York 1919, pp. 87 sqq. —A. Vermeersch, S.J., Theol. Mor., Vol. I, pp. 142 sqq.

1. DEFINITION. —By the moral law of nature (lex moralis naturalis) is understood the sum-total of those ethical precepts which God has implanted in the rational nature of man. It is that law which St. Paul says is "written in the hearts" of men,¹ in order to enable them to attain their natural destiny as free beings,² capable of doing right or wrong.

¹ Rom. II, 15. —Cfr. Pohle-Preuss, God: His Knowability, Essence, Attributes, pp. 18 sqq. —St. Augustine, De Div. Quaest., 83, qu. 33, 2: "The natural law has been, as it were, transcribed into the rational soul, so that in the conduct of this life and in earthly customs men may preserve images of such distributions." (Migne, P. L., XL, 36). —IDEM, Epist., CLVII (a/. 89), n. 15: "There is also a law in the reason of man, who uses the judgment of liberty, naturally written in the heart, by which it is suggested that each person should not do to another what he himself does not wish to suffer." (P. L., XXXIII, 681).

² Cfr. St. Thomas, Summa Theol., 1a 2ae, qu. 91, art. 2: "The natural law is nothing other than the participation of the eternal law in a rational creature." —Ibid., qu. 93, art. 1: "The eternal law is nothing other than the reason of divine wisdom insofar as it directs all acts and movements."

The moral law of nature is promulgated by reason.

The content or object of this law are the general conditions under which man lives as an ethical being, especially his relations to God, to himself, and to his fellowmen.³

³ Rom. I, 18-25; Tob. IV, 16; Matth. VII, 12.

Though present from the beginning, the moral law of nature at first manifests itself but vaguely in human reason, but with the growth of that faculty the concept of law and its obligatory force is more clearly and fully brought home to the individual.

2. EXISTENCE. —The existence of the moral law of nature can be proved from the Old and the New Testament.

It is of this natural law, above all others, that Jehovah says: "This commandment that I command thee this day is not above thee, nor far off from thee. Nor is it in heaven, that thou shouldst say: Which of us can go up to heaven to bring it unto us, and we may hear and fulfil it in work? Nor is it beyond the sea: that thou mayest excuse thyself, and say: Which of us can cross the sea, and bring it unto us: that we may hear, and do that which is commanded? But the word is very nigh unto thee, in thy mouth and in thy heart, that thou mayest do it." ⁴ More definite is the teaching of St. Paul, who says: "For when the gentiles, who have not the [positive divine] law, do by nature those things that are of the law; these having not the law [i. e., the positive law] are a law to themselves: who shew the work [i. e., substance] of the law written in their hearts, their conscience bearing witness to them, and their thoughts between themselves, accusing, or also defending one another." ⁵ Therefore, though the positive law of God had not been revealed to the gentiles, they knew and observed its essence in the Decalogue. The law was implanted in their very nature and revealed itself to them.

⁴ Deut. XXX, 1-14; cfr. Jer. XXI, 31-33; Wisd. IV, 20; Matth. VII, 12.

⁵ Rom. II, 14-15. —Cfr. Th. Simar, Theologie des hl. Paulus, 2nd ed., pp. 80 sqq.; J. Quirmbach, Die Lehre des hl. Paulus von der natürlichen Gotteserkenntnis und dem natürlichen Sittengesetz, Freiburg 1906, pp. 60 sqq.

The existence of the moral law of nature is attested by human consciousness. Cicero says that the natural law is co-eval with the divine intellect, and that all men are imbued with it.⁶ Ecclesiastical Tradition on the subject is so constant and uniform that there is no need of developing it.⁷

⁶ De Legibus, II, 4: "It arose together with the divine mind. Therefore the true and sovereign law, fitted for commanding and forbidding, is the right reason of supreme Jove." Cfr. Pro Milone, 10: "It is an unwritten, inborn law for which we were not taught but made, not instructed but imbued."

⁷ On the teaching of Clement of Alexandria and Origen see the monographs of W. Capitaine, Die Moral des Klemens v. Alexandrien, Paderborn 1903, pp. 225 sqq., and De Origenis Ethica, Münster 1898, pp. 76 sqq. —St. Ambrose says (De Abraham, II, c. 11, n. 98): "Let [the wise man] know nothing except to live according to nature, in whose institution and order is the law of God." (Migne, P. L., XIV, 500). —IDEM, De Fuga Saec., c. 3, n. 15: "The law is twofold, natural and written: the natural law in the heart, the written law on tablets." (P. L., XIV, 577). — IDEM, Epist., 73, n. 2-3: "The Apostle also teaches that there is a natural law in our hearts, for he wrote that often 'the Gentiles naturally do the things that are of the law,' and so forth. That law therefore is not written but is inborn; it is not acquired by any lesson, but is expressed in individuals from a certain overflowing fountain of nature and is drawn in by human minds. " (P. L., XVI, 1251). —On the teaching of St. Augustine, who treats of the natural law very exhaustively in different parts of his writings, see H. Oberrauch, De Lege Dei Aeterna ad Mentem S. Augustini, Innsbruck 1776, pp. 14 sqq. —The Catechism of the Council of Trent (III, c. 1, qu. 3) says: "There is no one who does not perceive that a law has been implanted in his soul by God." —Pius IX, in his Encyclical Letter of Aug. 10, 1863, declares: "The natural law has been engraved by God upon the hearts of all."

God Himself is the author of the moral law of nature. The organ of the natural revelation through which He promulgates it, is human reason.

Reason, therefore, is not the author of law.⁸ Reason is not autonomous; it cannot make laws independently of God,⁹ but is merely the organ through which the Supreme Lawgiver proclaims His will.¹⁰ It was in this sense that St. Augustine called the moral law of nature "the law of reason which not even iniquity itself is able to destroy."¹¹ u The sum-total of the ordinances contained in the moral law of nature is often called ''the natural law." ¹² The existence of a natural law in this sense is admitted by all Catholic philosophers and theologians. But there is a controversy regarding the question whether the natural law embodies practicable rules for all the social relations of men, binding them prior to and outside of positive, especially human, legislation.¹³

⁸ Cfr. St. Thomas, Summa Theol., 1a 2ae, qu. 91, art. 3, ad 2: "Human reason in itself is not the rule of morals, but the principles naturally implanted in it are certain general rules and measures of all the things that are to be done by man." — The Syllabus of Pius IX condemns the following assertion (prop. 3): "Human reason, without any regard whatever for God, is the sole arbiter of truth and falsehood, of good and evil; it is a law to itself and by its natural powers suffices to care for the good of men and peoples." (Denzinger-Bannwart, n. 1703).

⁹ Cfr. Deut. VI, 13; Matth. IV, 10; Luke XXII, 42; John IV, 34; VI, 36.

¹⁰ Cfr. Saint Thomas, Summa Theol., 1a 2ae, qu. 90, art. 4, ad 1: "The promulgation of the law of nature consists in this very fact: that God implanted it in human minds to be known."

¹¹ "Lex rationis, quam ne ipsa quidem delet iniquitas." Epist., 157 (al. 80), n. 18 (Migne, P. L., XXXIII, 683); cfr. Confess., II, c. 4 (P. L., XXXII, 678).

¹² Ius naturale.

¹³ Cfr. Theodore Meyer, S.J., Die Grundsätze der Sittlichkeit und des Rechts, Freiburg 1868, pp. 147 sqq.; V. Cathrein, S.J., Moralphilosophie, Vol. I, 4th ed., pp. 485 sqq.

READINGS. —Theodore Meyer, S.J., Institutiones Iuris Naturalis, Vol. I, 2nd ed., Freiburg 1906.—G. von Hertling, Kleine Schriften zur Zeitgeschichte und Politik, Freiburg 1897, pp. 168 sqq. —C. Gutberlet, Ethik und Naturrecht, 3rd ed., pp. 123 sqq. —Jos. Rickaby, S.J., Moral Philosophy, pp. 133 sqq. —J. Haring, Der Rechts- und Gesetzesbegriff, Graz 1899, pp. 25 sqq. —V. Cathrein, S.J., Recht, Naturrecht und positives Recht, Freiburg 1901, pp. 101 sqq. —IDEM, in the Catholic Encyclopedia, Vol. V, pp. 562 sq. —R. I. Holaind, S.J., Natural Law and Legal Practice, New York 1899, pp. 37 sqq. —M. Cronin, The Science of Ethics, Vol. I, pp. 607 sqq. —A. Tanquerey, S.S., Synopsis Theologiae Moralis, Vol. II, pp. 123 sqq. —A. Sweens, Theologia Moralis Fundamentalis, 2nd ed., pp. 139 sqq.

1. The natural law is universal, that is to say, it embraces all the actions of man.¹ Because of this universality it is the foundation and measure of all positive law, divine as well as human, ecclesiastical as well as civil.² No law is valid unless it conforms to the moral law of nature. Hence it is false to say that politicians and diplomats are bound by a different law than that which governs private life.

¹ Cfr. St. Thomas, Summa Theol., 1a 2ae, qu. 93, art. 1: "The eternal law is nothing other than the reason of divine wisdom insofar as it directs all acts and movements."

² Cfr. St. Thomas, Summa Theol., 1a 2ae, qu. 99, art. 2, ad 1: "Just as grace presupposes nature, so the divine law must presuppose the natural law." —Ibid., qu. 95, art. 2: "Every humanly established law has the character of law to the extent that it is derived from the law of nature. But if in anything it disagrees with the natural law, it will no longer be law, but a corruption of law." —F. Suarez, De Legibus, II, c. 9, n. 10: "Nature is the foundation both of grace and of every human law. The natural principles by which man ought to be governed in moral matters are so general that they virtually comprehend every obligation, so that none can be applied to man except through those principles." (Opera Omnia, V, 120).

The natural law, moreover, is universal because it binds all men. Its divine Author recognizes no "super-man." No human being is "beyond good and bad," as Nietzsche would have it, but all without exception are subject to the precepts of the moral law.³ Human nature is essentially the same in all men, and hence all are equal before the natural law without distinction of time, place, sex, or intellectual attainments. "The natural law" the Schoolmen were wont to say, "is one for all."⁴

³ Pius IX condemned the following propositions in his famous Syllabus (No. 56): "Moral laws do not need divine sanction, and it is by no means necessary that human laws conform to natural right or receive their binding force from God." No. 64: "Both the violation of any most sacred oath and any wicked and shameful action contrary to the eternal law is not only not to be condemned, but is altogether lawful and to be extolled with the highest praises when it is done for love of country." (Denzinger-Bannwart, numbers 1756 and 1764).

⁴ Cfr. Cicero, De Republica, III, 22: ''Nor will there be one law at Rome and another at Athens, one now and another later; rather, one eternal and immutable law will embrace all peoples at every time, and God will be, as it were, the one common master and ruler of all, the discoverer, judge, and giver of this law. Whoever does not obey Him will flee from himself and, having spurned human nature, will by this very fact pay the greatest penalties." — St. Thomas, Summa Theol., 1a 2ae, qu. 91, art. 5, ad 3: "The natural law directs man according to certain common precepts in which both the perfect and the imperfect agree, and therefore it is one for all. But the divine law also directs man in certain particular matters toward which the perfect and imperfect are not similarly disposed, and therefore the law had to be twofold." —On the foolish notion of the "superman" see W. Schneider, Göttliche Weltordnung, 2nd ed., pp. 165 sqq., 233 sqq.; F. Sawicki, Das Problem der Persönlichkeit und des Übermenschen, Paderborn 1909.

In view of the fact that the light of reason was darkened by the fall of our first parents, we must distinguish between primary and secondary precepts of the natural law.⁵ The knowledge of the former (prima et communissima principia), though often impaired by sin, cannot be effaced from the human conscience. Man may, however, through internal and external influences, so completely lose all knowledge of the secondary principles of the natural law (praecepta secundaria) that he is led to commit evil actions without being aware of their true character.⁶ Such actions are morally guiltless, which is but another way of saying that with regard to the secondary precepts of the natural law there may be what theologians call ignorantia invincibilis et inculpabilis. ⁷ Many writers distinguish three species of moral precepts:

⁵ Cfr. St. Thomas, Summa Theol., 1a 2ae, qu. 94, art. 6: "To the natural law belong first certain most general precepts known to all, and secondly certain more particular secondary precepts, which are as it were conclusions closely derived from the principles."

⁶ Cfr. Tertullian, De Anima, c. 41: "There is also in the soul that principal good, that divine and genuine good which is properly natural. For what is from God is not so much extinguished as overshadowed. It can be overshadowed because it is not God; it cannot be extinguished because it is from God." (Corpus Script. Eccles. Lat., Vol. XX, pp. 1, 368). —St. Augustine, Confess., II, c. 4: "The law written in the hearts of men, which not even iniquity itself erases." (Migne, P. L., XXXII, 678). —St. Thomas, Summa Theol., 1a 2ae, qu. 94, art. 6: "As regards those common principles, the natural law can in no way be erased from the hearts of men universally; it is nevertheless erased in a particular matter of action insofar as reason is prevented from applying the common principle to the particular action because of concupiscence or some other passion. As regards the other secondary precepts, however, the natural law can be erased from the hearts of men either because of evil persuasions—in the same way that errors concerning necessary conclusions also occur in speculative matters—or because of depraved customs and corrupt habits, as among some peoples robberies, or even vices contrary to nature, were not considered sins, as the Apostle also says." (Rom. I, 18-32).

⁷ Among the propositions condemned by Alexander VIII, Dec. 7, 1690, is the following (prop. 2): "Although invincible ignorance of the natural law be granted, in the state of fallen nature this ignorance does not of itself excuse the person acting from formal sin." (Denzinger-Bannwart, n. 1291). —On the theological controversy regarding the ignorantia invincibilis, cfr. K. Werner, Franz Suarez, Vol. I, pp. 354 sqq.

(1) First, highest, and most general precepts (praecepta primaria), as, "We must do good and avoid evil," "We must worship God," etc.; (2) Secondary precepts (praecepta secundaria), derived by direct deduction from the first, as: "We must not blaspheme," "We must not lie," etc.; (3) Remote precepts (praecepta remota), which are deducible from the first indirectly, by a process of logical reasoning, as: "It is wrong to practice usury," "Lost articles should be restored to their rightful owners," etc.

With regard to precepts of the second class (secundaria), persons intellectually undeveloped or unfamiliar with the common teaching of morality may occasionally err, though only for a time. The precepts of the third class are easily subject to invincible, and therefore guiltless, error.

It is impossible, however, to draw a hard and fast line between the precepts of the second and those of the third class. Some theologians (Scotus, Gerson, etc.) have held that the unity and indissolubility of marriage, the right of private property, and other important principles, cannot be deduced with certainty from the primary precepts of the natural law.⁸

⁸ Cfr. A. Stöckl, Geschichte der Philosophie des Mittelalters, Vol. II, pp. 852 sq.

2. With respect to its binding force, the moral law of nature is absolute or unchangeable, that is to say, it cannot be abrogated by positive divine or human law.⁹ Not even God can change it or dispense from its precepts. The reason is that, as He commands man absolutely through the voice of conscience to do good and avoid evil, it would be a contradiction were He to permit anyone to disobey that voice.¹⁰

⁹ Cfr. St. Thomas, Summa Theol., 1a 2ae, qu. 94, art. 5; V. Cathrein, S.J., Moralphilosophie, Vol. I, 4th ed., pp. 401 sqq.

¹⁰ Cfr. St. Thomas, Summa Theol., 1a 2ae, qu. 100, art. 8, ad 2: "The Apostle says (2 Tim. II, 13): 'God remains faithful; He cannot deny Himself.' But He would deny Himself if He removed the order of His justice, since He Himself is His justice. And therefore God cannot dispense in this matter so that it would be lawful for man not to be rightly ordered toward God or not to be subject to the order of His justice, even in those matters according to which men are ordered toward one another. "

Those who hold that God can dispense from the precepts of the natural law, regard that law as an arbitrary fiat or else think there is no other way of explaining certain incidents recorded in the Old Testament (the sacrifice of Abraham, the appropriation of the golden vessels by the Israelites, the marriage of Osee,¹¹ etc.). The former assumption is manifestly false. The latter may be characterized as a clumsy subterfuge. The exegetical difficulties which it was devised to meet, are real; but they cannot be solved by the assumption that God, as the Sovereign Lord and Lawgiver, can dispense from the precepts of the natural law and arbitrarily dispose of the lives and property of men.¹² For, though there are some technical difficulties in the text,¹³ it is clearly impossible for God to dispense any man from the natural law because that law is an effluence of His voluntas ordinata, i. e., His will as governed by His wisdom and benevolence.¹⁴ Whatever the natural law commands is good and whatever it forbids is evil, not because it is commanded or forbidden by lawful authority, but because it is in conformity with, or opposed to, man's rational nature; or, as the Scholastics say, "Things are not good because they are commanded, but are commanded because they are good."

¹¹ Gen. XXII, 2; Ex. I, 15-21; III, 22; XI, 2; XII, 35-36; Os. I, 2.

¹² Cfr. St. Augustine, Quaestiones in Heptateuch., VII, qu. 36 (Migne, P. L., XXXIV, 803); IDEM, De Civitate Dei, I, c. 21 (P. L., XLI, 35); IDEM, De Divers. Quaest., 83, qu. 53 (P. L., XL, 34-38); St. Bernard, Liber de Praec. et Dispens., c. 3, n. 6-8 (P. L., CLXXXII, 864); St. Thomas, Summa Theol., 1a 2ae, qu. 100, art. 8, ad 3.

¹³ With regard to the sacrifice of Abraham cfr. P. Scholz, Die hl. Altertümer des Volkes Israel, Vol. II, Ratisbon 1868, pp. 119 sq.; on the marriage of Osee, W. Riedel, Alttestamentliche Untersuchungen, Leipsic 1902, pp. 1 sqq. (The prophet's consort was a servant of Baal and an idolatress, and in this sense is called "a wife of fornications"). On Ex. III, 22 see F. Bennewitz, Die Sünde im alten Israel, Leipsic 1907, pp. 70 sqq.—Cfr. Ph. Kneib, Die "Jenseitsmoral," pp. 200 sqq.

¹⁴ Cfr. Rom. VII, 14; Eph. I, 1 1; Kneib, Die "Jenseitsmoral," pp. 38 sqq.; P. Minges, O.F.M., Der Gottesbegriff des Duns Scotus, pp. 101 sqq., 120 sqq.

To this consideration may be added another. God's action furnishes the ideal for the moral conduct of men. "Be ye holy, because I the Lord your God am holy."¹⁵ He is absolute goodness. "One is good, God."¹⁶ 1G Jesus Christ, the second Person of the Trinity, is the pattern-exemplar of all perfection, "as a kind of law and living justice."¹⁷ Were God, therefore, even in one single instance, to dispense from the natural law, He would set up a different rule of conduct for Himself and His rational creatures, and thus confuse the minds of men, give scandal, and render His own example ineffective.¹⁸

¹⁵ Lev. XIX, 2; cfr. Lev. XI, 44; Matth. V, 48; i Pet. I, 16.

¹⁶ Matth. XIX, 17: "Unus est bonus, Deus."

¹⁷ "... quasi quaedam lex et quaedam iustitia animata." (St. Thomas, Summa Theol., 3a, qu. 59, art. 2, ad 1).

¹⁸ St. Thomas, De Veritate, qu. 23, art. 6: "The will does not have the character of the first rule, but is a right rule. For it is directed by reason and intellect, not only in us but in God. ... To say that justice depends upon sheer will is to say that the divine will does not proceed according to the order of wisdom, which is blasphemous." —IDEM, Summa Theol., 1a, qu. 21, art. 1, ad 2: "Since the good understood is the object of the will, it is impossible for God to will anything except what the reason of His wisdom has. This reason is like a law of justice, according to which His will is right and just. Hence what He does according to His will He does justly, just as we too act justly when we act according to law. We, however, act according to the law of someone superior, whereas God is a law to Himself.

To-day not a few who reject the teaching of Christianity demand an ethical system in which man is his own law. This demand is to some extent justified. Man has a right to insist that the moral yoke imposed on him should conform to his rational nature. But reason is not the highest and final authority. Man, far from being independent and autonomous, is a creature subject to God. On the other hand we must not exaggerate the heteronomous side of Christian ethics. The moral law is not an arbitrary fiat of the Almighty which demands blind obedience without regard to the dictates of reason. Heteronomy in this sense would be unworthy of human nature and of God. In matter of fact Christian morality is by no means onesidedly heteronomous. It combines autonomy with heteronomy by teaching that, though God is the Author of all law, His will is not arbitrary, but based on His wisdom. Human reason being a reflection of the divine Intellect, its dictates must coincide with the laws of God. In other words, the will of God is promulgated in our rational nature, which thereby becomes for us the proximate, though only a secondary, source of the moral law. Man sins when he acts against his reason or conviction. But reason does not get its authority from itself. God, from whom all authority comes, has inscribed the natural law into the hearts of his rational creatures.

Thus, according to the Catholic view, man serves God by obeying the dictates of his reason, and morality is alike autonomous and heteronomous.

READINGS. —E. Sawicki, Wert und Würde der Persönlichkeit im Christentum, Cologne 1906. —IDEM, Das Problem der Persönlichkeit und des Uebermenschen, Paderborn 1909. —Ph. Kneib, Die "Heteronomie" der christlichen Moral, pp. 17 sqq. —IDEM, Die "Jenseitsmoral" im Kampfe um ihre Grundlagen, pp. 7 sqq. —M. Cronin, The Science of Ethics, Vol. I, pp. 615 sqq. —E. Müller, Theol. Mor., Vol. I, 5th ed., pp. 137 sqq.—W. McDonald, The Principles of Moral Science, Dublin 1904, pp. 92 sqq.

The positive divine law consists of precepts which God has given and supernaturally revealed to men for their salvation. Such legislation is morally necessary because reason is seriously impaired in consequence of the fall of our first parents, and man has not only a natural but likewise a supernatural destiny.¹

¹ Cfr. St. Thomas, Summa Theol., 1a, qu. 1, art. 1. —IDEM, Summa contra Gentiles, l. I, c. 4. —IDEM, Comment, in Sent., III, dist. 24, qu. 1, art. 3. —Conc. Vatican., Sess. III, c. 2; can. 2-3 de Revel.—St. Ambrose, Epist., 73, n. 9: "[The law given through Moses] would not have been necessary if we had been able to observe that natural law; but because we did not observe it, this law through Moses became necessary." (Migne, P. L., XVI, 1253). —St. Augustine, Enarr. in Ps., 57, n. 1: "The hand of our Maker wrote truth in our very hearts: 'What you do not wish to be done to you, do not do to another.' [Tob. IV, 16; Matth. VII, 12.] Even before the law was given, no one was permitted to be ignorant of this, so that there might be a basis for judging even those to whom the law had not been given. But lest men should complain that something was lacking to them, what they did not read in their hearts was also written on tablets." (P. L., XXXVI, 673).— IDEM, Confess., VII, c. 21, n. 27 (P. L., XXXII, 748). —F. J. Mach, Die Notwendigkeit der Offenbarung, Mayence, 1883. —J. Scheeben, Dogmatik, Vol. I, pp. 17 sqq. —Th. Meyer, S.J., Instit. Iuris Naturalis, Vol. I, 2nd ed., pp. 255 sqq. —Cat. Rom., P. I, c. 2, qu. 6. —St. Thomas, Summa Theol., 1a, qu. 1, art. 1: "The whole salvation of man, which is in God, depends upon knowledge of the truth."

The manifestation of God's will known as the positive divine law is contained in the Old and New Testaments.

I. THE OLD TESTAMENT. —The positive law of the Old Testament (lex vetus) is partly pre-Mosaic and partly Mosaic. The pre-Mosaic law consists of certain precepts given to individuals, (Noe, Abraham, etc.) mostly concerning divine worship, the use of animals for sacrifice, the rite of circumcision, etc.²

² Gen. VII, 2; IX, 4 (cfr. Acts XV, 20); XVII, 10-14; XXXVIII, 8 (cfr. Deut. XXV, 5 sq.). —A. Wiener, Die jüdischen Speisegesetze, Breslau 1895. —K. Böckenhoff, Das apostolische Speisegesetz, Paderborn 1903, pp. 8 sqq. —IDEM, Speisesatzungen mosaischer Art in mittelalterlichen Kirchenrechtsquellen, Münster 1907, pp. 1 sqq., 50 sqq. — G. Resch, Das Aposteldekret, Leipsic 1905, pp. 19 sqq., 41 sqq. —A. Seeberg, Die beiden Wege und das Aposteldekret, Leipsic 1906, pp. 38 sqq., 53 sqq.

Rabbinic tradition has handed down seven "Noachian precepts," i. e. canons or laws which were given by Jehovah to the sons of Noe. These precepts enjoin: (i) Submission to civil authority, kings, judges, etc.; (2) Avoidance of idolatry and sacrilege; (3) Reverence for the name of God, as in taking an oath; (4) Proper restraint and direction of the sexual instinct; (5) Reverence for life, even of animals, by refusing to consume the blood of beasts as food; (6) Respect for the rights of property; (7) Refusal to eat the members of a living animal. To these the Rabbins added others. Thus no stranger was allowed to dwell among the Hebrews unless he became a ''proselyte of the gate," i. e,, unless he worshipped the one true God and observed the Noachian precepts.

The Mosaic law consisted mainly of "the judgments, precepts, and laws which the Lord gave ... in Mount Sinai by the hand of Moses." ³ These precepts are commonly divided into three classes: moral, ceremonial, and judicial. i. The purely moral precepts of the Mosaic law (praecepta moralia) are all traceable to the Decalogue.⁴ They are "words of life,"⁵ because they express the will of the living God and are intended to give eternal life to those who observe them.⁶

³ Lev. XXVI, 45; Deut. VI, 1, 20; VII, 11. —Cfr. St. Thomas, Summa Theol., 1a 2ae, qu. 99, art. 2-5.

⁴ Ex. XX, 2-17; Deut. IV, 13; cfr. Matth. XXII, 37-40. —St. Augustine, Serm., 9 (al. 96 de temp.), n. 7: "The whole law is in two precepts, in the love of God and the love of neighbor; the Decalogue therefore pertains to two precepts, that is, to the love of God and of neighbor." —Ibid., n. 14: "The Ten Commandments are referred to those two, that we love God and our neighbor; and those two to that one. The one is: 'What you do not wish to be done to you, do not do to another.' In it the ten are contained; in it the two are contained." (Migne, P. L., XXXVIII, 80, 86).

⁵ λόγια ζῶντα. Acts VII, 38. — Cfr. J. E. Belser, Die Apostelgeschichte, Vienna 1905, p. 100.

⁶ Lev. XVIII, 5: "Keep my laws and my judgments, which if a man do, he shall live in them." —Cfr. Deut. XXXII, 47; Rom. VII, 10, 12, 14; Gal. III, 12.

The Decalogue contains two precepts which do not formally coincide with the commandments of the natural law. They are: the (temporary) prohibition of graven things or images, and the sanctification of the Sabbath. With the exception of these two precepts, the Decalogue embodies the natural law and consequently forms the basis of all ethical teaching. This explains why Christ did not abrogate the law of Moses, but expounded and fulfilled it and raised it to a higher plane.⁷

⁷ Matth. V, 17 sqq.; Rom. III, 31. —Cfr. Conc. Trident., Sess. VI, can. 19.

The third commandment in its literal wording is purely ritual; it simply designates a day for public worship and commands that day to be hallowed in a definite manner. The public worship of God as such is a precept of the natural law.⁸

⁸ Cfr. St. Thomas, Summa Theol., 2a 2ae, qu. 122, art. 4; IDEM, Comment. in Sent., III, dist. 37, art. 5.

2. The ceremonial precepts of the Mosaic law (praecepta caeremonialia sive legalia) typified Christ and His Church, and were abrogated by Him. "The law was our pedagogue in Christ," says St. Paul, "that we might be justified by faith; but after the faith is come, we are no longer under a pedagogue." ⁹ The ceremonial precepts of the Old Law, therefore, are no longer in force, but have been formally repealed, and hence it would be sinful to observe them. "Immediately after Christ's passion," says the Angelic Doctor, "[the legal precepts of the Old Law] were not only dead, i. e., no longer either effectual or binding, but also deadly, that is to say, whoever observed them was guilty of mortal sin." ¹⁰ 3. The judicial precepts of the Old Law (praecepta iudicialia)¹¹ are likewise abrogated, but it would not be sinful to obey them as mere human precepts, provided no obligation is attributed to them because of their being contained in the Mosaic code. In the language of the Schoolmen, these precepts are "mortua, non tamen mortifera."¹² The moral law of the Old Testament was a special prerogative granted to the Israelites in preference to other nations because "by them the pure light of the law was to be given to the world." ¹³ But the Mosaic law was imperfect in its form (consisting mostly of prohibitions) as well as in the manner of its fulfilment. It did not possess the power of justifying those to whom it was given, nor was it intended for this purpose. Its sole aim was to remind the Israelites of their sinfulness and to inspire them with a desire for Christ, who was to fulfil and perfect the law.¹⁴

⁹ Gal. II, 3-5; cfr. Gal. III, 24-29; IV, 9-10; V, 2.

¹⁰ Summa Theol., 1a 2ae, qu. 103, art. 4, ad 1: "Immediately after Christ's Passion [the legal precepts] began to be not only dead, that is, without force and obligation, but also deadly, so that whoever observed them sinned mortally."—Cfr. Acts XV, 10.— St. Justin Martyr, Dial. c. Tryph., c. 9-47. —St. Augustine, Epist., 82 (al. 18), n. 16: "Any Christian, even if he be from the Jews, who wishes to celebrate them in the same way, as though digging up sleeping ashes, will not be a dutiful escort or bearer of the body, but an impious violator of its burial." — Ibid., n. 20: Those things that were commanded for the sake of signification were to be permitted for a little while, especially to those who had come from that people to whom they were given. But afterward, as things buried with honor, they were to be abandoned irrevocably by all Christians." (Migne, P. L., XXXIII, 282, 285).

¹¹ Exod. XXI-XXIII.—Cfr. A. Schöpfer, Geschichte des alten Testamentes, 4th ed., Brixen 1906, pp. 304 sqq.; M. Seisenberger (tr. Buchanan), Practical Handbook for the Study of the Bible, New York 1911, pp. 106 sqq.

¹² Cfr. St. Thomas, Summa Theol., 1a 2ae, qu. 104, art. 3: "The judicial precepts are indeed dead because they have no binding force, but they are not deadly; for if some prince ordained that those judicial precepts be observed in his kingdom, he would not sin, unless perhaps they were observed or commanded to be observed as having binding force from the institution of the Old Law. Such an intention in observing them would be deadly." —Cfr. F. E. Kübel, Die soziale und volkswirtschaftliche Gesetzgebung des alten Testaments, 2nd ed., Stuttgart 1891; F. Buhl, Die sozialen Verhältnisse der Israeliten, Berlin 1899; F. Walter, Die Propheten in ihrem sozialen Beruf, Freiburg 1900, pp. 14 sqq.

¹³ Wisd. XVIII, 4; cfr. Deut. IV, 8; Ps. CXLVII, 19-20; Bar. III, 9 to IV, 4; Rom. III, 1-2; IX, 4.

¹⁴ Gal. II, 21; III, 24; V, 1; cfr. Acts XV, 10.

It would be wrong to say, however, —as Kant and Hegel and their respective followers do, —that the Mosaic law prescribed external acts only (lex mosaica cohibet manum, non animum). Its positive and negative precepts alike demand internal obedience, e. g., thou shalt not covet. True, in obeying the law of Moses, the Israelites were moved chiefly by the fear of temporal punishment and the hope of temporal reward.¹⁵ But these external sanctions were not their only motives. The more pious among them no doubt acted from higher considerations, —love of God, hope of eternal reward, etc. The commandments: "Thou shalt love the Lord thy God with thy whole heart, and with thy whole soul, and with thy whole strength," ¹⁶ and: "Be ye holy, because I the Lord your God am holy," ¹⁷ were not merely proclaimed, but inculcated as the rule of life. The Old Testament even anticipated the New by teaching that all men are children of God.¹⁸ The Mosaic code was by no means a law without grace, but a "holy, just, and good law/'¹⁹ perfectly capable of sanctifying those who observed it.

¹⁵ Heb. XII, 18-24. —St. Augustine, Contra Adimant., c. 17, n. 2: "This is the briefest and clearest difference between the two Testaments: fear and love. The former pertains to the old man, the latter to the new; yet both were brought forth and joined by the most merciful dispensation of the one God." (Migne, P. L., XLII, 159).—Ph. Kneib, Die "Jenseitsmoral," pp. 189 sqq., 204 sqq.

¹⁶ Deut. VI, 5 sqq.

¹⁷ Lev. XIX, 2, 18.

¹⁸ Lev. XI, 44; Deut. X, 16, 19; XI, 1, 13, 22; XIII, 3; XIV, 1; XXX, 6; Is. LXIII, 16; LXIV, 8; Mal. I, 6; Eccles. XII, 13; Ecclus. II, 20. —Cfr. G. Sternburg, Die Ethik des Deuteronomium, Berlin 1908; M. Wiener, Die Anschauungen der Propheten von der Sittlichkeit, Berlin 1909.

¹⁹ Rom. III, 31; VII, 12.—Cfr. Prop. Damnat. Quesnelli, prop. 64 sq. (Denzinger-Bannwart, n. 1414 sq.).

It has become the fashion to speak disparagingly of the Ten Commandments. But, as a non-Catholic writer justly observes, "one who has studied the history of comparative religions will judge differently. He will perceive that the Decalogue represents the highest achievement in the religious life of the nations before Christ. For whereas other lawgivers dealt indiscriminately with things big and little, sublime and ridiculous, attributing equal importance to each, the Decalogue contents itself with laying down the fundamentals of the moral and religious life for all times and generations. The Ten Commandments in their elementary majesty are a genuine revelation of the eternal moral order of the universe, because they emphasize the unity and spirituality of God, ascribe decisive importance to devotion in matters of life and worship, enjoin social precepts which are today admitted by all, and demand purity of intention and purpose."²⁰

²⁰ K. Furrer in the Theologische Literaturzeitung, Leipsic 1902, p. 419-

Another Protestant author says: "Ancient Babylonia was no doubt the center from which cultural influences radiated in every direction; but religion, which is the supreme achievement of all true culture, has its classic literature in the Bible." ²¹ Despite vociferous assertions to the contrary, no true equivalent of the Decalogue or of any considerable portion thereof has been discovered among the literary remains of ancient Babylonia. The resemblances traceable between the Mosaic law and the code of Hammurapi are mainly juridical; ethically, the former is beyond comparison superior to the latter.²²

²¹ E. Konig, Bibel und Babel, 3rd ed., Berlin 1902, p. 51.

²² Cfr. H. Pope, O.P., The Catholie Student's "Aids" to the Bible, London 1913, pp. 33 sq. —M. Seisenberger, Practical Handbook for the Study of the Bible, New York 1911, pp. 272 sq.

Whether customs have been suppressed

21. IV. What of custom, I mean of a particular custom of places which has been contrary to this law?

1. No clause of the law abrogates particular customs of places, if they have been legitimate. For they are not taken away by a general law, "unless it is expressly provided in the law itself."¹ But in our Constitution no clause, not even generically, commemorates them, whereas the Constitution Apostolicae Sedis contains the most ample revocations of them. Nor does the end of our law demand this severity, so long as the matter concerns certain secondary mitigations which had prevailed even in those places where the laws of the Index undoubtedly were in force, and which can be composed with general obedience to our Constitution. We judge that these, if they have been legitimately prescribed, can still be retained. In explaining articles 7 and 41, examples of mitigations of this kind will occur. Genicot,² the Archiv fur katholisches Kirchenrecht,³ and several others are with us; nevertheless Wernz is against us,⁴ since he considers only our written Constitution.

What custom can be legitimate

But the custom of plainly setting aside those prohibitions which contribute so greatly to protecting faith and morals seems to many not to be capable of being reasonable. So Fessler.⁵ Gopfert denies that this reason is effective,⁶ since this custom tended only to this: that those who would read reprehensible writings without detriment would not commit a sin against ecclesiastical laws, a case which otherwise would be very frequent. And in truth, can the faithful not, by the counsels of a prudent confessor, avoid the excessive danger of delusion, on account of which that custom would seem unreasonable?

Nevertheless, a general exemption from the laws of the Index, even one resting on custom, cannot stand with the manifest intention of the Legislator, by which he commands that "Catholic men throughout the whole world obey these decrees religiously." Yet he prudently knows how to urge the force of his law. Cf. below concerning England.

¹ C. Licet 1, De Constitutionibus, in Sexto. Cf. Reiffenstuel, I, 4; or I, 2, nn. 498, 499; Laymann, Ius canonicum, in book 1, title 2, chapter 1 in Sexto, n. 12.

² Loc. cit., I, n. 455.

³ Vol. 78, p. 187.

⁴ N. 110, note 46.

⁵ Cited by Arndt, op. cit., n. 90, p. 104.

⁶ Op. cit., p. 322.

Universal necessity of having a faculty

95. 1. Since the article permits only those to read or retain proscribed books who have obtained a legitimate faculty, it makes the same faculty universally necessary.

From this necessity no grade is excepted: since Cardinals themselves obtain the faculty for themselves; nor doctrine or science, as P. Hilgers proves broadly.¹ To declare immune as many as, for example, excel in all sciences or in some, would be a matter full of danger and confusion, and alien from ecclesiastical tradition, while the obedience of the more learned is especially salutary to themselves and to others.

Nor should you argue from the moral security which those doctors enjoy. Even if we have conceded this, this remains: that the law is not taken away because its reason has ceased negatively in only a particular case.

Nor should you bring forward inconvenience. For as long as there is an opportunity of seeking permission, an inconvenience by which you would be excused from the law cannot be alleged.

Moral necessity excuses from the law in a particular case

2. Yet actual exceptions from the law, if at any time, from an assumed office, a moral necessity presses you to read some condemned work, seem able to be admitted even without any faculty having been sought, provided, as is clear, proximate danger of sin is avoided.² In this necessity there can be: a judge, an advocate in a forensic controversy; a person to whom specially, from article 27, it belongs to make denunciation, for denouncing a certain book; an ecclesiastical superior, for examining and reprobating this book; a writer of a Catholic newspaper, for responding promptly; a youth who, for hearing lectures which he lawfully attends, or for making an examination in a philosophical matter or in letters, is compelled to use uncorrected texts; and, according to Hollweck,³ probably also a professor of moral theology, insofar as it is necessary that he know in some manner obscene books, for which a faculty is not conceded. For in these cases the license of reading is contained in the faculty itself of exercising such an office; or the end of the law can be said to cease contrarily and there is place for epikeia. For it ceases contrarily, as Lugo explains diffusely,⁴ when the common good itself demands that the bond of the law be removed in a particular case. Moreover it is for the republic that pious and Catholic men not be prohibited from exercising offices and duties. Cf. Hollweck, Génicot.⁵

What of grave utility?

The end of the law also ceases contrarily if grave utility has demanded that you do something prohibited in itself, and there is no opportunity of approaching the superior for license. They give the case of a disputation with a heretic, if, in order to convert him, it is necessary for you to show contradiction in a heretical author, and you have hope of fruit. Laymann, cited place, tract 1, chapter 15, n. 5.

But the reason of attacking heretics in general does not suffice, since the opportunity of asking license is at hand, and the common good requires that you not dispense yourself by your own private judgment. Cf. Lugo, cited place, n. 66; Arndt, pp. 259, 260, n. 185.

¹ Der Index, pp. 47-59.

² Yet they will do better, if it can be done, to obtain license; indeed Pennacchi, n. 61, seems to require this.

³ Cited work, pp. 32, 33, note 1.

⁴ De Fide, distinction 21, nn. 63-66.

⁵ Hollweck, cited work, pp. 32, 33, note 1; Génicot, cited work, I, 452, 4.

Intention of the introduction. It is not now proposed to us that we should here attempt to treat at length and polemically, with diverse opinions recited and rejected according to their merit, the questions concerning divine law and human obligation which are examined and disputed ex professo in moral philosophy. With God's favor, we should wish only, by the distinct presentation and exposition of certain notions, to prepare the way for obtaining for ourselves a scientific knowledge of laws and sins.

The divinely constituted order. Non-rational beings are led to their end by provident God through a physical necessity of acting, or determination; but man partly through moral necessity, or obligation, partly by morally free option by which, subordinately, that is, with the divinely constituted order intact, he himself predefines an order either for those subject to him or for himself. For just as he has received being, so from God, the universal provider, he finds an order constituted toward the common good of the whole human race, indeed of the whole created world. That order is pre-established from eternity by the purest and immutable divine act which is the very essence of God; but in the mode in which, because of our weakness, we are compelled to explain the divine act and make it as it were "human," the same order results from the eternal divine ordination, and consequently formally from the eternal command by which the divine intellect, under the motion of the divine will loving His infinite goodness to be imitated in the created world, efficaciously decrees creation itself. For insofar as order affects the essences of things, by one and the same intellection and will the world is created and ordered, or God is creator and orderer.

Besides, we are taught by faith that, by a positive will of God beneficent beyond measure, rational creatures have been called to a supernatural, that is, divine, end, and therefore a more sublime ordination of the world has succeeded in place of the merely natural one.

Finally, by the eternal divine foresight, provision has been made for the fall, or the culpable degradation of man, through the better order of the repaired world, to which Christ is assigned as head and end.

Proceed then: the human intellect perceives the essential, or natural and necessary, order of things; and thus human reason is said to participate in the eternal divine reason by its very cognition. At the same time it perceives the necessity of conforming itself to this order; this necessity it expresses by that mysterious word: I ought, and indeed absolutely, independently of every condition or supposition.

Formal and express subjection. Besides, he who formally acknowledges in that order the divine ordination immediately, by the spontaneous conclusion of the intellect, renders by the same word I ought the necessity of formal subjection under the commanding will of God.

Moreover that subjection extends itself to the order itself constituted by the positive will of God: for the necessity of obeying God elevating and repairing man is demonstrated as contained in the natural law itself.

Furthermore, the pre-established order appears to be completed and perfected, with respect had both to human society, or the common life of men, and to the singular life of each one. Thus, moreover, human reason, by the active faculty of providing for order, participates in the active excellence of the divine reason ordering.

Yet this active ordination must be composed, as we just warned, with the necessary observation of the order already constituted by God, either necessarily or freely, so that it is not a subversion of that order, but on the contrary its completion or perfection.

The present question concerning obligation. If man contemplated the universal order in God Himself, he would certainly acknowledge and adore Him formally as the author of order, and would conceive the necessity of obeying formally as theological, or as existing toward God.

But now he reads the order in created things themselves and in his own nature. Hence without the express and formal acknowledgment of God that mysterious I ought is pronounced and conceived. Hence a question, neither recent nor light, has arisen: what does psychologically the "I ought" contain, and by what cause is it generated in us; or what is its ontological or objective explanation?

This question differs formally from this other: whenever a man acts in a different way from that in which, according to the dictate of conscience, he ought to act, does he sin theologically or not? The former question pertains here; the latter is conveniently deferred to the treatise on sins. Yet we do not deny that it depends virtually on the former. For this reason we have affirmed a merely formal distinction between the two questions.

The description of obligation, or its nominal definition, agrees sufficiently among doctors. It means an objective absolute necessity imposed on the will. Objective necessity is opposed to subjective coercion or determination to one thing, and is a necessity which is perceived by the intellect as if an object and exhibited to the will. It is absolute insofar as, just like material or physical necessity, it excludes every exception. It is imposed on the will insofar as the will at the same time experiences itself as psychologically free and yet bound.

With this description there agrees also the psychological analysis of the more accepted philosophers. Thus Rauh ¹, in the sense of moral obligation, found these things: the spontaneous (not free) idea of a thing as to be done; the consciousness of that idea as of a thing free and yet, by a spontaneous act of reason, as if extorted; various effects of sadness, peace, as signs of these actions.

That spontaneous dictate, according to many, coheres with a certain innate and invincible appetite, invincible at least for this reason, that it remains in the very act by which it is contradicted, so that one acting otherwise is in a certain way absurd, while his practical-practical conclusion (or conclusion concerning action as here and now to be done) contradicts the necessary more general, or speculative-practical, judgment by which he judges: good is to be done, evil is to be avoided.

But is that appetite formally the appetite of my happiness, so that our spontaneous intuition - good is to be done, evil is to be avoided - is a certain conclusion of a reasoning of this sort: I wish to be happy; I cannot be happy unless I do good and avoid evil; therefore good is to be done and evil is to be avoided?

This explanation is shown false by the intimate sense itself. He who says that he is obligated often abstracts from his own happiness. Indeed he does not judge himself freed from obligation because he erroneously thinks the action to be done is opposed to his own happiness. Suppose some materialist who judges that the present life, that life namely besides which he holds there is none, must be sacrificed for his country.

Does the same dictate of obligation rather cohere with another profound will or innate inclination, that is, with an inclination toward that order which reason detects, and which therefore is also called rational? This inclination toward the honest good is in our very nature, which, as it imitates divine being, so also imitates divine holiness ¹. On account of divine holiness God absolutely wills the order of reason; on account of the participated holiness of God, our will has a necessary propensity to doing the good simply such and to avoiding contrary evil.

But shall we find in a certain innate propensity, or necessary subjective will, an adequate explanation of subjective obligation? If we observe ourselves psychologically, that dictate, I ought, expresses more than a certain innate propensity or inclination, for instance toward the honest good, which remains even when by my particular choice I contradict it. For conscience testifies to us more than this: "I act against my inclination," which it reports to me whenever I abdicate or neglect some appetite. Consciousness of inclination would lead me only to the conditioned dictate: "if you wish to obey your inclination, you must act thus." But the word I ought is much more absolute; it is released even from every inclination: whether I have this or not, nevertheless I ought.

If matters stand thus, nothing remains except this: the word I ought expresses the necessity, confusedly apprehended, of subjection to that order toward which I have an inclination; this subjection is immediately perceived in my created, or dependent, nature. Therefore it renders the consciousness of a certain Superior who must be obeyed. To use other words: I ought, that word, does not signify: by physical necessity I will; or by physical necessity I incline; but: by moral necessity I am compelled - moral, I say, because in my perceived necessary subjection the same thing is perceived: otherwise, I act badly; and I can indeed act badly physically, but I cannot by another reason, which I call moral and which is imposed on me.

And so the necessity of the divine will is explained by the infinite holiness of God; the moral necessity of our will is explained by our participated holiness and by our perceived subjection. Not our holiness alone, but this holiness completed by the intuition of our subjection, morally binds our will.

¹ Revue de Metaphysique et de morale, 1902, pp. 653-660, Le sentiment d'obligation morale.

¹ Cf. St. Thomas, 1, 2, q. 91, art. 2, c.

By the same intellection and will by which He created the world, God ordered it, morally binding the free human will both to the essential order and to the order superadded by His positive and munificent will. But the concept of moral obligation, which is expressed by the words, "I ought absolutely," does not seem able to be explained by a certain profound and physically necessary will of appetition, whether of one's own happiness or of the honest good; but it expresses the necessity of subjection to the order of reason, or at least a confused consciousness of a Superior who must be obeyed.

The order of speaking will naturally be this: first we shall treat of laws in common, then of divine law, then of human ecclesiastical law, finally of civil law. Between divine and human law we shall briefly explain the account of the law of nations.

Disposition of the title. We shall distribute this first Title into ten chapters in this way: I. The notion and essentials of law, where we shall speak of promulgation itself; II. The properties of law; III. The sanction of law; IV. The divisions of laws; V. Interpretations of law; VI. The author of law; VII. The subject of law; VIII. The observance of law; IX. The cessation of law; X. The diminished account of law in precepts and counsels.

Yet in the general exposition this must never be omitted: that the account of legislator is not univocal in God and in man, but principally belongs to God, and analogically, under God, to men.

The usefulness of the treatise is manifest, since there is question of the very measure of human actions, which are the most formal object of moral theology.

The divine Reason and Will, which create the whole world, order the same, or fittingly dispose it to its end. For the whole world, with its parts, is a certain whole whose unity and finality must be preserved and strengthened by a wise ordination. But a fitting disposition will be efficacious and adapted to the nature of things. Therefore irrational creatures will be drawn by physical necessity, but rational creatures will be moved insofar as practical dictates concerning the supreme ordination to be observed and completed are impressed upon their intellect, without violation of their nature. That is, they are to be induced to act freely and freely to abstain from action. And since the will, or their moving principle, is a rational appetite, they cannot be induced thus unless a norm of action is perceived by the intellect. Consequently, the norm must be authentically or authoritatively notified to the intellect; that is, an intimation or promulgation of the divine ordination is required.

By a not dissimilar reason, those who, under God, have human actions to be ordered must imperatively propose their practical dictates to the intellect of those whom they rule.

Hence the classic definition of law is demonstrated: "An ordination of reason for the common good, promulgated by him who has care of the community" (St. Thomas, 1, 2, q. 90, art. 4).

Ordination means disposition according to a principle of unity, which, when there is question of the universe, is primarily divine glory, but secondarily consummated perfection, or the beatitude of rational creatures.

Of regulating reason: for reason directs human actions.

For the common good: for the very end to which individual men are directed is their common good, whether you consider God, or the societies to which men are ascribed.

By him who has care of the community: whether by the title of one ruling, or by the title of one representing the multitude to be disposed to its end. St. Thomas mentions this title, 1, 2, q. 90, art. 3.

Promulgated or intimated, that is, imperatively communicated to the intellect, in which consequently the ordination of the legislator himself exists participatively.

Corollaries. I. The essentials of law insofar as it is for the common good. For the value itself of law there is required negatively: that it be honest, or not inducing to anything against the order either of nature or of positive divine law; that it be just, that is, that, insofar as the common good permits, it preserve distributive justice in apportioning common goods and burdens, and thus violate no one's right.

Positively, it is necessary that it conduce to the common good, and consequently that it be possible of observance not only physically but also morally, or not too difficult; and that it be necessary, or at least useful.

Concerning these conditions these things must further be observed:

1. It is metaphysically repugnant that the most wise God should order things which do not satisfy the necessary conditions. Hence these conditions are prescribed by the divine law itself only to human legislators. In divine law they are not to be attended to except, where doubt can arise, for judging concerning the true origin of an ordination which is presented as divine.

2. A law which commands dishonest things is destitute of all value, and it is never right formally to cooperate with such a law. But a law can be honest which does not punish certain evils, indeed positively permits them, yet without formal approval. Wherefore, the circumstances having been considered, certain "liberties" can be sanctioned, for example of the press, of associations, of opinions, not indeed that depraved things be written in print or propagated, but with foresight that many men will abuse that faculty. Such things will be able to be sanctioned if that license seems more to be desired than the restraining of liberty.

3. Although an inequitable law, or unjust law, as such, is invalid, nevertheless it can happen that, on account of the useful parts which it contains, or for avoiding greater evils, it must be tolerated and executed by good citizens, when there is question of goods which can freely be abdicated. There then accedes a certain higher law, of the natural order, which commands that, on account of the common good itself, those inequities, or inequalities, be tolerated.

4. What difficulty is excessive must be estimated from the condition of the persons and from common necessities. Thus upon religious, public officials, with attention to their state, heroic things are sometimes imposed. Thus in time of war heroic things are demanded from many citizens. A law which demands such things becomes useful for the common good, so that the reason why it would not be valid must be said to fail.

5. Usefulness for the common good suffices if it is indirect and mediate. But concerning this the legislator himself makes judgment. Wherefore manifest uselessness, and indeed general uselessness, is required if obedience can be refused on account of a reason of this sort. If utility ceases in the particular case alone, nevertheless the law will often remain to be observed, whether on account of avoiding scandal, or because the law will have been made for guarding against a general danger. Such are the laws concerning the prohibition of books. For then, if the law has been ecclesiastical, c. 21 must be observed: "Laws made for guarding against a general danger urge, even if in a particular case the danger is not present."

Moreover deception is easy in this matter. Thus in a man greatly mortified, or one who assiduously frequents church, the reason for the precepts concerning fasting or hearing Mass on a feast day can seem to have ceased, while nevertheless the reason of common observance remains.

Finally, lest a greater evil follow, a subject also can be obligated to continue observing a useless law. Yet if danger of mistake and scandal has been entirely absent, St. Alphonsus did not dare to disapprove the more benign opinion. For example, if it is entirely certain that a man has been baptized and in vain one writes to obtain a document required of itself, then, from epikeia, that demand of the document can be omitted.

II. Insofar as law is for a community, promulgation itself pertains to its essence. "Laws are established when they are promulgated," says the Code of Canon Law, c. 8, § 1. But promulgation is: "the solemn intimation of a law so made that it can become known to the community."

Yet it is not required that the law can strictly reach all, since law directly affects not individuals but the community. Nor is it necessary that it already be actually known to the community. For from the fact that it can become known to the community, it begins efficaciously to obligate the individual persons who know the law. But a private communication, sufficient for a few, does not obligate even those who know the law or ordination. But when promulgation has been made, and not before, the law obligates all subjects in first act; but in second act only those who are not excused by ignorance, or who have certain knowledge of the law.

For concerning others the principle is valid: "No one is bound except through knowledge of the law or precept." For no one can command anything to a man, or to a rational creature, unless his practical dictate, or what he wishes to command, is communicated with the mind of him whom he commands. But as long as this is not truly known, at least in a human way, there has been communicated not the dictate of one commanding, but only a doubt or suspicion of it. Cf. St. Thomas, De Veritate, q. 17, art. 3.

With the nature of the thing considered - for the legislator can establish more benignly concerning his law - as widely as the law is knowable, so widely is it promulgated and obligates in first act. Wherefore doubts concerning the sense of the law which can be resolved by private study will of themselves not prevent the law from having been promulgated according to that true sense. And by whatever path, for example by authentic declaration, that sense then appears, the excuse of ignorance will at the same time be removed. But it can happen that a law is objectively obscure or ambiguous, so that an inextricable doubt remains. An authentic explanation of this doubt needs a distinct promulgation, since that signification was not promulgated with the law itself. Hence, from c. 17, § 2, an authentic interpretation which explains a doubtful law must be promulgated.

Lemmas. I. Vacation of the law. Although for the present obligation of a law it is not necessary of itself that it already be actually known to the community, nevertheless, with a particular reason excluded, a human legislator prudently is accustomed to defer the obligation of the law until the law becomes morally known to the community itself. Through that interval of time, the law is said to vacate.

II. Physical laws and laws of the arts. Law means a norm of acting. Hence, insofar as they agree in the account of norm, there are also physical laws, which irrational things obey or follow by subjective necessity; and laws of the arts, to which exterior works must be accommodated so that the intended end of utility or beauty may be obtained. But the laws of human action, insofar as they are a rule of morals, are also called moral laws.

III. Precepts. Those things also which are commanded to individuals to be done or omitted can be referred to the common good, either immediately, as if they are commanded on account of the common good, or mediately, insofar as the private good itself is of interest for the common good. Therefore many things are also prescribed to single persons or to several, which are called precepts. (Cf. below for a more accurate notion.)

I. Law is defined: An ordination of reason for the common good, promulgated by him who has care of the community.

Ordination, or disposition according to a principle of unity, is made primarily, when there is question of the universe, according to divine glory, secondarily, according to the beatitude of rational creatures.

Of regulating reason.

For the common good, such as every end of man is.

By him who, by title of one ruling or of one representing the multitude, has care of the community.

Promulgated, or imperatively communicated to the intellect of subjects.

II. For the value of a law there is required negatively that it be honest, commanding nothing against the order of reason or a superior law, although perhaps it tolerates many evils; that it be, insofar as the common good allows, just, or that it preserve the norm of equality and violate no one's right. There is required positively that it conduce to the common good and consequently be possible of observance and at least indirectly necessary or useful. In order to rule the community, it is also required that through intimation it be able to become known to the community, that is, that it be promulgated.

But individual persons are actually bound when they have human knowledge concerning the law. To dissipate a true obscurity of the law, a new promulgation is required.

III. Vacation of the law designates the time through which a law, by the benign will of the legislator, does not yet obligate, although it has been promulgated.

Analogically there are also laws of the physical world and of the arts.

IV. But to individual men precepts are given, also for the common good.

As properties of law there are customarily numbered: obligation, which regards the efficacy of law; universality, which regards the subject; perpetuity, which regards duration; extension to future things alone, which regards temporal extension. (Territoriality pertains only to a human legislator.) In what way each is to be understood must be said briefly by us.

The first and common efficiency of law is called obligation. For unless it binds the will, law will not avail to induce the unity which the legislator intends. So indeed for the most part. But from the very reason added, it is evident that the obligation of law coheres with its efficacy, or that the necessity of obligation is derived from the necessity of efficacy. Therefore if, without properly so-called obligation, law can be efficacious, obligation will not pertain to the essence itself of law. Hence moral laws are distinguished, whose transgression immediately induces theological guilt, or which immediately obligate; and penal laws, which merely impose the necessity of undergoing a penalty; while those are called mixed which obligate under sin and penalty.

Concerning penal law. Among writers prior to Suarez, there were some, for example Sylvester, who denied that merely penal laws could be had: for it would be repugnant to the essence of law that it not obligate to the commanded act; nor could a penalty be inflicted without guilt, while guilt is excluded if obligation is denied.

Yet obligation is not expressed in the definition of law; nor does it seem strictly to be contained in its concept. For a legislator who wills that his practical dictate concerning a thing to be done become the common practical dictate of his subjects, in reality wills to order them to the common good. Therefore his will or intention is a legislative will. And if that will is commonly efficacious, it truly orders the subjects. But this efficacy can sometimes be obtained even without obligation or bond of the will; as if, among those zealous for perfection, he obtains spontaneous docility from most at least; just as also many singular precepts are given efficaciously without obligation under sin, by a simple signification of the will. If now some exterior penalty seems opportune but sufficient for efficacious direction, the same legislator will be able to bind the will only by the penalty to be undergone. This penalty is just, because it has been imposed for the transgression of an order legitimately constituted, although not essential, nor commanded under sin. There is a delict in the external forum; it is not necessary that there be one in the internal forum. And thus reply is made to the objection: no penalty without guilt. There is juridical guilt: which suffices.

Besides, the very mode of conceiving penal law varies. In the nineteenth century there prevailed the explanation through disjunctive obligation, as if the legislator had left the option of obedience or penalty. Thus C. D'Annibale, Summula, I, n. 207; thus Bouquillon, Theol. Fundament., n. 131. But today that opinion is deservedly abandoned, since the legislator by no means indifferently wills the one or the other, but immediately wills and imposes one thing: obedience to his law, yet in such a way that the moral obligation is terminated to the penalty alone to be undergone or suffered. For, as Wernz writes ¹: "If obligation is imposed only to undergoing a penalty, it can happen that the obligation arises only after the sentence of a judge." That opinion, which is ascribed to Billuart ², and pleases Koch ³, Prummer ⁴, Makoto ⁵, is already repeated in Suarez ⁶, when he says that penal laws are "binding under threat of penalty, although they do not bind in conscience to the act on account of whose transgression they bind to the penalty"; and he describes a purely penal law as one "which has only one quasi-hypothetical precept, of sustaining such a penalty or inconvenience if this is not done."

Merely penal laws are found only in human laws; all divine laws obligate conscience and are sanctioned by penalties. In human laws themselves, Bouquillon ⁷ judges that merely penal laws cannot reasonably be given "unless the burden imposed of itself avails for obtaining the special end of the act, and for compensating in some measure its defect, but not if it has merely coercive force." Thus he understands fasting under the penalty alone of alms, a tax under the penalty alone of a fine; but the use of ecclesiastical dress could not be imposed under the penalty alone of a fine, because the fine would not compensate the defect of the thing enjoined. Yet we do not think that this is established. Suarez estimates more simply that often, for avoiding dangers of souls, it can be expedient that a merely penal law be made, "because some coercion is useful; and that a greater one not be made is also useful to souls and pertains rather to sweet providence than to rigor" (l. c.).

¹ Ius Decretalium, I, n. 109. Moreover he himself abstains from every explanation.

² De Lege, diss. 4, art. 4.

³ Lehrb. der Moraltheologie, P. I. S. 1. c. 2.

⁴ Manuale Theolog. moralis, n. 209, ss.

⁵ Institutiones iuris canonici, I, n. 221.

⁶ De Legibus, l. 5, c. 4, n. 1.

⁷ Theolog. mor. fundament., n. 131.

Concerning the gravity of moral obligation. The guilt under which moral law obligates is judged to be adapted to the matter itself, so that it is grave where a matter of grave moment is treated, unless the legislator has sufficiently signified a diverse will. For just as he can abstain from the precept itself, so he can temper the force of his precept.

But beyond the capacity of the matter, or to obligate gravely in a light matter, at least a human legislator cannot.

Moreover the moment of the law itself must be prudently measured from the object and end, as will be declared more in the treatise on sin.

"Law is a common precept" ¹. And so it is called universal insofar as, even if many laws are not applicable to all subjects either collectively or distributively, and laws are given which directly regard one person, for example the Pontiff, the King, nevertheless every law considers subjects formally not as singular persons, but as pertaining to the community, of which they are the head or members. That is, to insist on the example brought forward, the law will be not concerning Gregory the Pontiff or Edward the king, but concerning the Pontiff or the King in general.

But universality understood thus is a true property of law, since it flows from the essential notion itself of law, by which it is said to be an ordination for the common good.

For if it is for the common good, it will reach singular persons or families or lesser groups under the respect of their relation to the community. The respect will be demonstrated either by office (a law concerning a vicar general), or by kind or condition (a law concerning clerics), or by place or habitation (a law concerning residents, concerning travelers).

Certainly it can be demanded by the common good itself that something be commanded to a certain singular person as such; but that command will be called by another name: that of precept.

Therefore do not confuse the community for which a law can be made, and the community concerning which a law is made. The former must be such that it is, or can be, a perfect community; the latter can be any community whatsoever, even a lesser one. Thus a law is not made for a parish; but a law concerning such a parish can well be made.

¹ Cf. Suarez, De Legibus, l. I, c. 6, n. 17.

Every law is perpetual, at least by this reason, that when its author has died, it itself does not cease. For the author of law, as such, represents the community, which does not cease by the death of the prince.

In general also by law provision is made for a permanent necessity or utility of society. Wherefore most laws are perpetual by this reason also, that they are not made for a certain day, but are accustomed to remain until they are explicitly or implicitly abrogated. In this sense they are sometimes said to be "going to be valid perpetually." But human laws are not positively perennial, nor is perenniality contained in the account of law. Nothing prevents laws from being made, even divine laws, for a certain time or until the circumstances persevere. Think of the Old Testament, which, the priesthood having been transferred, was abrogated ¹. Such a temporary law, according to the testimony of the Holy Office, March 20-22, 1918, are the prescriptions concerning modernism to be overcome (A.A.S. X, p. 136).

Therefore it must be attributed to the positive will of the legislator if temporary sanctions, as such, are called by a name other than that of law.

And so positive perpetuity cannot strictly be exhibited as a property of law.

¹ Cf. Epistle to the Hebrews 7, 12.

Laws regard future things, not past things, unless provision is made in them concerning past things by name. Thus wisely the Code of Canon Law, c. 10.

If we consider only the effect of obligation, the rule concerning the application of law to future things alone is a true property of law, which admits no exception. For since law cannot impose its obligation except by means of promulgation or notification, it is manifest that no obligation can be had unless it is posterior to the law. Acts done at a time when the law did not exist could not violate the law, or constitute anyone guilty. But laws have other permanent effects in the juridical condition (for example of an administrator, of a professed person) to which they gave beginning. And it is in the power of the legislator that he apply the regime of a new law to present effects of anterior acts or of a status previously possessed. Nothing impedes him from declaring a juridical act, for example a testament or sale, invalid, because the conditions of the new law have by no means been satisfied. Yet the common good requires that citizens not be disturbed in the peaceful possession of their things without a special cause. Wherefore the Code enunciates the admitted principle concerning the "non-retroactivity of laws," tempered however by clearly established exceptions.

The corollary of this principle is that acquired rights are not taken away by a new law.

But the whole difficulty is in explaining an acquired right, from which a new law of itself does not derogate. Etymologically ius quaesitum is the same as ius acquisitum, an acquired right. But we have handed down a twofold explanation of acquired right in the Epitome iuris canonici (I, n. 45 a).

1. From an antecedent law as such, no acquired right immediately arises. For the law was known to be mutable, and what was founded on the law alone necessarily falls with the foundation, or the law. Thus what the capacity or incapacity of a minor person is must be estimated from the present law. But an acquired right is had when a title diverse from the law, for example a contract, intervenes to firm up some juridical condition or some honor or privilege. Thus acts legitimately done by a minor according to the preceding law will of themselves remain valid, although, from the new law, such acts can no longer validly be done by them.

2. An acquired right is taken away if, on account of his own past deed, or the new law not having been observed, someone suffers inconvenience or detriment. But it is not taken away if the law is applied to him because, independently of his own past deed, he is now in the required conditions of application. Suppose a new incapacity to be introduced for clerics or professed persons: even those who before the Code had become clerics or professed persons will contract this incapacity, unless the legislator positively wills to treat them more benignly.

The properties of law are:

I. Obligation, insofar as the efficacy of direction requires it. Hence laws are moral, obligating under guilt; penal, under penalty; mixed, under guilt and penalty.

A penal law is not to be conceived as disjunctive; but its efficacy is provided for by the sanction of penalty alone, without another obligation.

The gravity of moral obligation is judged adapted to the matter; nor can at least a human legislator obligate beyond the capacity of the matter; yet it remains whole to him to obligate below such capacity.

II. Universality, insofar as law reaches subjects under a common and not individual account.

III. Perpetuity, insofar as, when the author has died, the law does not cease. But a law can be made for a certain time.

IV. Extension to future things alone, insofar as of itself law does not regard past things unless this is expressly provided. Wherefore it does not take away acquired rights: that is, it does not suppress a title, diverse from a superior law, which immediately founds a juridical condition; nor on account of a past deed does it generate trouble or inconvenience for subjects.

— Sanction means, first, the act of making a decree or law; hence, in law today, not rarely, by this name is called the act by which a king or the president of a republic, by signing his name, as it were completes the law. Then it signified the law itself or decree, especially one which is urged by a penalty. And because both a penalty and a law are decreed or sanctioned, sanction is used of the penal coercion which is added to law for strengthening the law or for compensating the social detriment brought about by violation of the law.

Penalty, properly, is an evil contrary to the will and inflicted because of fault. It is distinguished as concomitant, which violation of the law brings with itself, by a greater or lesser intrinsic necessity (wherefore it is also called an internal sanction), and external or inflicted, which has an extrinsic cause. Every penalty, as announced, is medicinal; for it is announced so that the law may be better observed. But as inflicted, that penalty is medicinal which immediately tends to the amendment or good of the delinquent himself, while vindicative penalty is imposed in vindication of the violated order.

That sanction of law cannot be confused with its obligation. Obligation pertains to the directive force of the law, sanction to its coercive force. Obligation affects all subjects; sanction affects only transgressors of the law. Obligation requires the free will of the subjects; sanction of itself is repugnant to the will. Obligation is immediately a binding to good order; sanction is immediately the privation of some good.

Of itself, indeed, a good will can be helped both by rewards and by punishments, and the opposition of the passions can be moderated. And thus, in a broader use, the word is taken, for example, by Noldin, Principia n. 108. Human legislators, however, are not accustomed to add the stimulus of rewards to their laws. Nor could they generally do this. For since a sufficiently universal external observance of the law is procured, to which alone the human legislator can attend, most citizens would have to be rewarded. But since he himself would have to draw the aids from the community itself, by a reward too general he could only restore to the community what he had received from the community; that is, citizens would receive as a reward their own gifts. Therefore even for this reason divine law excels human law, because it remunerates virtue with an infinite reward.

— The sanction of law now means the penal coercion by which the law is urged. Penalty, or an evil contrary to the will and inflicted because of fault, is distinguished as concomitant or internal, and inflicted.

God alone at the same time sanctions his law with magnificent rewards.

— 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).

— I. Notion. Divisions. - 1. The interpretation of law is the explanation of the sense contained in the law.

Taken strictly, it supposes a doubtful and obscure sense, and differs from declaration, which is the verbal exposition even of a clear law.

2. a) In respect of the author: authentic is that which is made by the legislator or by him to whom he has committed this, and it obliges at least those to whom it has been given and imposed. It is made not only by law, by the legislator, but also by way of sentence, by any competent tribunal, in the cases which it decides, and by way of rescript, in a particular matter, for example by a Sacred Roman Congregation.

Doctrinal is that which is made by experts.

Usual is that which is made by custom, concerning which, c. 29: "Custom is the best interpreter of laws."

b) In respect of the source from which light is sought, the mind or soul of the law is gathered either from the words or from other circumstances. The words must be approached first, and they must be taken according to the usual sense (not the philological sense) and the sense received in the court. If, however, the mind is clear from elsewhere (from circumstances, end, etc.), the words must be left for the mind. The reason of the law, unless the Prince himself has manifested it as adequate by an act sufficiently public, makes interpretation dangerous, especially since the law is contained not by the reason itself but by the words in which it was conceived (Cf. d'Annibale 1, 186). And because the reason of the law is not the law, unless the reasonable will of the legislator requires it, it is not to be transferred from one case to another on account of similarity. Yet that enlargement can be required by the correlation of cases: what is established concerning the bridegroom of itself holds concerning the bride; by juridical assimilation: thus canonical law equates election and postulation; by connection and virtual comprehension: the faculty of making a testament contains the faculty of leaving a legacy.

To avoid fallacies, these things today must be well attended to: the mind of the law must be known, not the mind of the man who is the legislator. Wherefore the mind of the law, or of the legislator as such, is not the mind or intention which the legislator manifests privately or after the law has been made, but not by a legislative act; nor the mind of the individuals who establish the law collegially; nor the mind of those who prepared or wrote the law. For example, when there is question of the Code of Canon Law, the mind of the legislator is the mind of the Pontiff promulgating it, not of the Commission by which it was laboriously produced. From this, however, aids can be brought for detecting the mind of the law. For example, the mind which the acts of the commission manifest can be presumed to be the same as the mind of the Pontiff who approved the work of the commission.

d) In respect of the kind of interpretation, one law is to be interpreted broadly, another strictly. Indeed no law can be taken so broadly that it is extended beyond both the natural and the juridical sense of the words; nor is it to be interpreted more strictly than the justice of the law and the propriety of the words bear, together with the reason of the law, which also must be preserved. But when, with the propriety of the words preserved, the words can be taken in a twofold use, the broader use produces a broad interpretation, the restricted use a strict interpretation. The word, for example, cleric can comprehend or exclude religious and bishops. In favorable matters, where there is place for broad interpretation, by the name cleric we shall understand religious and bishops also, but not in odious and onerous matters: these require strict interpretation. "Odious things ought to be restricted and favors enlarged ¹."

Which law is to be judged favorable, which odious, must first be drawn from the matter itself. Hence, c. 19: "Laws which establish a penalty, or restrict the free exercise of rights, or contain an exception from the law ², are subject to strict interpretation." And more generally we shall say that laws which immediately impose a burden are to be interpreted strictly, but those which grant a faculty or power, broadly. It can easily happen that there is room for doubt. Thus c. 522, concerning the confessor whom religious women can approach, is interpreted broadly by some, strictly by others. Indeed a law is sometimes favorable in one part, odious in another. Then, if the favor and odium can be separated, there will be place for both interpretations at the same time. Thus the law (which, before the Code, was called the privilege of the canon) by which ecclesiastical persons are protected from personal injuries by a penal sanction is favorable insofar as it protects the persons, odious insofar as it inflicts penalties. Therefore we shall understand broadly the persons protected; strictly, the penalties inflicted. If the odious part cannot be separated from the favorable, the direct intention of the legislator is to be observed: for instance, a concession of a pension by which another's revenues are burdened, which is to be taken broadly. Cf. Palmieri, Op. th. I, tr. 3, n. 68.

But what the Prince has conceded, besides law, from liberality, is to be interpreted most broadly. For it is fitting and contributes to the common good that the Prince be esteemed as inclined to benign liberality.

e) By an allied but proper division of authentic interpretation, interpretation is distinguished as comprehensive, extensive, restrictive. The first renders the true sense of the law: private persons can make this alone; the second carries the law over to a case not previously comprehended, as when what had been established concerning those truly absolving an accomplice was transferred to those fictitiously absolving an accomplice; the third exempts from the law cases which the reasonable understanding of the law comprehended: as when, c. 542, the words "who have adhered to a non-Catholic sect" are said to be understood only of those who have receded from the Catholic faith and then given their name to a non-Catholic sect (Cf. response 7, October 16, 1919, of the Commission for the interpretation of the Code, A.A.S. 1919, t. 11, p. 477. Per. X, p. 101).

¹ Reg. 15 of Law in VI.

² Which law here is to be said to contain an exception from the law is not of very convenient explanation. But the matter belongs to jurists.

— Must an authentic interpretation be promulgated? From the very nature of the matter, an extensive or contractive interpretation must be intimated or promulgated in order to oblige. For it contains a true change of law. But if it has been comprehensive, yet dissipates a true obscurity, some, attending only to natural law, deny the necessity of promulgation, which others affirm. The former argue that here there is no question of a new law, but of an old one which, according to its true sense, had already been promulgated ¹. Others, on the contrary, say that a truly doubtful law is none, and therefore, when it is authentically explained, it needs a new promulgation. Thus Wernz, Ius Decret., I, n. 127. The positive law c. 17 § 2 agrees with this.

¹ Palm., Op. theol. I, tr. 3, n. 465.

— On epikeia. Epikeia is called that interpretation of law by which, contrary to even the clear words of the law, but according to the mind of the legislator, some case is prudently exempted from the disposition of the law. For since law disposes according to that which happens for the most part, in a particular case it can fail, indeed become harmful: which the legislator is reasonably judged not to have willed. Cf. Palmieri, Op. theol., I, tr. 3, n. 469-471.

There is, however, place for epikeia if, in a particular case:

a) The law, understood otherwise, would become inequitable or more grave than is just;

b) If, the usual interpretation being attended to, the legislator is prudently conjectured not to have wished to oblige in such a case. An example of the former cause will be if a heretic whom you are trying to lead to the faith offers you, from a proscribed book, a difficulty to be read and solved at once: it will be lawful to read the passage by epikeia. The latter cause occurs especially in lighter matters, for example in the observance of the rule of silence.

But in natural law, since it is placed in right reason, since it forbids things which are intrinsically illicit, and confirms an order indispensable for men even in a particular case, there is no place for epikeia properly so called. Cf. Suarez, De Legibus, L. 2, c. 16, n. 9 and 10.

— The interpretation of law, or explanation of the sense contained in the law, is not merely verbal declaration.

Authentic interpretation is made by competent authority, whether by law, or by sentence, or by rescript: at least those are obliged to whom the interpretation has been given and imposed.

Usual interpretation is made by custom.

Doctrinal interpretation is made by experts. These must first gather the mind of the legislator, as such, from the words of the law, then from other circumstances, but prudently from the reason of the law.

In respect of the kind of interpretation, it can be broad or strict. Laws which immediately grant a faculty or power are to be taken broadly; laws which immediately impose a burden, strictly; laws which contain a liberal benefit of the prince, most broadly.

Authentic interpretation is distinguished as comprehensive, according to the true sense of the law; extensive, which enlarges the law; restrictive, which diminishes the force of the law. These two latter are to be promulgated. It is disputed whether or not a comprehensive interpretation, if it explains a law objectively obscure, of itself needs promulgation.

Epikeia is an interpretation contrary to the words of the law but consonant with its mind, by which certain cases are prudently exempted, because otherwise the law would become inequitable or too severe. The reason of epikeia is not a defect of the law, but its nature, which can provide only for cases as they happen for the most part. In natural law there is no place for epikeia.

— It is manifest first that to him who has set forth the end and is master of those who are to be ordered to the end belongs the very ordination to the end, so that he is, before all others, legislator. Then, subordinately to him, the ordination belongs to him who must attain the end. Wherefore in a more universal way that holds which St. Thomas seems to have said concerning human power alone: "To order to the end belongs to him to whom that end is proper" ¹.

The end of the whole universe is God. Therefore God himself is demonstrated to be the first Legislator, before whom there is none; supreme, against whom no one can do anything legitimately or validly; universal, from whose command nothing is withdrawn.

Legislators next are those who preside over a community or social multitude.

These are said to represent the multitude, at least in this respect, insofar as they act for it and on account of its good. For the multitude to which the end belongs cannot, as such, act or ordain: as such, it is to be ruled and ordered, so that provision must be made for it by persons distinct from it.

The authority necessary for making an ordination is communicated by God, whether by the very will by which he wills human societies to exist - that is, by the will of the Author of nature ² - or by positive will, by which in the Old Testament he constituted Moses, Judges, Kings; by which in the New Testament he constituted the Church and handed her over to be ruled by Peter and his successors.

Observe that not even in the most perfect democracy can the making of laws belong to the multitude as such. For even where recourse is had to the so-called universal suffrage, however many members of the multitude are kept from sharing in suffrages because of incapacities, whether natural, under which children and the insane labor, or legal, of age, sex, improbity, they have no part in making laws; and matters are decided by some determinate plurality (therefore not by all).

The legislative power itself is delegable; and everywhere, from the supreme authority, by some definite manner of communication or delegation, it passes to others.

¹ In 1, 2, q. 90 art. 3 c. Cf. the commentary of Cajetan.

² But we omit the question concerning the first subject in which civil authority itself inheres.

— There are true human laws. If every legislative power proceeds from God, if of itself it inheres in God alone, therefore this power does not belong univocally to the other legislators and to God; and for a certain true reason God can be praised as the sole legislator, just as he is celebrated by the Church in the chant "Glory in the highest" as the sole Lord.

Nevertheless, because true power of commanding is conferred by God upon men, and there are many things which he himself permits to be ordered and defined by men, laws, from the author from whom they proceed, are truly some divine, others human.

There have been those who would deny to men the true power of causing law, who then would merely posit a condition, on which being posited, an obligation would arise from divine law, so that every right would be divine, either absolutely or conditionately. But a condition, which is sometimes necessary so that a cause may operate, does not assimilate the effect to itself as positive laws made by human authority are assimilated to the will of the human legislator, whether as to that which is commanded, or as to the force by which it is commanded, or as to the time through which it is commanded ¹.

¹ Cf., for example, Schiffini, Principia, n. 608, where he distinguishes cause from condition by this, that condition influences nothing, so that, with an equivalent condition substituted, the causality can remain the same in number.

— Jurisdiction. Furthermore the power of making laws belongs to the power of a more universal character which is called jurisdiction. This is the power of ruling a multitude, or of directing it efficaciously, both through laws and through precepts, judgments, and penalties. And in truth, in all these ways, right is declared, that is, in a general or particular way there is established that which can be demanded under the title of some justice.

— Laws of one commanding illegitimately. Of themselves, laws and sentences ought to be brought forth by legitimate authority. Yet those brought forth also by usurpers will oblige, if these possess the realm peacefully and are tolerated by the commonwealth. The reason is the very necessity of the common good, which requires that the community be able to be efficaciously directed to its end by him who has care of it. The legitimate Prince is judged to have ratified this, or God himself supplies his consent.

Indeed by positive compact, before the most recent war, it had been sanctioned that an invader of territory could issue decrees which, while he occupies the region precariously, would seem necessary for preserving peace.

But beyond that necessity and the reason of his own security he cannot command. The facts themselves clearly demonstrate that abuses can easily be committed in this matter.

— In some true sense, God is the sole Legislator. Dependently upon him, by communicated power, human legislators are also true legislators: these represent the multitude, at least insofar as they act for it. Their will is a true cause of obligation, not a mere condition.

Legislative power is part of the power of jurisdiction, that is, of the power of efficaciously directing a subject community to its end through laws, judgments, and penalties.

Because of the necessity of the commonwealth, the commands of a usurper can also be efficacious, whether from the consent of the legitimate Prince or from God himself.

— All those are obliged by law for whom it has been justly made. A transgression committed by them is, objectively, a material injury of the right order. Yet only those who are actually masters of reason can actually sin against law. By others, however, law can be violated in them, in the manner which will be explained later.

Here the question is only concerning the Author of law himself.

— God, the Best and Greatest, is not properly bound by his laws: since he is outside and above the world of creatures, he is not part of the community for which laws have been made.

The human legislator is part of the community over which he presides. Yet by the coercive force of his law, if we suppose the Prince absolute or endowed with full power, he cannot be coerced: no one coerces himself. But from natural law itself, which sanctions this right order, that the part agree with the whole and the head with the members, he is constrained to observe his own law, insofar as, attention being given to the universality or reason of the law, the law is applicable to him ¹.

And from the same motive by which the law obliges the others, that natural law seems to urge him. Yet the obligation is not judged grave of itself.

Today, however, in civil society, the matter is scarcely practical. For the legislator is not one person, but laws are proposed by the consent of many, who, taken separately, are subjects of the law, so that the consent itself in some manner can be called the legislator. Yet it happens that some immunity from personal coercion is conceded to the Prince: which immunity is called his personal inviolability.

¹ Cf. 1, 2, q. 96 art. 5 ad 3.

— All are obliged by law for whom the law has been made. God, since he is outside the community, is not obliged by his law; but the human legislator is obliged, not as to coercive force, if he is an absolute king, but as to directive force, from the natural law itself urging the obligation of the law, though not of itself under grave matter. Today often nothing remains to the Prince except personal inviolability.

Cf. Cod. iur. can. c. 8-30 and c. 63-86; St. Thomas (S. theol. I-II, q. 90-106); St. Alphonsus (Theol. mor. 1, 99-208); St. Antoninus (S. theol. I, tit. 11-18); Dom. Soto (De iust. et iur. l. 1 and 2); Suarez (De legibus; it is a very copious treatise, but not seldom disagreeing from the doctrine of St. Thomas); Mart. Bonacina (De legibus in gener. et in particul.; it is a very commendable treatise). Among moderns, among others, Bouquillon (Theol. fundam. de lege), D'Annibale (Summul. I, tr. 3), A. Vermeersch (Theol. mor. tom. I, tr. 3) are read with fruit.

141. Preliminary Note. Having considered human acts, it is necessary to treat of the norms of their morality. The norm of the morality of human acts is the eternal law and its application in a rational creature, namely, conscience,¹ or in other words: The supreme norm according to which all human acts must be directed is the eternal law ordained by God. For God is our ultimate end, and in conjunction with Him consists our beatitude, toward which all human acts must tend.² By force of His supreme dominion God has prescribed to us the way by which we can come to Him and to our beatitude. The laws given by Him indicate this way. Not all laws indeed have been given immediately and directly by God, but some are imposed upon us only indirectly and mediately (namely, through a legitimate created authority). But all laws, as many as are just, must necessarily be derived in some way from the eternal law.³ Hence it follows that we cannot attain our ultimate beatitude except by obeying just laws, whether divine or human. - The proximate (subjective) norm of our actions is our conscience or the dictate of right reason; and this norm indeed must agree with and be subordinated to the laws given by God. All human acts are to be regulated from these two norms; if they agree with them, they are morally good; but if they disagree, they are morally evil, or sins. Therefore fittingly after the treatise on human acts there is subjoined the treatise on the norms of morality, and indeed first on the supreme and objective norm, namely, on the eternal law and the other laws deduced from it; and then on the proximate and subjective norm, that is, on conscience.⁴ The whole treatise on laws, which is equally necessary in Moral Theology and in Ecclesiastical Law, we divide into three chapters:

1. On the notion and divisions of law in general;

2. On law given by God, or on divine law;

3. On human law.

¹ Cf. above n. 108.

² Cf. above n. 24.

³ S. theol. I-II, q. 93, a. 3.

⁴ In the work Philosophia moralis et socialis (I, n. 341), the distinguished L. Lehu well proves that according to logical order the treatise on laws is to be placed before the treatise on conscience.

Divine law is threefold, as was said above, namely, eternal, natural, positive-divine. Each must be treated individually.

The treatise on human laws pertains rather to ecclesiastical or civil law than to moral theology. Hence here we touch only the summary heads which are useful to know for a priest exercising the care of souls. But we subdivide this very long treatise into nine articles: 1. on the author of human law; 2. on its object; 3. on its subject; 4. on its promulgation and acceptance; 5. on its obligation; 6. on the manner of fulfilling this obligation; 7. on its interpretation; 8. on its cessation, where there will be discussion of dispensation, privilege, and custom; 9. on civil law and its moral obligation.

St. Thomas, 1.2, q. 90-108; St. Alphonsus, I, n. 90 ff.; ed. G., I, p. 70; Suarez, de Legibus, l. I, c. 1-4; Gonet, Clypeus Theol. Thom., tr. 13, p. 13; Zigliara, Ethica, n. 17, II; D'Annibale, I, n. 160; Kuhlmann, O.P., Der Gesetzesbegriff vom hl. Thomas (Bonn, 1912).

109. DEFINITION. Law (from binding), taken in the broader sense, is a rule according to which something ought to be done.

But moral law, which directs the free actions of man, is more precisely defined by the Angelic Doctor: An ordination of reason for the common good, promulgated by him who has care of the community (1.2, q. 90, a. 4).

It is called 1. an ordination, that is, a prescription or command, which strictly obliges. In this matter it differs from COUNSEL, in which there is only directive and suasive force. Therefore obligation pertains to the essence of law, or that moral necessity by which free will is bound to doing or omitting something.

2. of reason. For an ordination or precept, although it proceeds from the will of the Superior, nevertheless essentially requires also a judgment of the intellect, by which judgment the will, in prescribing, is rightly directed. Indeed no law can consist unless it is consonant with reason. Hence, in relation to the legislator, law is right reason of commanding; but in relation to subjects it is "right reason concerning things to be done" (H. Ap., II, 1).

3. for the common good. For the end of law is good, not indeed the private good of the Superior or of the subjects, but the common or public good of society. For it is contrary to right reason that the whole society be ordered to the advantage of one or only some, and that the whole be referred to the part.

For the rest, while each one procures the common good, he necessarily also consults his own proper good, at least spiritual; for the intention of the legislator (as St. Thomas teaches with Aristotle) is to make the subjects good (Contr. Gent., l. 3, c. 115, n. 3).

4. by him who has care of the community. For the faculty of making laws stands with him to whom the preservation and governance of the community pertains. Now by the name of community we understand a perfect community, namely one capable of political government, such as the Church, a kingdom, or a province of its own right. For, in order to make a law, domestic or dominative power is not sufficient, as Suarez says (l. I, c. 9, n. 4), such as men enjoy over a wife, a father over children, a master over servants (which power grants only the right of imposing precepts); but that public power of governing and coercing is necessary which is designated by the name jurisdiction (cf. n. 138).

5. promulgated. For promulgation pertains to the essence of any law which has the force of obliging, as St. Alphonsus (l. c.) demonstrates at length from St. Thomas. And the principal reason is that since law is a rule to which the community must conform itself, it must be proposed in such a way that it becomes known at least to the greater part of the community (cf. n. 158).

110. From these things you will gather: 1. LAW differs from a simple PRECEPT or mandate: a) by reason of the one commanding, because the legislator is a public person, but one prescribing can be a private man, possessing domestic power; b) by reason of the subject, because law is imposed on the community as such, and on individuals insofar as they are parts of the community; but a precept is imposed on private persons; c) by reason of the end, because law proximately and primarily regards the common good, but a precept the private good; d) by reason of extension; for since law is made for the community as such, if the community is contained in a certain place, law does not oblige outside this place. The contrary is had in a precept, which, because it affects the person, accompanies him wherever he goes, and, as they say, clings to his bones; e) by reason of stability; for a precept is transitory, and expires by the death or removal of the one commanding, unless the matter is no longer intact, or unless the precept concerns privileged causes, as pious causes are in Roman law. But law, by its nature, is perpetual: for it is established for the favor of the community which, as such, is not subject to death (I, 140; Reuter, P. I, n. 127; D'Annibale, I, n. 248).

111. 2. In order that a law (precept) oblige, it is required: a) on the part of the MATTER: alpha) that it be honest, that is, conformable to right reason and not contrary to divine law; beta) just, that is, that it proceed from legitimate power, not injure the rights of subjects, nor impose disproportionate burdens; gamma) morally possible, that is, that, for the circumstances of places and times, it not be too difficult to observe; delta) useful, that is, that it truly and notably conduce to the public good; b) on the part of the FORM, it is required that it be: alpha) manifest or clear; beta) promulgated, as we have already noted (n. 109). These things will be explained more fully below (n. 154).

Note. A precept can be imposed both by force of dominative power and by force of jurisdiction (cf. n. 14). In the first case, the transgressor sins against obedience alone, because the Superior, using such power, merely intends the subjection of the subject. In the second case, he ordinarily sins against only the virtue whose good is injured, because jurisdiction is an authoritative means for procuring the good of virtue.

112. DIVISION. Law is distinguished: 1. By reason of the object, into affirmative, which commands that an act be placed, and negative, which orders that an act be omitted. They differ between themselves in that affirmative law indeed obliges always, but not for always; but negative law obliges always and for always. And the reason is that, at any time whatever, we are bound to abstain from every evil, not however to do every good.

2. By reason of the legislator, into natural and positive. Natural law is that which becomes known to man from the very light of reason. To this belong, if you except the circumstance of the Sabbath (or Sunday), all the precepts of the Decalogue. Positive law, which is subdivided into divine and human, is that which proceeds from the free will of God or of men, and depends on it; for example, the law concerning Baptism, concerning the Lenten fast, etc.

This indeed is not dictated by nature, but is conformable to the law of nature, and especially differs from it in this: that those things which are prohibited by natural law are therefore prohibited because they are evil; but those things which are prohibited by merely positive law are therefore evil because they are prohibited (I, 101).

And these are the principal divisions of law (cf. n. 113 and 136). But since the formal notion of law comes in the first place from the legislator, hence it is why, according to the diversity of the legislator, namely divine or human, we judge that the present Treatise must be divided into two Dissertations, in one of which there will be treated OF DIVINE LAW, but in the other OF HUMAN LAW.

113. Divine law is twofold, namely natural and positive. Now natural law is usually considered under a twofold aspect: 1. insofar as it is eternal, existing in the mind of God; 2. insofar as it is promulgated in time, and existing in creatures. Although positive divine law has been given through a decree which existed from eternity, nevertheless, strictly speaking, it is not called eternal; because, as we shall see below, it does not participate in the same necessity or immutability as natural law. Therefore we shall treat: 1. of eternal and natural law; 2. of positive divine law.

St. Alphonsus, I, n. 57 and 70; ed. G., I, p. 26 and 41 ff.; H. Ap., I, 50; Billuart, Diss. II, a. 2-4; Gonet, Clypeus Theol. Thom., tr. VI, disp. 3; Leroy, Religion des Primitifs; Huby, Manuel d'histoire des Religions; D'Annibale, I, n. 190.

114. DEFINITION. Eternal law, in a broad sense, is defined by the Angelic Doctor (1.2, q. 91, a. 1): "The reason of the order of things to the end." By this word order is comprehended every order which is had in the world, namely physical and moral, natural and supernatural.

But in a stricter sense, eternal law is defined by St. Augustine (Contr. Faust., l. 22, c. 27): "The divine reason or the will of God, commanding that the natural order be preserved and forbidding that it be disturbed."

115. PRINCIPLES. I. There is in God eternal law. It is evident 1. From Sacred Scripture, especially Prov. 8:23: From eternity I was ordained, etc.; where those things which are said of wisdom, according to the interpretation of doctors, are to be understood of eternal law, which rules and moderates all things. It is proved 2. From reason; for this teaches that there exists in the world a certain natural, or essential, order, which arises from the very natures of things, for example, that between God and man there intervenes the relation of Creator to creature, of Lord to servant, etc. Now God, who cannot deny himself, necessarily wills that an order of this kind constituted by him not be disturbed, but be preserved. But this most ordered and immutable will of God most rightly receives the name ETERNAL LAW (Suarez, de Leg., l. 2, c. 3).

116. II. Eternal law, as such, is not law properly so called, but is the reason and source of all laws.

We say 1. It is not law properly so called; as not having been proclaimed to subjects, who did not exist from eternity. Hence St. Alphonsus with Sylvius (I, n. 71): "Eternal law," he says, "was from eternity law materially, not formally, or under the notion of law actually obliging."

In another place (I, n. 70; ed. G., I, p. 41) the Holy Doctor says: "Eternal law, with respect to men, is not proper law." For proper law, as to them, is natural law.

2. It is the reason and source of all laws. For every law, whether divine or human, receives the force of obliging from the fact that order, or eternal law, demands that subjects obey Superiors prescribing just things.

Nor does it stand in the way that positive laws, especially human laws, are mutable; for eternal law itself establishes that, according to the changed conditions of times, places, and persons, these laws are changed.

117. III. All human things, although in a diverse way, are subject to eternal law. For eternal law is the reason of divine governance: therefore whatever things are subjected to divine governance are also subjected to eternal law; accordingly all things are subjected to this law. But this subjection happens in a twofold way: in one way insofar as eternal law is participated by knowledge, by which a certain rule, which is a principle of acting, is impressed on the mind; in the other way insofar as it is participated by the natural inclination implanted in creatures, by which they are moved by divine providence. In this latter way irrational creatures are subjected, but rational creatures are subject in both ways. For in these there is both a certain notion of eternal law and a natural inclination to that which is consonant with this law.

Yet there is a distinction between the good and the wicked. In the wicked, the natural inclination to virtue is depraved through vicious habit, and the natural cognition itself of good in them is darkened through passions and habits of sins. Therefore the manner of subjection in the wicked is imperfect. But in the good a more perfect subjection is found, because both above the natural cognition of good there is superadded to them the cognition of faith and wisdom, and above the natural inclination to good there is superadded to them an interior motive of grace and virtue. Yet among the wicked, as much as is lacking on the part of action is supplied on the part of passion; namely insofar as they suffer what eternal law dictates concerning them, insofar as they fail to do what agrees with eternal law. Therefore whoever does not hold order, is held by order. Cf. St. Thomas, 1.2, q. 93, a. 6.

118. Note. Eternal law is the remote rule of morality, whether of our intellect or of our will. For through it, or through its light, we judge all things; but we cannot judge it, because it is infinite and incomprehensible, nor can any created intellect reach so far as to contemplate perfectly and from every side what the order of things is toward God. Hence, since sin turns aside from this order, we can never perfectly inspect its intrinsic and total malice.

Three things come here to be considered, namely of natural law: 1. existence and object; 2. promulgation and cognition; 3. immutability.

119. DEFINITION. Natural law (which is also called natural right) is the ordination of God commanding that the natural order be preserved and forbidding that it be disturbed, known through natural light. It is eternal law itself, insofar as the rational creature participates in it.

Therefore human reason is not the source of law, but is the faculty by which law is known (Dichiar. del sistema, n. 19). Hence this 3rd proposition of the Syllabus was proscribed by Pius IX: "Human reason, with no regard whatever had to God, is the sole arbiter of true and false, of good and evil; it is a law to itself, and by its natural powers suffices for caring for the good of men and peoples." The saying smells of insanity: Thus I will, thus I command, let will stand for reason, if indeed it is understood absolutely and without restriction.

DIVISION. In natural law primary and secondary right are distinguished. Primary, or absolute, is called that whose matter has an immediate connection with the essence of God; so that not even indirectly, through added circumstances, can it be changed: for example, you shall not swear falsely, you shall not blaspheme, you shall not tell a lie. Secondary, or hypothetical, is that whose matter concerns created things; which for that reason can be changed indirectly by the dominion over things, namely by God (or also by man, according to the need of the common good): for example, you shall not kill, that is, by private authority; you shall not commit theft, that is, as long as the thing will have been another's. Suarez, de Leg., l. 3, c. 13, n. 5.

120. PRINCIPLES. I. Natural law exists. It is evident from the words of the Apostle (Rom. 2:14): The Gentiles who do not have the law (that is, the Mosaic law), naturally do those things which are of the law; not having a law of this kind, they are a law to themselves: who show the work of the law written in their hearts, their conscience bearing witness to them, and their thoughts among themselves accusing or also defending.

121. II. The object of natural law is everything which so agrees with or repugns to rational nature that, for the preservation of order, it is necessarily prescribed or prohibited by the very Creator of nature. In other words: to the law of nature belong all precepts to which, from the nature of the thing and independently of any positive law whatever, we are bound. This is evident from the very definition of natural law.

"The ORDER OF NATURE is in this," says Reuter (P. I, n. 29), "that a rational creature have himself duly toward God, toward the neighbor, toward himself, and toward other creatures. Now the order toward God requires that he render faith to divine wisdom and veracity; hope and trust to benignity, mercy, omnipotence, and fidelity; love to the highest goodness; ... subjection and obedience to supreme jurisdiction, etc., and that he avoid the opposite vices. The order toward the neighbor requires that he love him, revere parents, obey Superiors, render to each his own, ... exercise the other virtues for an ordered society, and flee the vices opposed to these. The order toward himself requires that appetite be subjected to reason, and reason to God and Superiors. Finally, the order toward the remaining creatures demands that the rational creature use them rightly, as means to the end, and not expend on the means the love due to the end; nor turn them aside from the end to which by their nature and God's intention they are ordered" (cf. n. 379 ff.).

122. From these things it is inferred: 1. All acts of virtues belong to the law of nature insofar as in general they are virtuous: for reason dictates that each one act virtuously, even in a merely lawful and indifferent matter. But if the acts of virtues are considered according to themselves, and in their proper species, not all are of natural law. For this does not prescribe all actions conformable to order, but only those which are necessary for the preservation of order, and whose omission is base. Thus, for example, certain virtues, such as virginity and evangelical poverty, can be omitted without sin. Likewise, there are many acts of virtues which are of themselves mere counsel, and are prescribed only by positive law, such as abstinence from meats, and similar things (St. Thomas, 1.2, q. 94, a. 3).

2. All sins are against natural law, at least reductively and mediately: for whoever transgresses a positive precept of God or of man, by that very fact violates the order of reason, and the law of subjection which is required by nature (cf. n. 316).

123. PRINCIPLES. I. Natural law is promulgated and begins to oblige as soon as man obtains the use of reason. For natural law arises from the essences of things and from the divine perfections: therefore, as soon as man, using reason, knows God and the essential relations to him, which is to use reason, he knows natural law, and is bound to observe it. But until the use of reason is present, natural law remains promulgated only in first act, through the connatural habit of first principles (cf. H. Ap., I, 53).

124. From these things you will gather: 1. Since the promulgation of natural law becomes known through the light of reason, by that very fact it is subject to the imperfection of human reason. Hence, in order that law can be known integrally, easily, without doubt and error, another and more perfect promulgation is morally necessary; this is made both through the supernatural revelation of God and also through the infallible magisterium of the Church.

2. "The promulgation which obliges (in second act) is made when the creature knows the precept by the light of reason, or hears it from the Church, or from wise men who teach him" (H. Ap., I, 50).

3. Those sin who induce the insane, or children not yet capable of reason, to something which is against natural right (H. Ap., II, 36). For children and the insane, although they cannot sin formally, nevertheless in act they are in first act subject to the laws of nature. Hence blasphemy, for example, or a base act, is in them a material sin; and formally guilty of this is he who compels them to such a deed, or exhorts them to it. Cf. Lehmkuhl, I, n. 226. See below n. 193.

As to sins of deed, there is no difficulty. As to sins of speech, or of this sort, which require advertence and knowledge, it must be said that, if sin is lacking under the head of the delict to which they are induced, nevertheless it is present under the head of the depraved habit which is introduced into the insane, or under the head of scandal. Cf. Sweens, n. 408; Reuter, Neo-Conf., p. 100.

125. II. Natural law is always sufficiently promulgated as to first principles; it is sometimes unknown as to nearer conclusions; it is often unknown as to remote conclusions. So commonly against traditionalists and rigorists.

Once ignorance of fact has been admitted, by which namely man, generally conscious of the law, does not know that this or that is contained under the law, or does not advert to this, the question is made concerning ignorance of right, that is, of obligation. For this the precepts of natural law are divided into a threefold class (H. Ap., I, 5). The first embraces universal principles of morals which are known of themselves and are dictated by synderesis: for example, "good is to be done, evil avoided; what you do not wish to be done to you, do not do to another." These principles can by no means be unknown by a man capable of reason, and are indelible in each one, because they are innate through synderesis. The second comprehends immediate conclusions, deduced from the first principles with moderate consideration, such as most of the precepts of the Decalogue. Concerning these there is not given invincible ignorance, except among the uncultivated and for a brief time, or unless a circumstance apparently rendering honest has been added, for example, as to an officious lie. The reason is that such things become known to all by the very light of nature and do not require an intricate reasoning, which nevertheless can fail in a case, for example among uncultivated peoples. The third extends itself to mediate or remote conclusions, which, through a subtler discourse, are deduced from the precepts of the Decalogue; such as are the precepts concerning not entering into usurious contracts

usurious, concerning avoiding certain scandals, and similar things. These indeed can be invincibly and inculpably unknown, and often are unknown even by holy and learned men, as is clearly proved from so many and so great controversies which have existed, and still exist, among the doctors themselves in every matter, where definitions of the Church either are desired or are not known.

Everyone knows the text of St. Augustine (de Serm. Dom. in monte, l. 1, c. 16, n. 50), where he doubts whether a wife, with the consent of her husband, in certain circumstances, ought to commit adultery. Thus also many could, at least for a time, believe that civil divorce dissolves the bonds of matrimony, or, in places where public prostitutes are permitted, come to this, that they admit fornication is not so great a crime. Cf. Genicot, I, p. 113; Cathrein, Philos. mor., n. 178.

126. THE RIGORISTS OBJECT. God is faithful; he has promised to hear the one praying. If therefore we do not obtain light, we are at fault.

Resp. If we do not obtain light for avoiding formal sin, we are at fault, I concede; if we do not obtain light for avoiding material sin, we are at fault, I deny. Just as there is given a twofold sin, one material, the other formal, so two kinds of light must be distinguished. One light, by which material sin is avoided, is the cognition of the individual things which God commands or forbids. This light God has by no means promised to the one praying, as not necessary for salvation, since material sin does not involve an offense of God. The other light, by which formal sin is avoided, is an illumination of divine grace, by which we know the foulness of sin and the price of divine friendship, and are inclined to carry out that which conscience dictates has been commanded by God. This light God has promised to the one praying, and will never deny it (I, n. 174; ed. G., I, p. 156).

127. PRINCIPLES. I. Natural law is subject to no change properly so called.

And indeed, a change of law is made either from within or from without: it is made from within when a law, previously reasonable and useful to the common good, afterward becomes unreasonable and harmful; but it is made from without when a legitimate Superior either derogates from it, or abrogates it totally, or finally dispenses subjects from it.

Now, natural law can be changed in none of these ways. 1. It cannot be changed from within; for by natural law those things are prescribed which necessarily flow from the essential relations of man, and those things are forbidden which are altogether opposed to the same essential relations. But the essential relations of man are immutable, as are the essences of things. Therefore.

2. It cannot be changed from without, not even by the authority of God the Supreme Legislator. For God cannot will the nature of things and not will those things which necessarily follow from it, because "he cannot deny himself" (2 Tim. 2:13). Therefore natural law, in those things which it prescribes or forbids, is absolutely immutable (Tongiorgi, Philos. mor., n. 179).

128. II. Natural law is subject to change improperly so called.

This change is made either by addition, namely when a new law is superadded to a law; or by subtraction of matter, namely when that which was the matter of a law ceases to be the object of the same law, on account of some supervening circumstance which changes it.

1. Natural law can improperly, or indirectly, be changed by addition. And in truth, many precepts have been added to it through positive laws, whether divine or human.

Thus, by natural right, the suretyship of a woman is valid, likewise marriage without witnesses is valid, etc.; and nevertheless by force of positive law they can be invalid. The reason is that these pertain only negatively to natural right, since natural law establishes nothing positively concerning them, but permits the same things to be done in this or that way.

2. It can also be changed indirectly by subtraction of matter, or rather by change of matter, namely in those precepts whose matter is subject to the dominion of God or of man.

Thus, for example, matter was subtracted from natural law when God commanded Abraham to sacrifice his son, or granted to the Hebrews the spoils of the Egyptians, or gave a precept of exterminating all the Canaanites. The same is done when God, or the Church in the name of God, dispenses in vows or oaths. For, when a just cause is present, God is judged to remit to man his debt as his proper lord, and thus to take away the vow by taking away the matter of the vow (Billuart, de Leg., Diss. 2, a. 4; Theol. Mechlin., de Leg., n. 38).

129. From these things you will gather: It is less rightly said that natural law ceases, has an exception, admits an excusing cause or interpretation, when, circumstances having changed, it no longer brings forth the same obligation (I, 174). Thus, for example, the obligation of fraternal correction does not cease, although it does not oblige here and now, if no fruit of amendment is hoped for; the obligation of returning a deposit and preserving a secret always urges, although, if grave harm to an innocent person or to the republic threatens from this, such and such a person becomes immune from this obligation. Cf. n. 216.

Christ. Pesch, Prael. Dogm., t. 5, n. 455; Lehmkuhl, I, n. 291; Tanquerey, II, n. 234; Piscetta, Theol. mor., n. 287; Genicot-Salsmans, I, n. 123.

130. DEFINITION. Positive divine law is a law freely and externally given by God as author of grace, which directs man to the supernatural end.

A law of this kind, according to St. Thomas (1.2, q. 91, a. 4), is NECESSARY for the direction of our life; both on account of the insufficiency of human law and also of natural law, and especially on account of man's destination to a supernatural end.

And hence it is that positive law of God is found in every state of human nature: 1. in the state of innocence, matrimony, and this one and indissoluble, was positively instituted by God; besides, the law was given to the first parents concerning not eating the fruit of the tree of the knowledge of good and evil; 2. in the state of fallen nature, from Adam until Moses, there was both the law forbidding the use of flesh with blood and the law imposing circumcision on the family of Abraham. Hence, when it is said that then there was only the law of nature, the sense is that there were not those many laws promulgated through Moses and consigned to letters; but a few, received and preserved through tradition. Reuter (P. I, n. 138, 2, end).

DIVISION. A twofold positive law of God is especially distinguished, namely: 1. the old Mosaic law; 2. the new or Evangelical law.

131. The Mosaic law is a supernatural law, given by God through Angels and promulgated through Moses, so that the Israelite people, in honor of Christ, might be peculiarly sanctified and disposed for his advent. Its character was particular. These things are evident from Sacred Scripture, especially from the Epistle to the Galatians.

It will suffice to note the following here: 1. The Mosaic precepts were of three kinds, namely moral, ceremonial, and judicial. The MORAL precepts ordered man toward God, toward himself, and toward others. These, if you except the circumstance of the Sabbath, are altogether the same as the precepts of the law of nature. The CEREMONIAL precepts regarded the external worship of God. All the ceremonies figured the mysteries of the new law, and concerned sacrifices, Sacraments, sacred things, and legal observances. The JUDICIAL precepts dictated the relations of men among themselves, and defined in what way justice was to be exercised toward the prince, fellow citizens, domestics, and foreigners.

2. The old law, as to moral things, remains forever; but as to the rest, which regarded only the Jews, after the death of Christ, or certainly after Pentecost, it is abrogated and dead. The first is clear from the fact that those precepts belong to natural law, and because it was defined by Trent (Sess. VI, c. 19) that Christians are bound by the ten precepts. The second is evident from the whole Epistle of St. Paul to the Galatians, and from the constant doctrine of the Church. The old law is deadly (therefore prohibited under mortal sin) only as to ceremonial things, since these signified the Messiah to come.

132. The Evangelical, or new, law is a supernatural law justifying of itself, founded by Christ, promulgated by the Apostles, obliging all men until the end of the age. Its character therefore is universal.

It is called 1. new, both with respect to the old law, and because it renews man through grace; 2. founded by Christ, not written, but given orally, and then transmitted both through Scripture and through Tradition; 3. promulgated by the Apostles, and indeed solemnly, on the day of Pentecost, and then successively spread through the whole world; 4. justifying of itself; for the Sacraments from the work worked produce grace, or perfect justice, and not only legal justice; 5. obliging all men until the end of the age, because no one can obtain eternal salvation except through it. Hence all non-baptized persons, as soon as they come to sufficient knowledge of it, are bound to embrace it.

133. PRINCIPLES. I. The Evangelical law is a true law, containing precepts both sacramental and moral.¹ 1. It is a true law, as is evident from the words of Christ (Matt. 28): Going, teach all nations... teaching them to observe all things whatsoever I have commanded you. And from the Council of Trent, Sess. VI, can. 19, 20, and 21. 2. It contains sacramental precepts, or those pertaining to worship, that is, the Sacrifice of the New Law and the sacraments. 3. It contains moral precepts, and indeed in a twofold way: a) Some belong to the essence of Christian perfection and regard works directly necessary for salvation. For certain works have a necessary fittingness or contrariety to interior grace, and therefore are prescribed or prohibited by the new law, as St. Thomas notes (1.2, q. 108, a. 1). All these Christ, from the old law, renewed, confirmed, perfected, and vindicated from various errors of the Jews. See the little work of St. Alphonsus, Cond. ammir. della div. Provvid., P. II, c. 1, n. 4-12. b) Others belong to integral perfection, and regard those who desire to be joined to Christ in a stricter way.

Therefore to the new law belong also the EVANGELICAL COUNSELS, not in the sense that they are obligatory, but that they themselves conjointly with the precepts constitute divine right; which right can be attacked by no human power, nor taken away, nor changed. These counsels are reduced chiefly to three, namely to poverty, chastity, and obedience. But their end is to procure perfect observance of the commandments, to lead Christians to the highest perfection and to a high grade of glory, and to manifest to the nations that splendid mark by which alone the Church of Christ shines forth, that is, the mark of her sanctity.² See the treatise on the Religious State.

134. II. The Evangelical law is perfect, nor will another more perfect law succeed in its place. So all with St. Thomas (1.2, q. 106, a. 4). It is evident from the words of the Lord (Luke 21:33): Heaven and earth will pass away, but my words will not pass away; and from Matt. 28:20: Behold, I am with you until the consummation of the age. Nothing can be nearer to the ultimate end than the new law, which immediately introduces into the ultimate end. Hence the following 5th proposition was deservedly condemned in the Syllabus: "Divine revelation is imperfect, and therefore subject to continuous and indefinite progress, which corresponds to the progression of human reason."

135. IT IS ASKED. Whether the Supreme Pontiff can dispense in positive divine right?

A twofold divine right is distinguished: one which obliges immediately and of itself, independently from every previous consent of the will of man, for example, the laws of not swearing falsely, of preserving the matter and form of the sacraments. But the other is that which concerns pacts and obligations which are introduced through the human will, for example, the law of standing by promises. With these things noted beforehand, we say with St. Alphonsus, VI, n. 1119 (cf. ibid., 902, 1101):

1. It is certain that the Pope can dispense in divine right which arises from the human will, as in vows and oaths; for then, although he does not take away the natural obligation of fidelity toward God, nevertheless on the part of God he remits the obligation made to him and declares that it is pleasing to God that the vow, or oath, not be observed.

It is therefore a condonation of obligation rather than a dispensation; nevertheless the use of the word can be retained, because the Supreme Pontiff, as a faithful dispenser, in the person of God, determines what is acceptable to God. Thus commonly with St. Thomas (in Sanchez, de Matrim., l. 8, disp. 6, n. 2; cf. H. Ap., II, 56).

2. The more common and more probable opinion denies that the Pope can dispense in those things which are of absolute divine right, that is, which are derived from the divine will alone. The Angelic Doctor teaches this openly (1.2, q. 97, a. 4, ad 3): "In the precepts of divine right, which are from God, no one can dispense except God, or he to whom he himself would specially commit it." "But this special commission," St. Alphonsus continues (l. c.), "is not had from the words: Whatever you shall bind, etc.; so much the more because dispensations of this kind in divine right would be harmful to the unity and stability of the Church."

3. "The Doctors say very probably that the Pontiff can in some particular case, not now dispense, but declare, as Doctor of the Church, that divine right does not oblige. The reason is that this power is necessary on account of the variety of human affairs: otherwise, God would not have provided sufficiently for the good government of the Church." Suarez, de Leg., l. 10, c. 6, n. 7, 9 ff.; Benedict XIV, de Synodo, l. 7, c. 1, n. 7, consent. Cf. H. Ap., II, n. 55-56.

136. DEFINITION. Human law is that which is made by men having care of a perfect community, for the good of subjects.

The institution of human laws is necessary for several reasons: first, so that the good proper to the community itself may be promoted (for to this laws are principally and of themselves ordered); then, so that divine law may be better known; finally, so that, strengthened by temporal sanction, it may be observed more perfectly (St. Thomas, 1.2, q. 95, a. 1).

DIVISION. Human law is one thing ecclesiastical, another civil, another of nations.

Ecclesiastical law is made by the rulers of the Church, by force of that jurisdiction which has been divinely granted: this regards first of all the spiritual and supernatural happiness of subjects.

Civil law is established by the presidents or chief men of civil society, by force of secular and natural jurisdiction, and regards the temporal happiness of subjects.

The law of nations is that which has been established and received by the consent of all nations. It is also called international right. Now this right is either primary, by which name is designated natural right itself accommodated to nations, for example, an unjust war is not to be waged; or secondary and accepted in a stricter sense, by which name are indicated those things which, by the usage and custom of nations, on account of common necessities and mutual relations, have been adopted. Cf. Suarez, de Leg., l. 2, c. 17-20; Kenrick, Theol. mor., tr. V, de Jure gentium; Liberatore, Instit. Ethicae, l. 3 throughout; Cathrein, Moralphil., I, 8 B, 6 K. Thus several things are judged to be of the law of nations which have been sanctioned concerning war and the manner of waging war; likewise the reception and inviolability of ambassadors, the commerce of letters, free trade with foreign nations, and similar things. Today there is commonly added the prohibition of all slavery strictly so called; the prohibition of injuring private goods in war, unless perhaps some things are excepted in naval war; free navigation on any sea (cf. Lehmkuhl, I, n. 287).

Now with every disputation concerning the law of nations passed over, as being alien to our scope, we shall discuss the other human laws. But so that the order of things may be preserved, we shall treat: 1. of the institution of laws; 2. of their promulgation; 3. of the interpretation of laws; 4. of the obligation of law; 5. of the causes removing the obligation of law; 6. of the causes removing the law itself.

St. Alphonsus, I, n. 104; ed. G., I, p. 83; Wernz, Jus Decret., II, n. 755; Bargilliat, Prael. Juris can., tr. IV.

137. Laws are instituted in first act, so that they can oblige, when they are established by the legislator himself; in second act and effectively, so that they oblige, when they are promulgated. Here the matter is only of the first institution.

Now, human law, in order that it can oblige, must be made by one having power, upon subjects, concerning possible and fitting matter. Therefore the following must be discussed: 1. concerning legislative power; 2. concerning the matter or object of law. The subject will be treated in chapter IV, where the obligation of law is treated (cf. n. 193 ff.).

138. NOTIONS. Legislative power is the legitimate authority of making laws. It is a certain species of jurisdiction, whose notion therefore must be set forth beforehand.

JURISDICTION (from right and to speak) is the faculty of someone having public authority and eminence over others, for their rule and governance. Therefore every act which a Superior exercises from a public office belongs to jurisdiction, such as to make laws, to dispense in them, to judge, to punish, etc. (Polman, l. 2, n. 495).

DIVISION. It is divided 1. Into civil and ecclesiastical. The former concerns secular causes and the temporal governance of the republic. The latter regards causes pertaining to the worship of God and spiritual good.

This, by reason of origin, is either of divine right or of merely ecclesiastical right. It is of divine right if it has been granted immediately by God, as the power of the Roman Pontiff, or at least if it has been divinely instituted, as the power of a Bishop; but it is of merely ecclesiastical right if it has been given from the ordination of the Church, for example, through law or privilege, as the authority of a regular Prelate, Vicar general, etc. Now, by reason of OBJECT, it is of the internal or external forum. Jurisdiction of the internal forum (or of conscience) has for its object causes which regard the relations of man to God alone, for example, to absolve from sins, to dispense in vows, in occult things, etc. It is ordered primarily and directly to the advantage and governance of the individual, whether it is exercised in the penitential forum or outside it. Jurisdiction of the external forum has for its object causes which regard the relations of man to the external community of the Church, for example, to confer benefices, to dispense in a public irregularity. It is ordered primarily and directly to the good of the community.

2. Into contentious or judicial jurisdiction and voluntary or extrajudicial jurisdiction.

The former is ordered to settling lawsuits, and must be exercised according to the rules prescribed by law. It belongs to this to define civil and criminal causes, which demand their own tribunal, to decree penalties, etc. It is called contentious from the contention of the parties. The latter regards ordinary governance and is exercised according to prudent judgment, according to rules of equity. It belongs to this to legitimate, to adopt, to dispense, to confer offices and benefices, etc. This can also be exercised validly, indeed (at least for the most part) lawfully, outside one's own territory. But contentious jurisdiction cannot be exercised in another's territory unless the explicit or at least tacit consent both of the judge of this place and of the contending parties themselves is added.

3. Into ordinary and delegated.

Ordinary is that which belongs to someone by proper right, by reason of office or dignity, to which it has been stably annexed by force of some law, custom, or privilege, such as is the jurisdiction of the Supreme Pontiff, of a Bishop, of a regular Prelate, etc. Delegated is that which is not had from proper right, but which is legitimately given by one having ordinary jurisdiction.

These things concerning jurisdiction having been premised, let us speak: 1. concerning the author of ecclesiastical law; 2. concerning the author of civil law.

139. PRINCIPLES. I. The Pope can make laws for the whole Christian world. For it is of faith that the Roman Pontiff has, by divine right, supreme, universal, and immediate jurisdiction in the Church. "For he is the head of the whole Church, Father and Doctor of all Christians, and to him, in Blessed Peter, the full power of feeding, ruling, and governing the universal Church was handed down by Our Lord Jesus Christ." Thus (after the Council of Florence) the Vatican Council (Sess. 4, c. 3).

140. The Roman Pontiff ordinarily establishes and promulgates his decrees through the Roman Congregations.¹ "By their voice," says Benedict XIV (Instit. 107, n. 6), "the Apostolic See declares its opinions" (cf. n. 169). But this must be noted, that the decrees of the Roman Congregations, if you except comprehensive declarations of laws, do not acquire the force of law unless the supreme confirmation of the Supreme Pontiff and the command of promulgation have been added. One Congregation can be excepted, namely the Congregation of Sacred Rites, which of itself, even when the Supreme Pontiff has not been consulted, has the right of establishing laws, as is drawn from the decree of May 23, 1846 approved by Pius IX. It is said: can be excepted, because there are not lacking those who deny this (Heiner, Kath. Kirchenr., 1912, p. 275), or admit it only with restriction (Piscetta, Theol. mor., I, n. 297).

The Constitution Sapienti consilio, issued by Pius X on June 29, 1908, clearly circumscribes the competence of each Congregation (cf. A. A. S., I, p. 9 ff.).

Law is the external and remote rule of human acts, just as conscience, or the practical dictate of reason, is the internal and proximate rule of the same acts. We must treat 1° of laws in general, 2° of the principal species of laws.

We shall speak of the nature of law - of the author - of the object and subject - of promulgation and acceptance - of obligation - of interpretation - of dispensation and cessation.

97. • Definition. Law is defined by St. Thomas:¹ "A certain ordinance of reason" (stable) "for the common good, promulgated by him who has care of the community."

It is called: 1) an ordinance, that is, a prescription, and in this law differs from counsel; 2) stable, because law is not extinguished with the legislator; 3) of reason, that is, according to right reason; otherwise it would not be worthy of man, as being deficient from rectitude. Hence law must be possible, honest, just. See n. 100, 1°, 2°, 4°; 4) for the common good, for example, the preservation of society, public peace, the coercion of crimes, the extinction of lawsuits, and similar things. Namely, the common good is the direct and immediate end of law; but a particular good is (at least generally or ordinarily) the end of a precept, although mediately and indirectly law tends to the private good of each one, and a precept tends to the common good, insofar namely as both the common good of all redounds to the good of individuals, and conversely; 5) by him who has care of the community; for since to make laws is an act of jurisdiction, they cannot be made except by him who possesses such authority, or by the superior of the community; 6) promulgated, because promulgation pertains to the nature of law, or at least is its necessary condition; otherwise law would be constituted in vain, since what in no way becomes known cannot be fulfilled.

98. • Hence a multiple distinction intervenes between law and precept, although they are everywhere used indistinctly, as when we call the divine laws handed down to Moses on the mountain the precepts of the Decalogue. They differ namely:

1° By reason of the end, because the end of law is the common good; of a precept, the private good, in the sense however declared above.

2° By reason of the one commanding; for law is made by a public person for the whole community; but a precept is made by a person who indeed is superior, but either a private person over private persons, as by a master over a servant; or even a public person, but acting with private and singular persons, as a Prince with some one of his subjects, or with some particular assembly.

3° By reason of the subject; for law is extended even to future persons; a precept, on the contrary, comprehends only those present. The reason is that law is made for the community, which always endures, although its members are changed; hence it is clear that future persons also are obliged by law, namely as soon as they begin to be parts of the community. But since a precept adheres to a singularly determined person, when the person is extinguished, the precept also must be extinguished.

4° By reason of stability; for law of itself is perpetual, and lives even when the legislator is dead; but a precept expires by the death of the one commanding. This follows from the things said under 3°. Hence if a superior had prohibited some particular person from going out of the diocese without license, when the superior died this prohibition made against him would cease for the future. On the contrary, if by a general law he had prohibited this to all subjects, even when the superior was dead the law would remain in its first force.

5° By reason of extension; because law, since it is made for a community as such, if that community is local, does not oblige outside its territory; but a precept, since it is given to a person, accompanies him everywhere and adheres firmly to him wherever he has departed. Thus, if a priest has been suspended by his superior, this penalty accompanies him even into another diocese, and he cannot celebrate there. On the contrary, if by a general edict in his Synod a Bishop had prohibited his clergy from entering liquor shops under pain of suspension latae sententiae, a cleric who enters them outside his own diocese would not incur this penalty.

99. • Division. Law is distinguished:

Into divine or human, according as it has God or man as its immediate author. I say: immediate; for human law, although it is made immediately by man, is nevertheless made by authority from God, communicated either immediately or mediately. L. I, 104 init.

Divine law is subdivided into eternal, natural, and divine positive, of which in their place. Human law, which is also called simply positive, is divided:

1° by reason of origin, into ecclesiastical, which is made by ecclesiastical power, and civil, which is made by civil power.

2° by reason of the mode by which it commands or prohibits: a) into preceptive, which is also called moral by some, and commands or prohibits, without inflicting penalties on transgressors; and penal. The latter either imposes only a penalty, without commanding or prohibiting anything, and is called merely penal or penal without addition, as if it should say: "he who has imported such merchandise will pay a penalty of thirty scuta"; or it imposes a penalty while at the same time commanding or prohibiting something, as if it should say: "the importation of such merchandise is prohibited under a penalty of twenty scuta," and is named mixed penal or even mixed law. b) Into prohibiting, which renders an act illicit only, and invalidating, which renders it invalid (n. 2, 4°). c) Into affirmative and negative (n. 125, IV).

3° By reason of the mode by which it is made, into written and introduced by custom.

100. • The properties or conditions of human law, in order that it may oblige, as is clear from the definition of law, are these: namely, it must be possible, honest, useful, just, permanent or stable, and promulgated. - Thus from Dist. 4, cap. 2.

1° Possible, not only physically, but also morally, so that it is not too difficult to observe, and therefore "according to nature, the custom of the country, fitting to place and time." St. Isidore. Otherwise it would not be an ordinance of reason.

2° Honest, namely establishing nothing repugnant to divine right, whether natural or positive. Otherwise it would not be for good, but for evil.

3° Useful, namely to the common good, and that notably: 1° because the common good of the community is the essential and primary end of law; 2° because law is an act of public power, which was instituted for the common good alone.

4° Just, that is, according to the norm of distributive justice, so that some are not burdened more than the others, but burdens are imposed on subjects with equality of proportion, their strengths and faculties being considered; otherwise it does not oblige in conscience.

5° Permanent or stable, so that once it has been made, unless it is abrogated or becomes harmful or useless, it endures as long as the community stands to which it is imposed, or as long as the circumstances persist for which it was made; therefore it must be negatively permanent.

6° Promulgated, because law is a general and public rule of actions, directing and obliging the community. But a rule cannot direct and oblige the community which it rules, unless it has been applied to it through promulgation.

101. • A legislator is called a Superior in whom there is power, either independent and supreme, or subordinate, of making laws for a community over which he has jurisdiction.

Principles. - I. God alone is the supreme and universal legislator, from whom necessarily the other legislators, whoever they may be, receive all their power, either immediately or mediately. For God is the highest and essential rule of any order whatsoever, and he alone enjoys supreme dominion over rational creatures, of whom he is the principle and the ultimate end. - It is established also from Scripture: By me kings reign, and lawgivers decree just things; by me princes rule, and the powerful decree justice.¹ - There is no power except from God.²

II. The Church has power to establish laws which conduce to the end proposed to itself. See the principle proved among the writers of Dogmatic Theology.

III. The civil power can establish laws which conduce to the end of temporal happiness.

It is established 1° from Sacred Scripture: By me kings reign, and lawgivers decree just things.³ Be subject, whether to the king as preeminent, or to governors as sent by him.⁴

It is established 2° from reason. For law, or an ordinance for the common good, is the necessary means for conserving and promoting the end of the civil Community, or its temporal happiness; therefore the faculty of employing that means, or the power of making laws, must be in him who must have care of the community (n. 100, 3°).

IV. One must always obey legitimate Superiors commanding something by a just law, whether you think that they received authority immediately from God, or through the mediation of the people. - The reason is that in either sentence they are equally placed over society to be governed by God, and therefore they have authority received from him. Hence the controversy whether secular Princes have power from God mediately or immediately is of no moment in practice. (1) p. 484. I said: commanding something by a just law, etc. But a law must be judged just as often as its injustice is not commonly established among learned and upright men, because right order requires that in doubt presumption favor the Superior.

102. Questions. - Quaer. 1° Who in the Church have the faculty of establishing laws?

Resp. 1° The Pope, for the whole Church.

2° A general Council, likewise for the whole Church.

3° Bishops for their own dioceses, and Abbots and exempt Prelates for their own territory. Nevertheless, their ordinances are judged to be precepts only, not laws, unless either a) they have been made in a diocesan Synod, or b) indeed outside it, but the chapter having been heard, and also consenting, if the matters concern things which would fall to the prejudice of the chapter or clergy, that is, to the violation of an already acquired right.¹ But where as yet no Chapters exist, as among us, or where the right of the Chapter has been abrogated by contrary custom, the Bishop is not bound, as is clear in itself, to hear it. Besides, all those things which pertain to the correction of morals or to reforming discipline can be sanctioned even with the Clergy not having been heard, although it is equitable and consonant with right to seek their opinion if the space of time and the reason of deliberating the business permit. Thus the Pref. C. de P. F. to the Bishop of Quebec, Nov. 20, 1792. - But Archbishops and Patriarchs cannot make laws for the dioceses of suffragans, because they are not their Superiors properly so called, although they can settle disputes brought from them to themselves.

But neither Bishop, nor Archbishop, nor Patriarch can give laws or precepts contrary either to the general custom of the whole Church, which has the force of common right, or to laws made by a power superior to himself, since an inferior does not have jurisdiction over a superior.

4° Particular Councils, for the dioceses which they represent. For if Bishops taken separately are able to establish laws for dioceses, likewise also in a Council, whether national or provincial, they will be able to constitute laws for the nation or province. Nevertheless the decrees of Provincial and National Councils must be sent to the Sacred Congregation of the Council of Trent, so that they may be recognized. Thus from ancient law confirmed by Sixtus V in the Bull Immensa aeterni. - "Not seldom, however," says Benedict XIV,² "has it happened that provincial [councils] . . . are confirmed by apostolic letters." But confirmation of Synods by the Apostolic See can be made in two ways, to be carefully distinguished: namely in common form, or in specific form. Statutes are said to be confirmed in common form when they are not examined one by one, nor approved by the Pontiff by his own motion and from certain knowledge . . . and such confirmation gives those statutes nothing of new right or efficacy. Confirmation is said to be made in specific form when cognizance of the cause is premised, and each statute is diligently weighed, and then, with no condition added, they are confirmed by Apostolic authority with the clause, by his own motion and from certain knowledge. . . . When a statute has been confirmed in specific form, since it has put on the nature of pontifical law, it is lawful for no inferior to derogate from it; indeed, from this confirmation it receives such great force that it prevails over the common right to which it would be contrary. Thus Benedict XIV.¹

103. • Quaer. 2° Can the Cathedral Chapter, while the See is vacant, the Prelates of Regulars, and Abbesses, or Superiors of Nuns, establish laws?

Resp. 1° The Chapter, while the See is vacant, can innovate or abrogate nothing, but must govern the diocese according to existing laws.² Nevertheless it could make statutes which would be necessary for the circumstances. In place of the Chapter in this matter among us is the administrator of the diocese.³

Resp. 2° Prelates of Regulars are able to establish true laws, whether in a general Congregation of the Order, or in another way within the limits of their jurisdiction according to the proper constitutions of the Order. For they have statutes approved by the Supreme Pontiff, which give this faculty to them.

Resp. 3° Abbesses or Superiors of Nuns cannot make laws properly so called, since they do not have ecclesiastical jurisdiction. They can, however, exact obedience in conscience concerning things prescribed in the rule, or concerning those things which conduce to the progress of the nuns, according to the rules. For they have the right of commanding both from the vow of obedience emitted by the subjects and from the necessity of discipline which must be preserved in the community.

Note: Concerning the author of civil law it will be treated below.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Promulgation is the publication of a law, made by legitimate authority, for inducing obligation in subjects.

118. Principles. - I. The public promulgation of a law is necessary that it may oblige. It follows from the definition (n. 97), and the Angelic Doctor¹ proves it from this: that law, as a rule and measure, can be applied to subjects to be ruled by it through promulgation alone (n. 100, 6°). Wherefore, although someone knew that a law had already been established and was soon to be promulgated, nevertheless he would not be held to fulfill it before it had been promulgated; for "laws are instituted when they are promulgated."²

II. Promulgation suffices, nor is either the dissemination of the law or knowledge of it required for the value of the law; for if it were otherwise, scarcely any human law endowed with the force of obliging would be had, since there are almost always some to whom knowledge by no means comes, except after a very long time from its promulgation. Wherefore those who invincibly do not know the promulgation of the law are excused from fault by defect of the voluntary (n. 11), but not from defect of the law, which, as promulgated, possesses the force of obliging. But in the external forum the knowledge of a law duly promulgated is generally presumed, both as to the penalties established for its violators and as to the validity or nullity of contracts.

III. From the nature of the thing it suffices that the law be promulgated in some principal city, or in such a place from which it can come to the knowledge of the community, and it obliges immediately once it has been promulgated.

I said: from the nature of the thing; for it is free to the legislator to determine special things both as to the place or places in which it must be promulgated so that it oblige, and as to the time which must elapse after promulgation before it obliges. Hence:

119. • Quaer. 1° Does it suffice that episcopal laws be promulgated in the episcopal city? - And papal laws at Rome?

Resp. Affirmatively, unless either the Pontiff or the Bishop signifies otherwise, or it is a question of those Pontifical laws which invalidate a contract which by its own nature, that is, unless it were invalidated by legitimate power, would be valid, or which take away jurisdiction, for example, by reservation of cases. The reason is that this suffices so that they can become known to the Christian people. Besides, the mode of promulgation is in the power of the legislator. - Moreover, in practice Bishops will to oblige through promulgation made in the episcopal city, or, if it is a question of laws which regard the clergy alone, in the synod itself;¹ and Pontiffs through that promulgation which is made at Rome. For otherwise the Supreme Pontiffs would in vain place in their Constitutions the clause by which they declare that they intend them, "thus published, to be held by all whom they concern just as if they had been personally made known or exhibited to each one of them."² Consonant is the declaration of the Sacred Penitentiary given on Nov. 8, 1821, to the Archbishop of Naples concerning the Bull Ecclesiam of Pius VII against clandestine societies, which sounds thus: "To II. Through the promulgation of the Constitution, which happened at Rome on the Ides of September, it obtained the dignity of law and the force of obliging."

I said: or it is a question of those, etc.; and this on account of inconveniences otherwise going to follow, which the Pontiff must not be presumed to have willed.

120. • Quaer. 2° Do Pontifical laws oblige as soon as they have been promulgated?

Resp. Unless the Pontiff has determined otherwise, only so much space of time is required as suffices that knowledge of the law morally come to all, that is, two months. Thus St. Alphonsus⁴ against others.

121. • Quaer. 3° When do our civil laws begin to oblige?

Resp. Kent:⁵ "A statute is to operate from the very day it passes, if the law itself does not establish the time."

122. • Acceptance of law is the submission by which subjects, at least as to the greater and sounder part, accept the law formally or virtually.

Principles. - I. Of itself, law as to the force of obliging in no way depends upon the acceptance of the people; for otherwise, together with the power of the Superior, all the authority of laws would collapse, and therefore the subversion of the whole social order would follow. It is established also from proposition 28 condemned by Alexander VII (see p. xiv).

II. Accidentally, sometimes a law not accepted does not oblige, by reason of the tacit or express consent of the Superior, or by reason of a tolerated privilege or custom. It is established from practice in various cases, and from the common consent of theologians.¹

123. Questions. - Quaer. 1° In what cases does a law not accepted accidentally not oblige?

Resp. 1° If the time which has elapsed from the non-acceptance is sufficient to induce a legitimate contrary custom.

2° If the sounder and greater part does not observe the law, and from the circumstances it is presumed that the prince, since he does not insist on observance nor punish transgressors, does not will to oblige anyone.

3° If the law is contrary to a flourishing custom, very difficult, and moreover the circumstances are of such a kind that, if they had been foreknown by the legislator, he certainly would not have made the law.²

The reason is that in all these cases the consent of the legislator is present, at least tacit consent.

124. • Quaer. 2° Does a law oblige in doubt whether it has been accepted?

Resp. Affirmatively, because, unless the contrary is established, the fact is presumed which had to be done by law (n. 67, 2°). Except if there is present solitary probability that the law has been abolished or never began.³

Quaer. 3° Does a law of the Church which has not been accepted because some civil government prohibits it oblige?

Resp. Affirmatively of itself, because the Church received its power from Christ, not from civil power; and therefore it is altogether independent of it. For to the Church, not to civil power, was it said by Christ: Whatever you shall bind . . . shall be bound, etc.⁴

Quaer. 4° Can Bishops not admit Pontifical laws?

Resp. Negatively. For Bishops, although they are Princes in their own Churches, nevertheless are subject to the Roman Pontiff, the immediate Vicar of Christ on earth, and head and governor of the whole Church. Therefore they must obey him, and thus furnish an example of obedience to their own subjects, by promulgating the pontifical law and procuring its observance in their diocese. Except, however, if grave reasons stand in the way; for then Bishops not only can, but must expose these reasons to the Holy See, and afterwards they will be bound to acquiesce in its definition. - See Benedict XIV.¹

We must treat 1° of the force of obligation; 2° of the mode of satisfying the obligation; 3° of the causes excusing from it.

125. Principles. - I. Every true law induces obligation, at least to penalty; for in this law differs from counsel, that a subject cannot pass it over with impunity at his own pleasure. - Thus all.

II. Every human law can of itself oblige in conscience before God. The reason is that Superiors have been constituted by God with the power of commanding. Hence: He who resists power resists the ordinance of God. But those who resist acquire damnation for themselves.² Thus all.

It is said: can oblige, but not, obliges; the reason is that a law does not oblige beyond the mind of the legislator. Therefore if he intends to oblige under penalty alone, the law of itself will not oblige to fault. And this indeed Doctors commonly hand down as having force both concerning civil laws and concerning canonical laws.

III. Law obliges under grave or under light fault according to the gravity of the matter or of the circumstances, or of the end specially intended by the Superior.

IV. An affirmative law obliges always, but not for always; but a negative law obliges both always and for always, that is, at individual moments. For they differ in this, that (not so much by force of the words as by the direct and primary end) the former commands an act to be posited, the latter to be omitted. But it is impossible for a man always to posit some act, for example, of the love of God; but no impossibility can be alleged of always abstaining from some prohibited act, for example, hatred of God.

V. Divine positive law and human law generally do not oblige with a very grave inconvenience, or with grave harm which is accidentally joined with the observance of the law. It is established from natural and canonical right, from the practice of the Church, and from the consent of all.

126. Questions. - Quaer. 1° Can a legislator prescribe under light fault in grave matter, and conversely?

Resp. to the 1st. Affirmatively, at least more probably, because the obligation depends on his will, just as the law itself. - Thus commonly.¹

Resp. to the 2nd. Negatively, because the proportion between grave obligation and light matter is lacking. Except if the matter is not in every way light, but grave from the end, etc. - Thus commonly.²

Quaer. 2° What matter of law must be judged grave or light?

Resp. This must be gathered:

1° From the very words of the law. Thus its obligation is grave if in it it is said: we prescribe under grave fault, or under the indignation of God, or under the threat of divine judgment, or in virtue of holy obedience, or from the whole power.

2° From the matter itself, which will be grave by reason either of quantity, for example, in theft, or of quality, as a consecrated host, or of another circumstance of greater moment.

3° From the end; for if the end of the law is of very great moment, and the law greatly conduces to this end, the matter will be grave, even if that which is prescribed or prohibited is of itself something light. Otherwise, the matter will be judged light. Thus it is grave for one celebrating Mass if he omits to pour a few drops of water into the Chalice. But it will not be grave if on a day of fasting you eat one or another ounce of bread outside the meal.

4° From the gravity of the penalty imposed on transgressors of a mixed law; since penalty is proportioned to fault. It would be, for example, a penalty of perpetual prison; of excommunication, if it is latae sententiae. For it must be said otherwise more probably if it is only ferendae in matter not grave, since on one side that penalty, which is not incurred immediately, is not so great, and on the other side the matter, which is supposed light, does not of itself carry this. See n. 1662, 2°.

5° From the common judgment of prudent persons and from approved custom, which indeed is the best interpreter of laws.¹

127. • Quaer. 3° Can human law sometimes impede an obligation, otherwise valid, from being contracted?

Resp. 1° Affirmatively for the external forum. The reason is that sometimes the common good requires this; nor does natural law prohibit that, when the common good demands it, conditions be prescribed by which, if they are not observed, acts otherwise valid are invalidated. Thus civil laws annul testaments destitute of the prescribed solemnities. But cf. n. 915.

Resp. 2° Affirmatively also generally for the internal forum, if it is a question of ecclesiastical law. Thus the Council of Trent invalidates clandestine marriages, otherwise valid from mere natural right.

Resp. 3° As to civil laws and certain ecclesiastical laws which are founded on a presumption of fraud, it is disputed. Those who deny say that those laws are founded on a presumption of fraud alone, and when this is not present, before the sentence of the judge, the act invalidated by law will only be rescindable. Those who affirm say that they are founded not only on the presumption of fraud, but also on the danger of it, which is never not present. Each sentence is probable, but the latter is more probable. Hence, for practice, before the sentence of the judge, the rule of law must be applied: "In doubt the condition of the possessor is better." Thus, for example, someone can retain a thing due from a testament destitute of the solemnities of law until he is despoiled of it by the judge.²

128. • Quaer. 4° Is the violation of law in a light matter grave because of contempt?

Resp. 1° Affirmatively, if the contempt directly affects the legislator formally as such, because the authority itself from which laws obtain force is contemned, and consequently God himself, from whom authority flows, according to that word of Christ:³ "He who despises you, despises me."

Resp. 2° Negatively, if the contempt regards either not the legislator himself, but only the matter as light in itself, or indeed the legislator, but not as such, rather as a particular contemptible person, for example, imprudent, vile, idiotic, rude, unlearned. It is also clear in itself that one does not sin gravely if the act by which the precept is contemned is not sufficiently deliberate, but sudden. Hence mortal sin will rarely be present by reason of contempt.¹

129. • Quaer. 5° Does the application of law, or a sentence, which is founded on a false presumption of fact oblige in conscience?

Resp. 1° Negatively, if the application of the law is founded only on the presumption of a particular fact, of fault, fraud, or damaging; the reason is that if the fact is lacking, by that very fact the whole foundation of the obligation is lacking. Hence if you are condemned to pay money for damages which are falsely thought to have been inflicted by your donkey, you are not obliged to pay, except accidentally, for example, by reason of scandal; but then you can compensate yourself, even after sentence has been given.²

Resp. 2° If the law is founded on a presumption of the universal danger of fault, frauds, etc., its application always obliges in conscience, even with every fault excluded; because the common good requires that all be stably obliged. Otherwise evils would not be impeded efficaciously; and otherwise the law intends to forestall the danger of deception, and to render men more cautious. Hence you are held to pay a fine to which you are condemned for damage truly inflicted by your animal, even if that damage happened without your theological fault.³ - See the things to be said in the Treatise on Right and Justice, n. 753, q. 10°, 775, q. 3°, q. 4°. - Our laws are universally consonant.

130. Principles. - I. To satisfy any obligation, an intention of doing that which is prescribed is required if the law is affirmative, falling on an action rather than on some effect to be obtained, for example, a law prescribing the hearing of Mass on a feast day. The reason is that a law prescribing an action cannot prescribe anything except a human action, which cannot be posited except in a human mode. - But it is by no means required if the law is either negative, as a law prohibiting servile works on feast days, or indeed affirmative but falling on some effect to be obtained rather than on an action, as a law which demands the payment of a debt or the restitution of another's thing, which one fulfills who pays or restores in drunkenness. The reason is that a negative law intends nothing more than the omission of the work; but an affirmative law about which we are speaking demands nothing more than that the effect be obtained, namely equality of thing to thing.

Hence he cannot be said to have satisfied the precept of hearing Mass who was present at it drunk or sleeping; but indeed he who slept the whole day without food or drink cannot be said to have violated the law of fasting. Thus likewise he does not satisfy the precept who goes to church only that he may feed his eyes, speak with another, await a friend, accompany a mistress going or returning, or hear the music, while he only assists at Mass bodily. The same say of a boy only through fear of parents, or of anyone else carrying himself to church under compulsion; for these lack the intention of doing what is prescribed. It is otherwise if, although compelled, or principally induced by fear or another motive, they have gone to church and yet assist at Mass in the due manner. For by this very fact that they assist at Mass in this way, they have the intention of doing that which is prescribed. Nevertheless persons of this kind are usually sinning by reason of the contrary evil will, namely, of not assisting if either coercion, or fear, or that other principal motive had not been present.

131. • II. The intention of fulfilling the precept, or of acting from the motive of formal obedience, is not required; because the legislator prescribes only the positing or omission of the work.¹

Hence he satisfies who hears Mass while not knowing that it is prescribed on this day, or who indeed knows the obligation, but intends only here and now to satisfy devotion, with the proposal of hearing another Mass.² - Nor does it stand in the way that an act does not operate beyond the intention of the agent; for that has force only in those things which depend on the power of the one operating alone. Hence he does not satisfy who posits a work to be posited by force of a vow, or oath, or sacramental penance, while expressly intending not to satisfy.

132. • III. It is not required that the law be fulfilled from the motive of charity (which is never of precept), or in the state of grace, unless this is prescribed, as in the reception of the Eucharist. The reason is that the work is prescribed, but not the motive. It is established also from proposition 16 of Baius, condemned by Pius V (p. x).

IV. The intention of fulfilling the end of the precept is not required, unless that end precisely of itself is prescribed; because ordinarily the legislator does not prescribe the end, nor does he intend to prescribe it, but only the positing of the act. Hence the axiom: The end of the precept does not fall under the precept. - St. Thomas.¹ In other words: the intention of the legislator concerns two things: concerning one indeed, that which he does not intend to prescribe, but that to which he intends to lead by the precept of law; and this is virtue, which is the end of law. There is another thing concerning which he intends to make a precept; and this is that which, as a means, induces or disposes to virtue. Moreover, it is necessary that satisfaction be made to the latter intention so that the law be fulfilled, not to the former.

220. Object of the treatise. - After the consideration of human acts in themselves and of their proximate, immediate, and intrinsic rule, which is conscience, there logically follows the treatise on the remote and extrinsic rule, as the extrinsic and regulative principle of conscience itself, according to which acts must be directed to the end, namely, on law, which conscience must apply in each of our actions and thus be conformed and subordinated to it.

In this treatise we shall speak not of individual laws considered specifically, but of law itself and of its supreme species considered in general, namely:

1. of law in general: a) of law in itself, b) of its division, c) of its effects; then in species:

2. of eternal law, 3) of natural law, 4) of human or civil law, 5) of divine law, 6) of ecclesiastical law; and concerning each we shall speak of their a) essence, b) power, c) mutability.

These six parts are reduced to three sections: the first two regard law rather according to psychological being; the next two regard law as the rule of morally good acts, according to moral being; the last two regard law also as the rule of supernatural acts, according to supernatural being.

1. Besides the authors cited for all general morals, and the better-known recent ones, such as St. Alphonsus with his disciples Aertnijs and Marc; Ballerini, Lehmkuhl, Noldin, Genicot, Vermeersch, all from the Society of Jesus; the Mechlin Theology, Haine, and Tanquerey; Prummer from the Order of Preachers, etc., the following can especially be consulted: Suarez, De Legibus; Van den Berghe, Tractatus de Legibus; Waffelaert, De l'obligation en conscience des lois civiles; Dom Lottin, Loi morale naturelle et loi positive; L'ordre moral et l'ordre logique; La definition classique de la loi (in Revue Neo-Scolastique, 1925); Le Droit naturel chez S. Thomas et ses predecesseurs; A. Valensin, Traite de Droit Naturel; B. Kuhlmann, Der Gesetzesbegriff des H. Thomas v. Aquin; Maroto, Institutiones Iuris canonici, I; Van Hove, Commentarium Lovaniense in Cod. I. C., t. II-V; Berutti, Institutiones Iuris canonici, Normae generales.

The science of Medicine is progressive; genius irradiates its onward march. Few other sciences have advanced as rapidly as it has done within the last half century. Hence it has happened that in many of its branches text-books have not kept pace with the knowledge of its leading minds. Such is confessedly the case in the department of Medical Jurisprudence. This very term, Medical Jurisprudence, as now used in colleges, is generally acknowledged to be a misnomer. There is no reason why it should be so used. The leading medical writers and practitioners are sound at present on the moral principles that ought to direct the conduct of physicians. It is high time that their principles be more generally and distinctly inculcated on the younger members, and especially on the students of their noble profession. To promote this object is the purpose aimed at by the author. His brief volume is not intended to be substituted for existing text-books on Medical Jurisprudence, but to supply some chapters imperatively demanded by science for the thorough treatment of this important subject.

Gentlemen:—When I thoughtfully consider the subject on which I am to address you in this course of lectures, i.e., Medical Jurisprudence, I am deeply impressed with the dignity and the importance of the matter.

The study of medicine is one of the noblest pursuits to which human talent can be devoted. It is as far superior to geology, botany, entomology, zoölogy, and a score of kindred sciences as its subject, the body of man, the visible lord of the creation, is superior to the subject of all other physical sciences, which do so much honor to the power of the human mind; astronomy, which explores the vast realms of space, traces the courses and weighs the bulks of its mighty orbs; chemistry, which analyzes the minutest atoms of matter; physics, which discovers the properties, and mechanics, which utilizes the powers of an endless variety of bodies—all these noble sciences together are of less service to man than that study which directly promotes the welfare of his own structure, guards his very life, fosters the vigor of his youth, promotes the physical and mental, aye, even the moral, powers of his manhood, sustains his failing strength, restores his shattered health, preserves the integrity of his aging faculties, and throughout his whole career supplies those conditions without which both enjoyment and utility of life would be impossible.

The physician, indeed, is one of the most highly valued benefactors of mankind. Therefore he has ever been held in honor among his fellow-men; by barbarous tribes he is looked upon as a connecting link between the visible and the invisible world; in the most civilized communities, from the time of Hippocrates, the father of medicine, to the present day, he has been held in deeper veneration than the members of almost any other profession; even in the sacred oracles of Revelation his office is spoken of with the highest commendation: “Honor the physician,” writes the inspired penman, “for the need thou hast of him; for the Most High hath created him. The skill of the physician shall lift up his head, and in the sight of great men he shall be praised. The Most High has created medicines out of the earth, and a wise man shall not abhor them. The virtue of these things is come to the knowledge of men, and the Most High has given knowledge to men, that He may be honored in His wonders. By these He shall cure and shall allay their pains, and of these the apothecary shall make sweet confections, and shall make up ointments of health, and of His works there shall be no end.” (Ecclus. xxxiii. 1–7).

It is well to remind you thus, gentlemen, at the opening of this new year of studies, of the excellence of your intended profession; for you cannot help seeing that a science so noble should be studied for a noble purpose. In this age of utilitarianism, it is, alas! too common an evil that the most excellent objects are coveted exclusively for lower purposes. True, no one can find fault with a physician for making his profession, no matter how exalted, a means of earning an honest livelihood and a decent competency; but to ambition this career solely for its pecuniary remuneration would be to degrade one of the most sublime vocations to which man may aspire. There is unfortunately too much of this spirit abroad in our day. There are too many who talk and act as if the one highest and worthiest ambition of life were to make as large a fortune in as short a time and in as easy a way as possible. If this spirit of utilitarianism should become universal, the sad consequence of it to our civilization would be incalculable. Fancy what would become of the virtue of patriotism if officers and men had no higher ambition than to make money! As a patriotic army is the strongest defence of a nation’s rights, so a mercenary army is a dreadful danger to a people’s liberty, a ready tool in the hand of a tyrant; as heroism with consequent glory is the noble attribute of a patriot, so a mercenary spirit is a stigma on the career of any public officer. We find no fault with an artisan, a merchant, or a common laborer if he estimate the value of his toil by the pecuniary advantages attached to it; for that is the nature of such ordinary occupations, since for man labor is the ordinary and providential condition of existence. But in the higher professions we always look for loftier aspirations. This distinction of rewards for different avocations is so evident that it has passed into the very terms of our language: we speak of “wages” as due to common laborers, of a “salary” as paid to those who render more regular and more intellectual services; of a “fee” as appointed for official and professional actions; and the money paid to a physician or a lawyer is distinguished from ordinary fees by the especial name of “honorary” or “honorarium.” This term evidently implies, not only that special honor is due to the recipients of such fees, but besides that the services they render are too noble to be measured in money values, and therefore the money offered is rather in the form of a tribute to a benefactor than of pecuniary compensation for a definite amount of service rendered.

Wages may be measured by the time bestowed, or by the effect produced, or by the wants of the laborer to lead a life of reasonable comfort; a salary is measured by the period of service; but an honorary is not dependent on time employed, or on needs of support, or on effect produced, but it is a tribute of gratitude due to a special benefactor. Whatever practical arrangements may be necessary or excusable in special circumstances, this is the ideal which makes the medical profession so honorable in society.

From these and many other considerations that might be added, it is evident, gentlemen, that in the pursuit of the distinguished career for which you are preparing, you are expected to make yourselves the benefactors of your fellow-men. Now, in order to do so, it will not suffice for you to understand the nature of the various diseases which flesh is heir to, together with the specific powers of every drug described in works on materia medica. The knowledge of anatomy and surgery, and of the various branches that are taught by the many professors with whom I have the honor of being associated in the work of your medical education, no matter how fully that knowledge be mastered, is not sure by itself to make you benefactors to your fellow-men, unless your conduct in the management of all your resources of science and art be directed to procure the real welfare of your patients. Just as a skilful politician may do more harm than good to his country if he direct his efforts to improper ends, or make use of disgraceful means; as a dishonest lawyer may be more potent for the perversion than the maintenance of justice among his fellow-citizens; so likewise an able physician may abuse the beneficent resources of his profession to procure inferior advantages at the sacrifice of moral rights and superior blessings.

Your career, gentlemen, to be truly useful to others and pursued with safety and benefit to yourselves, needs to be directed by a science whose principles it will be my task to explain in this course of lectures—the science of Medical Jurisprudence.

It is the characteristic of science to trace results to their causes. The science of Jurisprudence investigates the causes or principles of law. It is defined as “the study of law in connection with its underlying principles.” Medical Jurisprudence, in its wider sense, comprises two departments, namely, the study of the laws regarding medical practice, and, more, especially, the study of the principles on which those laws are founded, and from which they derive their binding power on the human conscience. The former department, styled Medical Law, is assigned in the Prospectus of this College to a gentleman of the legal profession. He will acquaint you with the laws of the land, and of this State in particular, which regulate the practice of medicine; he will explain the points on which a Doctor may come in contact with the law courts, either as a practitioner having to account for his own actions, under a charge of malpractice perhaps, or as an expert summoned as a witness before a court in matters of civil contests or criminal prosecutions. His field is wide and important, but the field of Medical Jurisprudence, in its stricter or more specific sense, is wider still and its research much deeper: it considers those principles of reason that underlie the laws of the land, the natural rights and duties which these laws are indeed to enforce to some extent, but which are antecedent and superior to all human laws, being themselves founded on the essential and eternal fitness of things. For things are not right or wrong simply because men have chosen to make them so. You all understand, gentlemen, that, even if we were living in a newly discovered land, where no code of human laws had yet been adopted, nor courts of justice established, nor civil government organized, still even there certain acts of Doctors, as of any other men, would be right and praiseworthy, and others wrong and worthy of condemnation; even there Doctors and patients and their relatives would have certain rights and duties.

In such a land, the lecturer on Medical Law would have nothing to explain; for there would be no human laws and law courts with which a physician could come in contact. But the lecturer on Medical Jurisprudence proper would have as much to explain as I have in this country at present; because he treats of the Ethics or moral principles of Medical Practice, he deals with what is ever the same for all men where-ever they dwell, it being consequent on the very nature of man and his essential relations to his Maker and his fellow-man. Unfortunately the term “Medical Jurisprudence” has been generally misused. Dr. Ewell, in his text-book on the subject, writes “While the term ‘Medical Jurisprudence’ is a misnomer,—the collection of facts and conclusions usually passing by that name being principally only matters of evidence, and rarely rules of law,—still the term is so generally employed that it would be idle to attempt to bring into use a new term, and we shall accordingly continue the employment of that which has only the sanction of usage to recommend it” (Ch. I).

I prefer to use terms in their genuine meaning; for misnomers are out of place in science, since they are misleading. Yet, to avoid all danger of misunderstanding, I will call my subject “Moral Principles and Medical Practice,” and distinctly style it “The Basis of Medical Jurisprudence.”

On what lines will my treatment of the subject depart from the beaten path? On the same lines on which most other improvements have been made in the science of medicine. Science has not discovered new laws of physical nature that did not exist before; but it has succeeded in understanding existing laws more perfectly than before, and has shaped its practice accordingly. So, too, the leaders of thought among physicians, especially in English-speaking countries, now understand the laws of moral nature—the principles of Ethics—more thoroughly than most of their predecessors did, and they have modified their treatment so as to conform it to these rules of morality. Hitherto Medical Jurisprudence had regulated the conduct of practitioners by human, positive laws, and sanctioned acts because they were not condemned by civil courts. Now we go deeper in our studies, and appeal from human legislation to the first principles of right and wrong, as Jurisprudence ought to do; and, in consequence, some medical operations which used to be tolerated, or even approved, by many in the profession are at present absolutely and justly condemned. The learned physician these days is no longer afraid to face the moral philosopher; there is no longer any estrangement between Ethics and Medical Practice. Medicine, sent from Heaven to be an angel of mercy to man, is now ever faithful to its beneficent mission; it never more performs the task of a destroying spirit, as—not in wantonness, but in ignorance—it did frequently before.

On these lines, then, of the improved understanding of first principles, I will now proceed to develop the teachings of Medical Jurisprudence.

The first principle that I will lay down for explanation is, that a man is not to be held responsible for all his acts, but only for those which he does of his own free will, which, therefore, it is in his power to do or not to do. These are called human acts, because they proceed from a distinctively human power. A brute animal cannot perform such acts; it can only do under given circumstances what its impulses prompt it to do; or, when it experiences various impulses in different directions, it can only follow its strongest impulse; as when a dog, rushing up to attack a man, turns and runs away before his uplifted stick. When a bird sings, it cannot help singing; but a man may sing or not sing at his choice; his singing is a human act. When, however, under the impulse of violent pain, a person happens involuntarily to sigh or groan or even shriek, this indeed is the act of a man, but, inasmuch as it is physically uncontrollable, it is not a human act. So whatever a patient may do while under the influence of chloroform is not a human act, and he is not morally responsible for it. His conduct under the circumstances may denote a brave or a cowardly disposition, or it may indicate habits of self-command or the absence of them. His prayers or curses while thus unconscious are no doubt the effects of acquired virtues or vices; yet, in as far as his will has no share in the present acts, they are not free or human acts. He deserves praise or blame for his former acts, by which he acquired such habits, but not for his unconscious acts as such.

From this principle it follows that a physician is not responsible to God or man for such evil consequences of his prescriptions or surgical operations as are entirely beyond his will and therefore independent of his control. If, however, his mistakes arise from his ignorance or want of skill, he is blamable in as far as he is the wilful cause of such ignorance; he should have known better; or, not knowing better, he should not have undertaken the case for which he knew he was not qualified.

But it often happens that the best informed and most skilful practitioner, even when acting with his utmost care, causes real harm to his patients; he is the accidental, not the wilful, cause of that harm, and therefore he is free from all responsibility in the matter.

The practical lessons, however, which all of you must lay to heart on this subject are: 1st. That you are in duty bound to acquire sound knowledge and great skill in your profession; since the consequences involved are of the greatest moment, your obligation is of a most serious nature. 2d. That in your future practice you will be obliged on all occasions to use all reasonable care for the benefit of your patients. 3d. That you cannot in conscience undertake the management of cases of unusual difficulty unless you possess the special knowledge required, or avail yourselves of the best counsel that can reasonably be obtained.

A second principle of Ethics in medical practice, gentlemen, is this, that many human acts may be highly criminal of which, however, human laws and courts take no notice whatsoever. In this matter I am not finding fault with human legislation. The laws of the land, considering the end and the nature of civil government, need take no cognizance of any but overt acts; a man’s heart may be a very cesspool of vice, envy, malice, impurity, pride, hatred, etc., yet human law does not and ought not to punish him for this, as long as his actions do not disturb the public peace nor trench upon the happiness of his neighbor. Even his open outward acts which injure only himself, such as gluttony, blasphemy, impiety, private drunkenness, self-abuse, even seduction and fornication, are not usually legislated against or punished in our courts. Does it follow that they are innocent acts and lawful before God? No man in his right senses will say so.

The goodness and the evil of human acts is not dependent on human legislation alone; in many cases the moral good or evil is so intrinsic to the very nature of the acts that God Himself could not change the radical difference between them. Thus justice, obedience to lawful authority, gratitude to benefactors, are essentially good; while injustice, disobedience, and ingratitude are essentially evil. Our reason informs us of this difference; and our reason is nothing else than our very nature as intelligent beings capable of knowing truth. The voice of our reason or conscience is the voice of God Himself, who speaks through the rational nature that He has made. Through our reason God not only tells us of the difference between good and evil acts, but He also commands us to do good and avoid evil;—to do certain acts because they are proper, right, orderly, suitable to the end for which we are created; and to avoid other acts because they are improper, wrong, disorderly, unsuitable to the end of our existence. There is a third class of acts, which, in themselves, are indifferent, i.e., neither good nor evil, neither necessary for our end nor interfering with its attainment. These we are free to do or to omit as we prefer; but even these become good and even obligatory when they are commanded by proper authority, and they become evil when forbidden. In themselves, they are indifferent acts.

These explanations are not mere abstractions, gentlemen, or mere philosophical speculations. True, my subject is philosophical; but it is the philosophy of every-day life; we are dealing with live issues which give rise to the gravest discussions of your medical journals; issues on which practically depend the lives of thousands of human beings every year, issues which regard physicians more than any other class of men, and for the proper consideration of which Doctors are responsible to their conscience, to human society, and to their God. To show you how we are dealing with present live issues, let me give you an example of a case in point. In the “Medical Record,” an estimable weekly, now in almost the fiftieth year of its existence, there was lately carried on a lengthy and, in some of its parts, a learned discussion, regarding the truth of the principles which I have just now explained, namely, the intrinsic difference between right and wrong, independently of the ruling of law courts and of any human legislation. The subject of the discussion was the lawfulness in any case at all of performing craniotomy, or of directly destroying the life of the child by any process whatever, at the time of parturition, with the intention of saving the life of the mother.

I will not examine this important matter in all its bearings at present; I mean to take it up later on in our course, and to lay before you the teachings of science on this subject, together with the principles on which they are based. For the present I will confine myself to the point we are treating just now, namely, the existence of a higher law than that of human tribunals, the superiority of the claims of natural to those of legal justice. Some might think, at first sight, that this needs no proof. In fact we are all convinced that human laws are often unjust, or, at least, very imperfect, and therefore they cannot be the ultimate test or fixed standard of right and wrong; yet the main argument advanced by one of the advocates of craniotomy rests upon the denial of a higher law, and the assertion of the authority of human tribunals as final in such matters.

In the “Medical Record” for July 27, 1895, p. 141, this gentleman writes in defence of craniotomy: “The question is a legal one per se against which any conflicting view is untenable. The subdivisions under which the common law takes consideration of craniotomy are answers in themselves to the conclusions quoted above, under the unfortunate necessity which demands the operation.” Next he quotes the Ohio statute law, which, he remarks, was enacted in protection of physicians who are confronted with this dire necessity. He is answered with much ability and sound learning by Dr. Thomas J. Kearney, of New York, in the same “Medical Record” for August 31, 1895, p. 320, who writes: “Dr. G. bases his argument for the lawfulness of craniotomy in the teachings of common law, contending, at least implicitly, that it is unnecessary to seek farther the desired justification. However, the basis of common law, though broad, is certainly not broad enough for the consideration of such a question as the present one. His coolness rises to sublime heights, in thus assuming infallibility for common law, ignoring the very important fact that behind it there is another and higher law, whose imperative, to every one with a conscience, is ultimate. It evidently never occurs to him that some time could be profitably spent in research, with the view to discovering how often common-law maxims, seen to be at variance with the principles of morality, have been abrogated by statutory enactments. Now the maxims of common law relating to craniotomy, the statutes in conformity therewith, as well as Dr. G.’s arguments (some of them at least), rest on a basis of pure unmitigated expediency; and this is certainly in direct contravention of the teachings of all schools of moral science, even the utilitarian.”

Dr. Kearney’s doctrine of the existence of a higher law, superior to all human law, is the doctrine that has been universally accepted, in all Christian lands at least, and is so to the present day. Froude explains it correctly when he writes: “Our human laws are but the copies, more or less imperfect, of the eternal laws so far as we can read them, and either succeed and promote our welfare or fail and bring confusion and disaster, according as the legislator’s insight has detected the true principle, or has been distorted by ignorance or selfishness” (Century Dict., “Law”).

Whoever calmly reflects on the manner in which laws are enacted by legislative bodies, under the influence of human passions and prejudices, often at the dictation of party leaders or of popular sentiment, of office-seekers or wealthy corporations, etc., will not maintain for a moment that human laws and human tribunals are to be accepted as the supreme measure or norma of right and wrong. The common law of England, which lies at the basis of our American legislation, and is an integral portion of our civil government, is less fluctuating than our statutory law, and is in the main sound and in conformity with the principles of Jurisprudence. But no one will claim infallibility for its enactments; the esteem we have for it is chiefly due to its general accord with the requirements of the higher law.

There is, then, a higher law, which all men are bound to obey, even lawgivers and rulers themselves as well as their humblest subjects, a law from which no man nor class of men can claim exemption, a law which the Creator cannot fail to impose upon His rational creatures: although God was free to create or not to create as He chose, since He did not need anything to complete His own happiness,—yet, if He did create, He was bound by His own wisdom to put order into His work; else it would not be worthy of His supreme wisdom. As the poet has so tersely expressed it, “Order is Heaven’s first law.”

How admirably is this order displayed in the material universe! The more we study the sciences—astronomy, biology, botany, physiology, medicine, etc.—the more we are lost in admiration at the beautiful order we see displayed in the tiniest as well as in the vastest portions of the creation. And shall man alone, the masterpiece of God in this visible universe, be allowed to be disorderly, to be a failure in the noblest part of his being, to make himself like to the brute or to a demon of malice, to waste his choicest gifts in the indulgence of debasing pleasure? The Creator is bound by His own wisdom to direct men to high purposes, worthy of their exalted intellectual nature. But how shall He direct man? He compels material things to move with order to the accomplishment of their alloted tasks by the physical laws of matter. He directs brute animals most admirably to run their appointed careers by the wonderful laws of instinct, which none of them can resist at will. But man He has made free; He must direct him to do worthy actions by means suitable to a free being, that is, by the enacting of the moral law.

He makes known to us what is right and wrong. He informs every one of us, by the voice of reason itself, that He requires us to do the right and avoid the wrong. He has implanted in us the sense of duty to obey that law. If we do so, we lead worthy lives, we please Him, and, in His goodness, He has rewards in store.

But can He be pleased with us if we thwart His designs; if we, His noblest works on earth, instead of adding to the universal harmony of His creation, make monsters of ourselves, moral blots upon the beautiful face of His world? It were idle for Him to give us the knowledge of His will and then to stand by and let us disfigure His fairest designs; to bid us do what is right, and then let us do wrong without exacting redress or atonement. If He is wise, He must not only lay down the law, but He must also enforce it; He must make it our highest interest to keep His law, to do the right; so that ultimately those men shall be happy who have done it, and those who have thwarted His designs shall be compelled to rue it. He will not deprive us of liberty, the fairest gift to an intelligent creature, but He will hold out rewards and punishments to induce us to keep the law and to avoid its violation. Once He has promised and threatened, His justice and His holiness compel Him to fulfil His threats and promises. A man can commit no rasher act than to ignore, defy, and violate that higher law of which we are speaking, and which, if it must direct all men, especially requires the respect and obedience of those into whose hands he has placed at times the lives of their fellow-men, the greatest of earthly treasures.

I have insisted so much, gentlemen, on the existence of the higher law, on its binding power and on the necessity of observing it, because it is the foundation of my whole course of lectures. If there were no higher law, then there would be no Medical Jurisprudence, in the true sense of the word. For Jurisprudence studies the principles that underlie legal enactments, and if there were no higher law, there would be no such principles; then the knowledge of the human law would fill the whole programme. This in fact is the contention of the defendant of craniotomy to whom I have referred; and he boldly applies his speculation to a matter in which the physician has the most frequent opportunity to exhibit his fidelity to principle, or his subserviency to the requirements of temporary expediency at the sacrifice of duty.

You will find, gentlemen, as we proceed in our course, that Doctors have very many occasions in which to apply the lessons of Jurisprudence in their medical practice. I even suspect that they need to be more conscientious in regard to the dictates of the higher law than any other class of men, the clergy alone, perhaps, excepted. They need this not only for their own good, but also for the good of their patients and of the community at large. The reasons are these:

A. The matters entrusted to their keeping are the most important of all earthly possessions; for they are life itself, and, along with life, health, the necessary condition of almost all temporal enjoyment. No other class of men is entrusted with more weighty earthly interests. Hence the physician’s responsibility is very great; hence the common good requires that he be eminently faithful and conscientious.

B. With no other class of men does the performance of duty depend more on personal integrity, on conscientious regard for the higher law of morality than with the Doctor. For the Doctor’s conduct is less open to observation than that of other professions. The lawyer may have many temptations to act unjustly; but other lawyers are watching him, and the courts of justice are at hand to check his evil practices. As to the judge, he is to pronounce his decisions in public and give reasons for his ruling. The politician is jealously watched by his political opponents. The public functionary, if he is unjust in his dealings, is likely sooner or later to be brought to an account. But the physician, on very many occasions, can be morally sure that his conduct will never be publicly scrutinized. Such is the nature of his ministrations, and such too is the confidence habitually reposed in his integrity, that he is and must be implicitly trusted in matters in which, if he happens to be unworthy of his vocation, he may be guilty of the most outrageous wrongs.

The highest interests of earth are in his hands. If he is not conscientious, or if he lets himself be carried about by every wind of modern speculations, he can readily persuade himself that a measure is lawful because it is presently expedient, that acts can justly be performed because the courts do not punish them; and thus he will often violate the most sacred rights of his patients or of their relatives. Who has more frequent opportunities than a licentious Doctor to seduce the innocent, to pander to the passions of the guilty, to play into the hands of greedy heirs, who may be most willing to pay him for his services? No one can do it more safely, as far as human tribunals are concerned. As a matter of fact, many, all over this land and other lands, are often guilty of prostituting their noble profession to the vilest uses. The evil becomes all the more serious when false doctrines are insinuated, or publicly advocated, which throw doubt upon the most sacred principles of morality. True, the sounder and by far the larger portion of medical men protest against these false teachings by their own conduct at least; but it very frequently happens that the honest man is less zealous in his advocacy of what is right than is the propagandist of bold speculations and dangerous new theories in the spreading of what is pernicious.

The effect thus produced upon many minds is to shake their convictions, to say the least; and I need not tell you, gentlemen, that weak convictions are not likely to be proof against violent and repeated temptations. In fact, if a physician, misled by any of those many theories which are often inculcated or at least insinuated by false scientists, can ever convince himself, or even can begin to surmise that, after all, there may be no such thing as a higher law before which he is responsible for even his secret conduct, then what is to prevent him from becoming a dangerous person to the community? If he see much temporal gain on the one hand, and security from legal prosecution on the other, what would keep him in the path of duty and honesty? Especially if he can once make himself believe that, for all he knows, he may be nothing more than a rather curiously developed lump of matter, which is to lose forever all consciousness in death. Why should he not get rid of any other evolved lump of matter if it stand in the way of his present or prospective happiness? Those are dangerous men who inculcate such theories; it were a sad day for the medical profession and for the world at large if ever they found much countenance among physicians. Society cannot do without the higher law; this law is to be studied in Medical Jurisprudence.

It is my direct object, gentlemen, to explain this law to you in its most important bearings, and thus to lay before you the chief duties of your profession. The principal reason why I have undertaken to deliver this course of lectures—the chief reason, in fact, why the Creighton University has assumed the management of this Medical College—is that we wish to provide for the West, as far as we are able, a goodly supply of conscientious physicians, who shall be as faithful and reliable as they will be able and well informed; whose solid principles and sterling integrity shall be guarantees of upright and virtuous conduct.

That this task of mine may be successfully accomplished, I will endeavor to answer all difficulties and objections that you may propose. I will never consider it a want of respect to me as your professor if you will urge your questions till I have answered them to your full satisfaction. On the contrary, I request you to be very inquisitive; and I will be best pleased with those who show themselves the most ready to point out those difficulties, connected with my lectures, which seem to require further answers and explanations.

Law is defined by St. Thomas, 1-2, q. 90, art. 4: "A certain ordinance of reason for the common good, and promulgated by him who has care of the community." - It is said, 1st, an ordinance, because law is imposed by way of a rule and measure by which human acts are subjected to order; 2nd, of reason, because that ordinance ought not to be violent but to proceed from right reason; 3rd, for the common good, because the end of law, at least immediate and direct, is to provide for the community; 4th, by him who has care of the community, because to make laws is an act of jurisdiction; 5th, promulgated, because a rule cannot order except through application, and the application of this rule is made through promulgation. Hence it follows:

1st. There is present a manifold distinction between law and precept. For they differ, 1st, by reason of the one commanding, because a legislator is always a public person, but one giving a precept can be a private person; 2nd, by reason of the subject, because law is made for a community, but a precept even for a private person; 3rd, by reason of the end, because although ultimately the good of individuals redounds to the community, and conversely, nevertheless directly and immediately law regards the common good, a precept the private good; 4th, by reason of place, because law affects the territory, but a precept affects persons, and, as they say, clings to the bones; 5th, by reason of duration, because a precept ceases with the death of the one giving the precept, but law remains in force even after the legislator has died.

2nd. It follows that the properties or conditions of human law consist in this, that it be, 1st, possible, that is, accommodated to the morals and circumstances of persons, etc.; 2nd, honorable, that is, establishing nothing repugnant to right reason or to positive divine law; 3rd, useful, namely apt for procuring the common good; 4th, just, that is, according to the norm of distributive justice; 5th, promulgated, that is, applied to the community for directing actions.

3rd. Laws are instituted when they are promulgated. Thus the Code, can. 8, § 1. Cf. C. 3 D 14; c. 1. X, I. 5.

TREATISE ON LAWS

St. Thomas, Ia IIae, from q. 90 to 109.

DISSERTATION I

ON LAW IN GENERAL

St. Thomas, qq. 90, 91, 92.

Although the use of marriage is good, nevertheless the state of virginity and celibacy is preferable to it.

I. There is Canon 10 of the Council of Trent, session XXIV: If anyone shall say that the conjugal state is to be preferred to the state of virginity or celibacy, and that it is not better and more blessed to remain in virginity or celibacy than to be joined in marriage: let him be anathema. This is the doctrine to be defended. We suppose not only that marriage is good, but that the use of marriage through carnal copulation is good, that is, an act honorable and holy in itself. For the comparison is not properly instituted between virginity and celibacy on the one side, and marriage simply on the other, since with marriage virginity and the perfection of celibacy can consist; rather, the comparison is with marriage exercising itself through the mingling of flesh, or conjugal copulation. There is no need, beyond the things said in Thesis II, to bring forward other things to prove that this use of marriage is a good act. For from what was said there it is clear that this act was instituted by nature for the best end, which is offspring, and that it is moreover an act of justice in rendering the debt; God himself approved it when he said to the first parents: "Increase and multiply" (Gen. I, 28; IX, 1).

This being supposed, therefore, the comparison is instituted between Marriage exercising itself through carnal mingling and virginity or celibacy. Moreover, it must again be observed that the Tridentine Fathers make a comparison between states, that is, not between the persons who live in these states, or between the perfections with which those persons can be endowed from their own virtue, but between states, that is, between those things which belong to each state from its own nature. But a state is a condition in itself immovable and perpetual of men obligated to certain works or offices. Since the comparison is made between states, hence again it is not made between those things which can be accidental to the account of state, of which sort would be some consecration. Besides, it must be observed that the celibacy of which there is speech is not, so to speak, negative celibacy, namely the mere lack of the conjugal bond, with which an immoral and wicked life can be joined, but positive celibacy, in which, namely, someone alien to nuptials resolves from the soul to lead a life exempt from the pleasures of the flesh. Finally, it must be considered that the comparison is made not by reason of just any goodness, but of moral perfection, which man obtains on account of this or that state; and this moral perfection is the supreme good which man can attain in this life, to which therefore the rest must be subordinated, and on account of which it cannot happen that he is impeded from helping others; indeed, in itself, it is necessary that he exist as more apt for procuring the true good for others. But this moral perfection is that blessedness which man can attain in this life, the beginning and pledge of future blessedness.

II. Therefore for the Tridentine Fathers the question concerned perfection and blessedness, to which state each belongs more. But the Fathers teach, according to the perpetual tradition of the Church, that, when account is taken of perfection and of true blessedness according to God, the state of virginity and celibacy is to be preferred to the state of marriage. That this is true is easily demonstrated. For it is clear, first, from the doctrine of the Apostle, 1 Cor. VII. The Apostle affirms that it is good (καλόν) for a man not to touch a woman (v. 1); that it is good (καλόν) for the unmarried and widows if they remain in that state, that is, without nuptials, as the Apostle himself remained (v. 8). Nevertheless he adds that if they do not contain themselves, that is, if they cannot contain themselves, they should marry, giving the reason that it is better to marry than to burn (v. 9), that is, to be overcome by the temptation of concupiscence, not merely to be tempted; for he who remains chaste when placed in the fire of temptation is not burned, that is, consumed by fire, but purified. Here there is speech of moral goodness. Therefore the unmarried state is called good simply; the married state is called good on account of avoiding incontinence, namely lest one sin; and since this is the least moral goodness, the unmarried state will be good on account of something more. The former state is good in itself and desirable; the other is good on account of a certain native infirmity of soul, lest something worse happen. Therefore comparison by reason of goodness is instituted between each state, and the appellation "good" made of the state of unmarried women or unmarried men has a comparative force, so that it is the same as "better," according to the custom of the Hebrews. But do not infer from those things which the Apostle here says about the state of married women that it is good only on account of the end of avoiding incontinence; for from the Apostle himself it is clear that it is good on account of other ends, for example, on account of the procreation of children (cf. 1 Tim. V, 14). But the very fact that here the Apostle mentions this one end alone, among the several goods which are in marriage, confirms what we say: that the Apostle, having regard to moral goodness or perfection, prefers virginity to marriage. For if the Apostle is said, when he wrote these things, to have had before his eyes only the moral perfection of those whom he was addressing, and to have wished to commend each state to them from this moral perfection which each person can find in it, and therefore to have spoken to them as though answering the question:

As regards the moral perfection which someone can acquire in either state, which excels, virginity or nuptials? If, I say, you conceive the matter thus, you plainly understand why the Apostle mentions this one good alone out of the many which are in marriage: namely the restraining of concupiscence, lest it break out into sins. For the other goods were altogether ἀδιάφορα to this question. For since moral perfection is situated in this, that we live according to the spirit and not according to the flesh (Rom. VIII, 12), it was necessary to compare each state according to this, if the question was which is morally more perfect. But with this question set aside, there was no reason why the other goods of Marriage, not only physical but also moral, should be passed over in silence. Therefore by reason of moral good the Apostle compares virginity with marriage so that he prefers it to marriage. This indeed is openly declared at the end of the discourse (v. 40): "she will be more blessed if she remains thus," that is, unmarried. Hence it is that abstinence from the conjugal act is called by the same Apostle sanctity, which is not asserted of those who use marriage: "The unmarried woman thinks of the things that are the Lord's, that she may be holy in body and spirit; but she who is married thinks of the things that are of the world, how she may please her husband" (v. 34). And on account of this excellence of virginity, it is the object of counsel (v. 25): that is, it is not merely counseled, not commanded, because it is an indifferent thing, not necessary, which is also true of marriage; but because it contains a more eminent perfection than can generally be exacted from all. For this is the account of the evangelical counsels. This moreover is clear when the words of Christ in Matthew XIX, 10-12 are compared, in which Christ, commending the excellence of the gift of virginity, asserts that it is not given to all, but to those to whom God wills. Read Chrysostom on both places. But there is no need for us to observe that in the Apostle's discourse Marriage is considered insofar as it is exercised through copulation; for thus it contributes to the remedy of concupiscence, and thus it is true that the married woman thinks of the things that are of the world.

III. But, they say, marriage is called by the Apostle honorable in all (τίμιον ἐν πᾶσι; Heb. XIII, 4), but virginity never is. Besides, virginity itself is commended by the same Apostle not in itself, but by reason of another: "I think," he says, "that this is good on account of the present necessity" (1 Cor. VII, 26). I answer to the first: those words of the Apostle contain an exhortation rather than praise, that the honor owed to nuptials be shown by spouses in all their acts, and that nothing be done which would dishonor Christian nuptials, as used to happen among the Gentiles. For the rest, even if nuptials are honorable, it does not follow that virginity is not more honorable; and this, although not in as many words, the Apostle nevertheless signified when he preferred it to marriage. I answer to the second: those words of the Apostle do not pertain to giving the reason why virginity is good, but to presenting a certain persuasive reason for his counsel concerning preserving virginity, or to making souls more inclined to embrace that counsel, arguing also from the present necessity or from the present inconveniences of marriage, as he declares below. Therefore it is a commendation of virginity drawn not from the object, but from a certain condition of the subject: that outside it man is liable to more tribulations of the flesh. But this is not the same as saying that this is the only cause why virginity is good.

IV. It is clear, second, from the doctrine of the Fathers against Jovinian: read Jerome against the same, read also Ambrose On Virginity and Augustine On Holy Virginity. The Church professed this doctrine from her cradle; she has always held virgins in the greatest honor and has followed them with a certain singular reverence. Surely there would have been no reason for this special esteem if she had judged virginity equal to nuptials or inferior.

It is clear, third, from intrinsic reason. For that state in which the spirit is preferred to the flesh, in which the goods proper to man insofar as he is rational are procured, in which the virtues most difficult because of the impediment of concupiscence are exercised, in which the most noble end, which is the union of the soul with God, can in itself be more fully obtained, and in which therefore generosity and greatness of soul shine forth, is more perfect and more blessed than that state in which one gives work to animal desires and procures those things which are also common to brute beasts, in which satisfaction is made to concupiscence, although within due limits, and in which it is not permitted in a special way to be free for God alone. But such is the case; therefore. The argument of the Apostle in the cited place, vv. 32-35, returns to this. Augustine brings forward another reason in the book On Holy Virginity, chapter 2, whose force a Christian man cannot fail to feel: "Since the whole Church herself is a virgin betrothed to one man, Christ, as the Apostle says, how worthy of honor are her members, who guard even in the flesh itself what the whole Church guards in faith, who imitate the mother of her husband and Lord? For the Church too is both mother and virgin. For whose integrity do we consult, if she is not a virgin? Or whose offspring do we address, if she is not a mother? Mary corporally bore the Head of this body; the Church spiritually bears the members of that Head. In each, virginity does not impede fecundity; in each, fecundity does not take away virginity. Therefore, since the whole Church is holy both in body and spirit, and yet the whole is not virgin in body, but in spirit, how much holier is she in those members in whom she is virgin in body and spirit?"

V. But that marriage is a sacrament indeed makes it the case that grace is conferred upon spouses ex opere operato, and that the necessary actual graces are given for the operations of their state; but it does not make their operations more perfect than those which are proper to the other state, nor does it prevent sanctifying grace, and the same grace more abundantly, from being acquired by virgins ex opere operantis. But the perfection and blessedness of a state is situated in the perfection of its proper acts and in the very possession of grace, not in the mode by which that grace is acquired.

VI. But those things which Augustine piously and subtly discusses concerning the perfection of married persons in the Old Testament, even of those who spread children among several wives, to whom he does not dare to prefer the continence of Christians (On the Good of Marriage, chapter XIX ff.), these things, first, do not regard all indiscriminately, but those Patriarchs, and those like them if there were any, whose sanctity is commended to us in the Scriptures; for he openly names them, and it easily appears that Augustine always directs his mind to them. Second, according to Augustine, the perfection of the Patriarchs using marriage, not less than the perfection of the continent in the New Law, is nevertheless not the perfection proper to the state, but the perfection of the person (cf. chapter XXIII), which perfection in those men the use of marriage did not impede; because, as he supposes, they applied themselves to children not from any lust but from the sole will of propagating the people, or worshippers of God, and therefore from a will moved by charity, and that indeed in that age in which the people of God, God so disposing, was to be propagated by carnal generation. Therefore, according to the same Augustine, they bore a soul prepared for continence and would actually have embraced it if they had believed that, in that age, it was more expedient for them. Therefore, comparing their continence in preparation of soul and in true desire for it with the actual continence of Christians, Augustine does not dare to prefer these to those. But third, you see that the reason for the excellence of the Patriarchs is finally placed by Augustine in continence, which, as he supposes, they had in vow; and therefore, from this very discussion of Augustine, continence in itself excels the use of marriage.

You will say: abstinence from marriage deprives of the greatest good, that is, the increase of peoples; therefore it is certainly not better than the use of marriage.

I answer: abstinence deprives the man himself who abstains of the greatest good: I deny; for his greatest good is not offspring. It deprives others: I subdistinguish; with injury, I deny (see following, n. 74); apart from injury, I again subdistinguish: namely, when a disposition suitable in itself has even been obtained for procuring for the community goods more excellent than a simple increase, I concede; when the increase of the community is impeded, I again subdistinguish: an increase useful and desirable, I deny, for as long as natural inclination in general exercises its force, that will never be lacking; a possible increase, I again subdistinguish: one that would for the most part be harmful, and can be compensated by better goods through the said abstinence, I concede; otherwise, I deny. Cf. the following thesis.

I ASSERT first that some of the Evangelical counsels are holy, against the heretics, as related by Bellarmino lib. 1. cap. 8. First the counsel of Castity is proved.

THE FIRST place of Scripture is adduced by D. Bonavent. in Diaeta salutis, titulo 6. cap. 2. Matth. 19. There are Eunuchs, who have made themselves eunuchs for the kingdom of heaven. He that can take it, let him take it. That these are they who vow continence in religion, S. Epiphanius asserts, haeresi 58. S. Hieronymus on this place; S. Augustinus, lib. de sancta Virginitate, cap. 30. S. Fulgentius, lib. de fide ad Petrum, cap. 3. That here indeed it is not commanded is plain, because above he said, praising matrimony: What God hath joined together, let no man put asunder, and it is confirmed by what follows: He that can take it, let him take it, as D. Bonavent. notes, serm. 6. de tempore.

Pseudomartir, de caelibatu, and others answer, that that is signified significatively "for the kingdom of heaven," on account of preaching the Gospel more expeditiously.

But against them are all the holy Fathers, expounding with us: Cyprianus, de habitu Virginum. Hilarius on this place. Chrysostomus here. Hieronymus lib. I. in Iovinianum. Augustinus de sancta Virginitate, cap. 24. The same hold Beda, and Anselmus, here.

Here he alludes to that of Isaïae cap. 56. Let not the Eunuch say: Behold I am a dry tree. For thus saith the Lord to the Eunuchs: They that shall keep my sabbaths, and choose the things that please me, and hold fast my covenant: I will give them in my house, and within my walls, a place, and a name better than sons and daughters: I will give them an everlasting name, that shall never perish.

THAT what is here treated of is those continent of their own will, of whom Matth. 19. speaks, not of the maimed, or so born, who are continent of necessity, the Saints teach: Hieronymus, and Cyrillus on this place; Augustinus in the Book de sancta Virginitate, cap. 24. Basil. lib. de vera virginitate. Ambrosius in the exhortation to the Virgins; and Gregorius, 3. part. Pastoralis, cap. 29. And it is plain from the reward, that there is promised to them a greater glory than that of the sons and daughters of God.

S. Augustinus adds subtly: If anyone contend that Isaias speaks of true Eunuchs, still our cause is helped; for if to Eunuchs, who are continent of necessity, there is promised a greater glory than to the just who are married; certainly a greater will be given to those continent of their own will.

THAT here continence is not commanded but urged, the aforesaid Fathers teach; S. Hieronymus proves it from those words: They that shall choose the things that I will. That the vow of continence is holy is proved, because eternal glory is promised to it. D. Augustinus praises this vow excellently, lib. de sancta Virginitate, cap. 25. as is related at the end from D. Bonaventura.

IT IS PROVED secondly by D. Bonavent. on 3. sapientiae: Blessed is the barren and unspotted, who hath not known a sinful bed: she shall have fruit in the visitation of holy souls. And the eunuch, who hath not wrought iniquity with his hands, nor thought wicked things against God: for a special gift of faith shall be given him, and a portion in the temple of God. For the fruit of good labours is glorious, and the root of wisdom that never faileth. That this place is like the former, D. Hieronymus teaches, loco citato.

IT IS PROVED thirdly by D. Bonavent. in 4. d. 38. art. 2. quaest. 1. in corpore; for the Lord compares the Church to the good earth, of which one part rendered fruit a hundredfold, another sixtyfold, another thirtyfold; which place, expounding, Cyprianus, de habitu Virginum; Hieronymus, lib. I. in Iovinianum; Augustinus, de sancta Virginitate, cap. 44. et 45. teach that by that parable is distinguished the merit of chaste marriage, widowhood, and virginity. From which it is plain that Virginity is a greater good and more meritorious than conjugal chastity, and so is a counsel of God.

IT IS PROVED fourthly by D. Bonavent. in the exposition of the Missa, at the fraction of the most holy Hostia, and in the serm. de Virginibus, from prima Corinth. 7. where the counsel of continence is proposed in many ways: It is good for a man not to touch a woman. Likewise: It is good for a man so to be. Likewise: Art thou loosed from a wife? Seek not a wife. Similarly: But I say to the unmarried and to the widows: it is good for them if they so continue, as I also. Likewise: I would that you all were, as I myself am. Likewise: Concerning Virgins I have no commandment of the Lord, but I give counsel, as having obtained mercy of the Lord, to be faithful. Where note that Paul presents himself as a faithful minister of God in giving this counsel. Likewise: He that joineth his Virgin in marriage doth well: and he that joineth her not doth better. The unmarried and the virgin thinketh on the things of the Lord, that she may be holy in body and in spirit. Finally of the widow: She shall be married to whom she will: only in the Lord. But she will be more blessed if she so continue, according to my counsel: and I think that I also have the Spirit of God. Where thou seest that this counsel is attributed to the Holy Spirit.

Lutherus answers in the epithalamio, that the Apostle indeed indicates that he inclines to continence, but that at last he dissuades from it: But because of fornication, let every man have his own wife; and let every woman have her own husband.

Calvinus answers nearly the same in his commentary on this place, namely that he wishes to say: I would urge continence, but because it is impossible, let every man have a wife; just as if anyone should say: It would be good neither to eat nor to drink; but because without these you cannot live, eat ye and drink.

BUT on the contrary, for the Apostle says: I would: I give counsel; but I would not command: And this is the unanimous commentary of the holy Fathers. See Chrysostomum, and others on this place, Ambrosium lib. de viduis, near the end. Hieronymum lib. I. in Iovinianum. Augustinum lib. de sancta Virginitate, cap. 13. who, as if he had foreseen the empty invention of his apostate, namely that the Apostle would deter from continence, himself wrote the contrary in cap. 16.

In this manner he exhorts to virginity and perpetual continence, that he might also somewhat deter from nuptials.

MOREOVER, if continence is impossible, why does Paul labor so much in giving this counsel? And the absurdity will be plain if the sayings of the Apostle are applied after the example of Calvinus. It would surely be ridiculous for the Apostle to say: It is good not to eat. Likewise: Be without food, seek not food. Likewise: Concerning not eating I have no commandment of the Lord; but I give counsel: that no one should eat. Likewise: he that eateth doth well, and he that eateth not doth better. Likewise: he doth not sin who eateth, but he will be more blessed, if he so continue according to my counsel. From the ridiculous doctrine of Calvinus these absurdities would follow.

NOR does he wish all to have necessity of marrying, as Lutherus himself confesses, who excepts those who have the gift of continence, but warns those who are unwilling to be contained to marry, lest they fornicate: He that containeth not, let him marry.

Petrus Martyr answers on this place that the sense is: Let them be continent who have the gift of continence. It is good for a man not to touch a woman, that is, not to have a wife; but because almost no one can promise himself that he has this gift, let him accept the commandment, or counsel, of God, Genes. 2. It is not good for man to be alone.

BUT the answer is empty, for God said this to Adam, who in the state of innocence was adorned with the gift of continence, and he said it for the species to be preserved and for a temporal good; but the Apostle speaks universally on account of the spiritual good of the individual. Wherefore as virginity is a gift of God, so also conjugal continence: Every one hath his proper gift from God: one indeed after this manner, another after that. Therefore, as he who marries has need of this gift, and is not on that account removed from marriage, because he can obtain it from God; so also here.

They answer thirdly that Paul praises continence only as useful, either for driving away the molestations of marriage (Lutherus says, in the epithalamio) or for serving God more easily (Melancthon, and P. Martyr say).

But the Apostle asserts that it avails also for pleasing God, as D. Bonavent. notes, loco cit.: The unmarried woman and the virgin thinketh on the things of the Lord, how she may please God, that she may be holy in body and in spirit.

It is proved fifthly from that of Lucae primo: How shall this be done, because I know not man? and from prima Timot. 6. For when they have grown wanton in Christ, they will wish to marry: having damnation, because they have made void their first faith. I have sufficiently expounded these places in the preceding disputation, quaest. 10. where I showed that vows are pleasing to God.

It is proved also from the sacred Councils: Ancyrano can. 18. Chalced. generali can. 16. Carthag. tertio cap. 33. and Carthag. quarto cap. ultimo; Toletano quarto cap. 55. Turon. 2. cap. 16. Maguntiensi cap. ultimo, where it brings in the Elibettinum decree 13. and the sixth of Colonia. Romano sub Sylvestro can. 10. and Fotouilicense, where the solemn vow of virginity is enjoined to be most gravely observed.

The same the SS. Pontifices impose: Clemens lib. 3. Constit. Apostolicarum, cap. 1. Cyricius epist. prima, cap. 6. Innocentius I. epist. 2. cap. 12. Leo I. epist. ad Rusticum Episcopum Narbonensem, which is 90. cap. 13. Gelasius epist. 33.

In the same way Constantinus Magnus Imperator abrogated that law of the Romans, by which the childless, or those bereft of children, were deprived of hereditary succession. The cause of the abrogation Eusebius writes, lib. 4., to have been on account of those who vowed celibacy out of piety, lest the political Law seem to punish piety.

Thus also Iovinianus Imperator made a Law, that no one should dare to seek a sacred Virgin in marriage, nor look upon her immodestly, as had been done in the time of Julian the Apostate, and he imposed the punishment of death. Lutherus was guilty of this punishment. Sozomenus writes this law, lib. 6. cap. 3. and it still exists in C. lege si quis, de Episcopis, et Clericis.

It is proved also by D. Bonavent. both in Pharetra lib. 1. cap. 38. and in 4. sent. d. 38. quaest. 9. from the Fathers, who commend the vow of chastity wonderfully, as most pleasing to God and profitable to salvation.

S. Gregorius lib. 15. moral. cap. 12.: The virginity of the flesh was by no means commanded, but only praised. For if it were commanded, surely marriage would now be turned into a fault.

S. Augustinus lib. de virginitate sancta, cap. 12. Tom. 6.: Assuredly the Virgins will have something great beyond the others in that common immortality of the saints, because they have something already not of the flesh in the flesh. And below, cap. 27.: The Virgins are they, and they follow the Lamb whithersoever he goeth. Whither do we think this Lamb goeth? Certainly whither no one either dareth or is able to follow him, unless you? Where I believe the joys are great, perchance distinguished from all the other joys in that kingdom. The joys of the Virgins are Christ's: of Christ, in Christ, with Christ, after Christ, through Christ, for the sake of Christ. And cap. 5.: That birth of one holy Virgin is the glory of all holy Virgins. And those Virgins themselves, with the Virgin Mary, are the Mothers of Christ, because they do the will of his Father.

S. Cyprianus de habitu, et disciplina Virginum, cap. 3. Tom. 2.: If continence followeth Christ, virginity is destined for the kingdom of God.

D. Ambrosius lib. 3. de virginitate, Tom. 4.: They who do not marry, and do not take wives, are as Angels on earth, that they may not feel the tribulation of the flesh, may know not servitude, and that, as it were stripped of the infirmity of the body, they may think not the things of man, but the things of God.

I ASSERT secondly that the vow of poverty is a holy Counsel of God. Thou hast very many arguments and authorities in D. Bonavent. in Apologia Pauperum, of the third responsio, chapter one.

It is proved by D. Bonavent. in the first place cited, and in Diaeta salutis, tit. 4. cap. 1. near the end, and tit. 6. cap. 2. from that of Matth. 19.: If thou wilt be perfect: Go, sell all that thou hast, and give to the poor, and thou shalt have treasure in Heaven. D. Aug. epist. 89. quaest. 4. and in Psal. 103. concion. 3. refers this whole place excellently to the Monastic profession.

Calvinus answers lib. 4. Instit. cap. 13. § 13. that that young man lied, when he said: All these things I have kept (that is, the commandments) from my youth, and therefore Christ, mocking him, said to him: Go, sell, etc. That he had not fulfilled the commandments he proves, because the great commandment is to love God above all things, and yet he did not love God with his whole heart, because, having heard: Go, sell all things for love of me, he went away sad.

But Calvinus strikes his foot with the hoe; for if Christ imposed that commandment on that young man, impossible no less than to number the stars of heaven (as he himself says), by what argument is he convicted of sin, because he went away grieving?

The same Petrus Martyr answers nearly with Calvinus; therefore both, now reprobate, lie.

I press the point, for in 10. Marci it is said: Christ loved him. By what argument then do they either convict him of lying, or ironically lead him on to things simply impossible?

Pseudomartyr insists that this is a commandment: If thou wilt be perfect, for in Matth. 5. we are commanded: Be ye perfect, as also your Father is perfect.

It is answered that that perfection, like that of the eternal Father, is simply impossible, unless one be some god; therefore only imitation is urged in charity, not is every work commanded.

Martyr answers that this commandment was given to this young man alone.

Titius, the missionary rector in England, doubts whether he would incur the suspension which, in the Fourth Council of Westminster, decree XI, number 9, was enacted against ecclesiastics initiated into sacred orders who “are present at stage performances in public theaters or in places temporarily serving for the use of a public theater,” if he were present at performances which a certain confraternity of young people of both sexes was accustomed sometimes to give in the elementary schools of his mission. He therefore asks his bishop to resolve the doubt. The bishop refers the matter to a meeting of all the bishops which was to be held shortly afterward for conducting business. They decide that all performances other than those presented by boys or girls, even in elementary schools, are comprehended by the provincial law. The diocesan bishop communicates this decision to Titius and afterward to several of his other priests when occasion arises. Notwithstanding this decision, grave doubts about the proposed question still trouble Titius. Hence he asks:

1. To whom does it belong to interpret a law?

2. What kind of promulgation is required in order that a law may bind?

3. Who are subject to laws enacted in a provincial council?

4. What is to be said concerning the case?

1. To whom does it belong to interpret an ecclesiastical law?

Law is interpreted authentically by the legislator, and such interpretation has the force of law if it be duly promulgated. It is interpreted doctrinally by theologians and canonists, whose authority is worth as much as it proves. It receives a customary interpretation from the way in which it is observed, for custom is the best interpreter of law, and from the practice of the curia, or the way in which it is applied in the ecclesiastical courts.

2. What sort of promulgation is required that a law may bind?

All are agreed that due promulgation is required in order that a law may have binding force. Promulgation is not a mere diffusion of knowledge concerning the existence of a law procured through the public press or by similar means. It is a publication of the law made by lawful authority, with a view to imposing an obligation on subjects to act as the law prescribes. It is left to the legislative authority to decide how a law is to be promulgated. Sometimes a special mode of promulgation is laid down in the law itself. Thus the decree Ne temere, Aug. 2, 1907, was promulgated by the very fact of its being transmitted to the Ordinaries. By the apostolic constitution Promulgandi of Sept. 29, 1908, Pius X decreed that “henceforward the Pontifical constitutions, laws, decrees, and other ordinances of the Roman Pontiffs, of the Sacred Congregations, and of the Offices, inserted and published in the said Bulletin (Acta Apostolicae Sedis) with the authorization of the secretary or of the highest Official of the respective Congregation or

Office from which they emanate, in this, and only in this manner be considered as legally promulgated, whenever promulgation is necessary and the Holy See has not otherwise provided.”

Episcopal laws are generally promulgated by being read in synod or in the churches of the diocese.

3. Who are subject to laws made by a Provincial Council?

Laws made in a Provincial Synod after recognition by the Sacred Congregation of the Council and promulgation by the Metropolitan bind all members of the Church who have a domicil or quasi-domicil within the territory represented by the synod, and who are not exempted. Even the bishops are subject to provincial laws, although they can dispense in them in particular cases. The interpretation of provincial law made by bishops either singly or gathered together in bishops’ meetings, is not authentic, but rather doctrinal, although of course a bishop can if he pleases make a law for his own diocese.¹

1 Laurentius, Institutiones Jur. Eccles., n. 228.

4. The case. Titius, a missionary rector in England, doubted whether he would incur the suspension inflicted by provincial law by the fact itself on ecclesiastics in Sacred Orders who are present at stage plays in public theaters or in places serving for the time as public theaters, if he were to be present at a play given by a confraternity of young people of both sexes in the elementary schools of his mission. He referred the doubt to the bishop, who brought it before the other bishops at their meeting. The bishops decided that all plays given by others than mere children even in schools are comprehended in the law. The decision was communicated to Titius by his bishop, who on occasion communicated it to others as well. Notwithstanding this Titius still has grave doubts on the point.

It will be clear from what we said above that the decision of the bishops has not of itself the force of law. The main question is: Does the case come under the provincial law according to its natural signification? The chief difficulty is: Are elementary schools places serving for the time being as a public theater when a play is given in them? If private theatricals were held in a school for a few friends of the confraternity, it clearly would not be used as a public theater. But if the play is not private but public, in the sense that any one who chooses to present himself is admitted, then it would seem that the very fact of a play given there makes it a place serving the purpose of a public theater for the time. It is immaterial whether payment be required or not. So that it would seem that the decision given by the bishops was a declaration of the law according to its natural and obvious sense. Of course the sense of a positive law like the one with which we are concerned may be limited or extended by custom. This law is limited by custom in England to the extent that plays given by children do not come under it. In some dioceses it is said that custom goes further and excludes from the meaning of the law plays given by amateurs in schools and other such places. Whether in any particular diocese there exists such a custom against the law, and whether it is legitimate or not, are questions of fact to be settled by the evidence.

Lucius, an Englishman, having been ordered by his doctor to seek southern regions because of the mildness of the climate, determines within himself to go to Rome and spend the winter there. A man of timorous conscience, he first asks his usual confessor to resolve certain doubts concerning the manner of life to be adopted at Rome. For he doubts whether he will be bound with the Romans to abstain from meat not only on Friday but also on Saturday; whether he can eat meat with them on Wednesday during Advent; whether, notwithstanding a certain decree of the Cardinal Vicar of the City, it is lawful for him to visit Protestant churches there even when offices, or “services” as they are called, are being celebrated; whether he is bound to observe all the holy days of obligation, several of which are not obligatory in England; and finally whether the same answer is to be given even if he remains there for six or seven months. The confessor replies that the simplest rule is to be observed: “When you are at Rome, live according to the Roman manner,” and dismisses him. Hence it is asked:

1. Who is called an inhabitant, a traveler, and a vagrant?

2. By what laws are travelers bound?

3. What is to be said concerning the case?

1. Define the terms inhabitant, traveler, vagrant. A person is called an inhabitant of the place where he has his domicil. A domicil is acquired in a place by actually taking up one’s abode there with the intention of living there perpetually. By ecclesiastical law a quasi-domicil renders a person subject to most ecclesiastical laws like a true domicil. This quasi-domicil is acquired by living in a place with the intention of remaining there for the greater part of a year.

A traveler is one who for a short time, less than six months, takes up his abode in a place other than that in which he has his domicil or quasi-domicil.

A vagrant is one who has no fixed abode, neither domicil nor quasi-domicil, anywhere.

2. To what laws are travelers subject?

Travelers, or strangers, are subject to the common ecclesiastical law which is observed in the place where they stay. They are also subject in the matter of contracts to the law of the place where they conclude them, and if they commit crimes there, they can be punished according to the law of the place where they commit them. Unless required for the avoidance of scandal, a stranger is not bound by the special laws of the place where he is staying, probably not even if there is a similar special law in his own country; for laws only bind subjects, and a stranger is not a subject. Neither is a stranger bound by the special laws of his own country while he is out of their jurisdiction, for a law is restricted to the territory of the legislator.

3. The case. Lucius, an Englishman, determines for reasons of health to pass the winter in Rome. As he is a man of delicate conscience he asks his confessor, before starting, to settle certain doubts as to what he may or should do while staying in Rome. First of all he wants to know whether he will be obliged to abstain from flesh-meat not only on Fridays but on Saturdays as well, as they do in Rome. Inasmuch as Saturday abstinence is part of the common law, though in England and in many other countries a dispensation has been granted, and a stranger is bound by the common law wherever it is observed, Lucius should abstain on Saturdays while he is in Rome, if his health permits him. He may, however, eat meat on the Wednesdays in Advent, for the fast and abstinence observed on those days in England is not part of the common law. By an Instruction of the Cardinal-Vicar of Rome, July 12, 1878, approved by Leo XIII, all were strictly prohibited from visiting Protestant places of worship in Rome during service, and Lucius wishes to know whether he is bound by this law. If this were a merely positive precept, Lucius would not be bound by it, but in the circumstances which exist in Rome it is a precept whose observance is required by the necessity of avoiding scandal and of showing no approbation of heresy. Lucius would therefore be bound by it. With regard to days of obligation he is bound to observe all those which belong to the common law, though they may be suppressed and observed only as days of devotion in England. He is not bound to observe those which are merely local. If he had the intention of staying in Rome for six or seven months, he would become subject to the local law, and would therefore be under the obligation of keeping the local days of obligation. From what has been said it is clear that there are exceptions to the generally wise rule: “When you are in Rome, do as Rome does.”

Titius, a confessor, remains doubtful whether certain drunkards who belong to his mission sin or not by omitting Mass on Sunday. The circumstances of the case are as follows. Every Saturday afternoon these men receive their wages for the week’s labor. Having received the money, they immediately go to the tavern and drink until they are drunk. They return home at about eleven o’clock at night, when the tavern closes, and on the following day suffer the effects of drunkenness in bed. Titius doubts whether they are guilty not only of drunkenness but also of the Mass omitted on Sunday, for they are drunk before the law begins to urge, and when it urges they are incapable of fulfilling the law. Hence it is asked:

1. What causes exempt from a law, and what causes excuse from a law?

2. Is it lawful voluntarily to posit either kind?

3. Is someone bound, if he can, to remove an excusing cause in order to fulfill the law?

4. What is to be said concerning the case?

1. What are causes exempting from a law and causes excusing from a law?

Causes exempting remove a subject from the jurisdiction, as does departure from the territory within which the law binds. Causes excusing relieve him of the obligation of obeying the law though he remains subject to it.¹

1 Bucceroni, vol. i, no. 216.

2. Is it lawful to put both causes exempting and causes excusing voluntarily?

A subject may put causes exempting voluntarily, for a law does not compel a man to remain subject to it; it only obliges him to act in conformity with it as long as he remains subject. By special law, however, one who has incurred a reserved case in one diocese can not be absolved from it if he go to another diocese with the intention of getting absolution there.

While remaining under the jurisdiction of the law, a subject may not do anything with the intention of avoiding the obligation of complying with it. But for a sufficiently grave reason he may do something, although he foresees that the doing of it will make it impossible for him to comply with a positive law.

3. Is one bound to remove an excusing cause if he can, so as to be able to comply with a law?

Much depends on the nature of the law in question, for some laws bind more strictly than do others. Thus Lehmkuhl says: “Nor do they judge that anyone is bound by force of the law of hearing Mass to procure release from a censure, liberation from prison, etc., if, being imprisoned, he cannot assist at Mass, unless perhaps for a long time, or through design lest he be present at the sacred rite, he neglects these things. Nevertheless, they hold that someone is bound to remove those bonds or impediments by reason of the precept of Easter Communion; for which precept, even several days before the time of the law becomes urgent, it is not lawful to place an impediment, unless a sufficiently grave cause is present.”²

2 Theol. Mor., vol. i, n. 158.

4. The case. Titius, a confessor, doubts whether some drunkards in his parish commit sin by omitting Mass on Sundays. Every week these men get their week’s wage after mid-day on Saturday. They go straight to the public-house and get drunk, returning home about 11 p.m. when the public-house closes. Next day they sleep off the effects of drink in bed. Although they certainly sin against temperance, Titius doubts whether they commit sin by not hearing Mass, for they are drunk before the time when the law of hearing Mass begins to be urgent, and when Sunday comes they are too ill to get up. If there were question of putting some honest excusing cause, the doubt of Titius would be well founded. Thus Gury says: “It would be lawful, from mere pleasure, to enter upon a journey which would impede attendance at Mass throughout the whole of Saturday, up to one or another hour before Sunday.”¹ This, however, can not be applied to our case. For in this matter much depends on the intention of the legislator. He does not intend to restrict the liberty of his subjects so far as to compel them to forego honest recreation on Saturday, though this will prevent them hearing Mass on Sunday. But the legislator does not use the same indulgence in favor of drunkards, who get drunk on Saturday afternoon, foreseeing that they will not be in a fit state to hear Mass on Sunday. They sin, then, not only against temperance, but also against the obligation of Sunday Mass.

1 Gury, in Génicot, vol. i, no. 116.

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?

1. Besides printing, many methods are now in vogue for multiplying copies of a document. Commonly the document is written out with special ink on special paper: the copy thus used is called a stencil; and from it other copies are struck off. We will suppose the stencil to be that page of the Eternal Law written in the Mind of God, which regulates human acts, technically so called. The copies struck off from that stencil will be the Natural Law in the mind of this man and of that. Now, as all who are familiar with copying processes know too well, it happens at times that a copy comes out very faint, and in parts not at all. These faint and partial copies represent the Natural Law as it is imperfectly developed in the minds of many men. In this sense, and as we may say subjectively, the Natural Law is mutable, very mutable indeed. Still, as no one would say that the document had been altered, because some copies of it were bad, so it is not strictly correct to say that the Natural Law varies with these subjective varieties. Appeal would be made to a full and perfectly printed impression of the document, one that rendered the stencil exactly. The Natural Law must be viewed in like manner, as it would exist in a mind perfectly enlightened concerning the whole duty of man, and exactly reproducing in itself that portion of the Eternal Law which ordains such duty. Were such a mind to discern a natural obligation to lie differently at two different times, all the relevant circumstances being alike in both cases, and the moral solution different, then only could the Natural Law be held to have changed.

2. But this is clearly impossible. The conclusion of a geometrical theorem is a truth for all time. There is no difference here between a complicated theorem, having many conditions, and a simpler theorem with fewer. It is indeed easier for a few than for many conditions to be all present together: but the enunciation of the conclusion supposes all the conditions, whatever their number. The same in a practical manner, as in the stability of a bridge. The bridge that would stand in England, would stand in Ceylon. If it would not, there must have occurred some change in the conditions, as the heat of the tropical sun upon the girders. A point of casuistry also, however knotty, once determined, is determined for ever and aye, for the circumstances under which it was determined. The Natural Law in this sense is absolutely immutable, no less in each particular application than in the most general principles. We must uniformly pass the same judgment on the same case. What is once right and reasonable, is always right and reasonable, in the same matter. Where to-day there is only one right course, there cannot to-morrow be two, unless circumstances have altered. The Natural Law is thus far immutable, every jot and tittle.

3. No power in heaven above nor on earth beneath can dispense from any portion of the Natural Law. For the matter of the negative precepts of that law is, as we have seen, something bad in itself and repugnant to human nature, and accordingly forbidden by God: while the matter of the positive precepts is something good and necessary to man, commanded by God. If God were to take off His command, or prohibition, the intrinsic exigency, or intolerableness, of the thing to man would still remain, being as inseparable from humanity as certain mathematical properties from a triangle. Pride is not made for man, nor fornication, nor lying, nor polygamy [Footnote 14]: human nature would cry out against them, even were the Almighty in a particular instance to withdraw His prohibition. What would be the use, then, of any such withdrawal? It would not make the evil thing good. An evil thing it would still remain, unnatural, irrational, and as such, displeasing to God, the Supreme Reason. The man would not be free to do the thing, even though God did not forbid it. It appears, therefore, that the Divine prohibition, and similarly the Divine command, which we have proved (c. vi., s. ii., nn. 10, 11, p. 121) to be necessarily imposed in matters of natural evil and of naturally imperative good, is imposed as a hard and fast line, so long as the intrinsic good or evil remains the same.

¹⁴ There is a theological difficulty about the polygamy of the patriarchs, which will be touched on in Natural Law, c. vi., s. ii., n. 4. p. 272.

4. There is, therefore, no room for Evolution in Ethics and Natural Law any more than in Geometry. One variety of geometrical construction, or of moral action, may succeed another; but the truths of the science, by which those varieties are judged, change not. There is indeed this peculiarity about morality, distinguishing it from art, that if a man errs invincibly, the evil that he takes for good is not formally evil, or evil as he wills it, and the good that he takes for evil is formally evil to him. (c. iii., s. ii., n. 7, p. 33.) So there is variation and possible Evolution in bare formal good and bare formal evil, as ignorance gradually changes into knowledge; and likewise Reversion, as knowledge declines into ignorance. Even this Evolution and Reversion have their limits: they cannot occur in the primary principles of morality, as we saw in the last section. But morality material and objective,—complete morality, where the formal and material elements agree, where real wrong is seen to be wrong, and real right is known for right—in this morality there is no Evolution. If Hannibal offered human sacrifices to his grandfather because he knew no better, and could not have known better, than to think himself bound so to do, he is to be excused, and even praised for his piety: still it was a mistaken piety; and the act, apart from the light in which the doer viewed it, was a hideous crime. An incorrupt teacher of morals would have taught the Carthaginian, not that he was doing something perfectly right for his age and country, which, however, would be wrong in Germany some centuries later, but that he was doing an act there and then evil and forbidden of God, from which he was bound, upon admonition, instantly to desist.¹⁵

¹⁵ The author has seen reason somewhat to modify this view, as appears by the Appendix. (Note to Third Edition.)

5. There are Evolution and Reversion in architecture, but not in the laws of stability of structure, nor in the principles of beauty as realized in building. A combination, ugly now, was not beautiful in the days of Darius. Tastes differ, but not right tastes; and moral notions, but not right moral notions. It is true that questions of right and wrong occur in one state of society, that had no relevance in an earlier state, the conditions of the case not having arisen. But so it is in architecture; there are no arches in the Parthenon. The principle of the arch, however, held in the age of Pericles, though not applied.

6. The progress of Moral Science is the more and more perfect development of the Natural Law in the heart of man, a psychological, not an ontological development. And Moral Science does progress. No man can be a diligent student of morality for years, without coming to the understanding of many things, for which one would look in vain in Aristotle's Ethics and Politics, or in Cicero, De Officiis, or even in the Summa of St. Thomas, or perhaps in any book ever written. New moral questions come for discussion as civilization advances. The commercial system of modern times would furnish a theme for another De Lugo. And still on this path of ethical discovery, to quote the text that Bacon loved, "Many shall pass over, and knowledge shall be multiplied." (Daniel xii. 4.)

Readings.—St. Thos., Supplement, q. 65, art. 1, in corp.; ib., q. 65, art. 2, in corp., and ad 1; Hughes, Supernatural Morals, pp. 67, 68, reviewed in The Month for August, 1891, pp. 542, 543.

1. The sanction of a law is the punishment for breaking it. The punishment for final, persistent breach of the natural law is failure to attain the perfect state and last end of the human soul, which is happiness. If existence be prolonged under this failure, it must be in the contrary state of misery. This failure and misery is at once a natural result and a divine infliction. It is the natural result of repeated flagrant acts of moral evil, whereby a man has made his nature hideous, corrupted and overthrown it. (c. vi., s. i., nn. 4, 5, p. 111.) For an end is gained by taking the means, and lost by neglect of the means thereto. Now, as we have seen, happiness is an intellectual act, the perfection of an intellectual or rational nature (c. ii., s. ii., p. 6); and the means to it are living rationally: for a reasonable being, to do well and fare well, must live by that reason, which is the form of his being. (c. vi., s. i., n. 4, p. 111.) Whoever therefore goes about contradicting the reason that is within him (c. v., s. iii., n. 3, p. 74) is not in the way to attain to happiness. Happiness the end of man, the creature of all others the most complex, is not to be stumbled upon by chance. You may make two stones lean upright one against the other by chance, but otherwise than by a methodical application of means to the end you could not support the spire of Salisbury Cathedral.

2. Man's is a progressive nature (c. vi., s. i., nn. 2,3, p. 109), himself being the director of his own progress. Other progressive natures may be spoilt by their requirements being denied, and contrary things done to them. Man has his requirements. It depends mainly on himself whether he acts up to them or against them. If he acts against them, he so far spoils himself; and once he is thoroughly spoilt by his own doing, the final perfection of humanity is gone from him for ever. It is the natural result.

3. I have spoken (n. 1) of repeated flagrant acts: not that I would ignore the evil set of the will that results from one gross and deliberate evil deed (see c. ix., s. ii., n. 6, p. 168): but because the case is clearer where the acts have been multiplied. However we must not omit to observe, that it is not any vice, or evil habit, that formally unfits a man for his final happiness, but an actual evil set of the will, coming of actual sin unrepented of, which set is more decided, when that uncancelled sin is the last of many such, and the outcome of a habit. But supposing an habitual sinner to have repented, and his repentance to have been ratified by God, and that he dies, not actually in sin, but before the habit of sin has been eradicated (c. v., s. ii., n. 1, p. 69),—we may say of him, that his "foot is set in the right way," that is, his will is actually right, and the obstacle to happiness is removed. The evil habit in him is not an actual adhesion of his will to evil, but a proneness to relapse into that state. It is only remotely and potentially evil. It is a seed of evil, which however will not germinate in the good and blissful surroundings to which the soul has been transplanted, but remain for ever sterile, or rather, will speedily decay.

4. If we leave God out of morality, and take account only of the philosophical aspect of sin (c. vi., s. ii., n. 6, p. 119), we have nothing further to say of the sanction than this, which has been said: "Act against nature, and you will end by ruining your nature, and fail of your final perfection and happiness." But now God comes in, the giver of the law of nature; and the failure, already a natural result, must henceforth be viewed also as a Divine chastisement. There is no law without a sanction. There is no law, the giver of which can allow it to be broken with impunity. A legislator who dispensed with all sanction, would rightly be taken by young and old not to be in earnest in his command. If then God must give a law to man whom He has created (c. vi., s. ii., n. 9, p. 120), He must attach a sanction to that law; and if the law is according to the exigency of human nature (c. vi., s. ii., n. 11, p. 122), so will the sanction also be the natural outcome of that exigency set at naught and that law broken.

5. Our position gains by the consideration, that the object, in the contemplation of which man's soul is to be finally and perfectly blessed in the natural order, is the Creator seen through the veils of His works. (c.ii., s.iv., p. 21.) This mediate vision of God, albeit it is to be the work of a future existence, needs practice and preparation in this life. God will not be discerned by the man who has not been accustomed to look for Him. He will not be seen by the swine, who with head to earth has eaten his fill of sensual pleasures, and has cared for nothing better. He will not be seen by the covetous man and the oppressor, who never identified His image hidden away under the labour-stained dress of the poor. He will not be seen by the man, who never looked up into His face in prayer here below. He will not be seen by the earth-laden spirit, that cared nothing at all for God, that hated the mention of His name, that proclaimed Him, or at least wished Him, not to be at all.

6. It will be said that this argumentation supposes the habits of vice, contracted on earth, to remain in the soul after departure: but there is no proof of that: nay of some vices—those that have more to do with the body, as drunkenness—the habits cannot possibly remain, seeing that the appetite wherein they were resident has perished with the body. First, as regards the instance cited, I reply that we may consider drunkenness in two ways, on the one hand as a turning to the creature, on the other as a turning away from reason and the Creator. The craving for liquor cannot remain in the soul after death exactly as it was before, though it probably continues in some analogous form, as a thirst for wild and irregular excitement: but the loathing and horror of the ways of reason and of God, engendered by frequent voluntary intoxication, still continues in the soul. And from this observation we draw the general answer, that whereas in every sin, whether sensual or spiritual, the most important part is played by the will, and the will is a spiritual, not an organic faculty, a faculty which is a main element of the soul whether in or out of the body,—therefore the evil bent and inclination of the will, which sin involves, must remain even in the departed spirit. Lastly, we may ask: To what purpose is our free-will given us, if all souls, good and bad alike, users and abusers of the liberty they had on earth, enter into their long home all of one uniform and spotless hue?

7. Thus then it comes to be, by order of nature and good consequence, that the man who has abandoned God, goes without God; and he who has shunned his last end and final good, arrives not unto it; and he who would not go, when invited, to the feast, eats not of the same: and whoso has withdrawn from God, from him God withdraws. "A curse he loved, and it shall come upon him; and he would not have a blessing, and it shall be far from him. He put on the curse like a garment, and it has gone in like water into his entrails, and like oil into his bones,—like a garment which covereth him, and like a girdle wherewith he is girded continually." (Psalm cviii. 18, 19.)

8. Conversely, we might argue the final happiness which attaches to the observance of the law of nature. (c. ii., s. v., p. 26.)

Readings.—St. Thos., Cont. Gent., iii., cc. 140, 141, 143, 145.

1. By a final, as distinguished from an eternal state, is here meant the last state of existence in a creature, whether that state go on for ever, in which case it is final and eternal, or whether it terminate in the cessation of that creature's being, which is a case of a state final, but not eternal. Whether the unhappy souls of men, who have incurred the last sentence of the natural law, shall exist for eternity, is not a question for philosophy to decide with certainty. The philosopher rules everything a priori, showing what must be, if something else is. Of the action of God in the world, he can only foretell that amount which is thus hypothetically necessary. Some divine action there is, of which the congruity only, not the necessity, is apparent to human eyes: there the philosopher can tell with probability, but not with certainty, what God will do. Other actions of God are wholly beyond our estimate of the reasons of them: we call them simply and entirely free. In that sphere philosophy has no information to render of her own; she must wait to hear from revelation what God has done, or means to do. Philosophers have given reasons of congruence, as they call them, for the reprobate sinner not being annihilated, and therefore for his final punishment being eternal. Those reasons go to evince the probability of eternal punishment, a probability which is deepened into certainty by revelation. We shall not enter into them here, but shall be content to argue that a term is set to the career of the transgressor, arrived at which he must leave hope behind of ever winning his way to happiness, or ever leading any other existence than one of misery.

2. The previous question has shown that some punishment must attend upon violation of the natural law. Suppose a trangressor has suffered accordingly for a certain time after death, what shall be done with him in the end? If he does not continue to suffer as long as he continues to be, then one of three things: he must either pass into happiness, or into a new state of probation, or his very punishment must be a probation, wherein if he behaves well, he shall be rewarded with happiness at last, or if ill, he shall continue in misery until he amend. All this speculation, be it understood, lies apart from revelation. If then the sufferer passed out of this world, substantially and in the main a good man, it is not unreasonable that, after a period of expiatory suffering for minor delinquencies, he should reach that happiness which is the just reward of his substantial righteousness. But what of him who closed his career in wickedness exceeding great? Mere suffering will never make of him a good man, or a fit subject for happiness. But the suffering may be probationary, and he may amend himself under the trial. Against that hypothesis philosophers have brought a priori arguments to show that the period of probation must end with the separation of the soul from the body. But waiving all such arguments, let us suppose that there might be probation after probation even in the world to come. But some human souls would continue obstinately and unrepentingly set in wickedness, age after age, and probation after probation: for the possible malice of the will is vastly great. What is to become of such obstinate characters? It seems against the idea of probation, that periods of trial should succeed one another in an endless series. It would be a reasonable rule in a university, that an undergraduate who had been plucked twenty-five times, should become ineligible for his degree. Coming after so many failures, neither would the degree be any ornament to him, nor he to the university. A soul cannot look for seasons without end of possible grace and pardon to shine upon it. The series of probations must end somewhere. And then? We are come round to where we began. When all the probation is over, the soul is found either in conformity with the natural law, which means ultimate happiness, or at variance with the law, and becomes miserable with a misery that shall never terminate, unless the soul itself ceases to be.

3. It may be asked, how much conformity to the natural law is requisite and sufficient, to exempt a person at the end of his trial from a final doom of misery, or to ensure his lasting happiness? The question resolves itself into three:—how do sins differ in point of gravity? is grave sin ever forgiven? is the final award to be given upon the person's whole life, a balance being struck between his good and evil deeds, or is it to be simply upon his moral state at the last moment of his career of trial?

4. It was a paradox of the Stoics, that all offences are equal, the treading down of your neighbour's cabbage as heinous a crime as sacrilege. (Horace, Satires, i., 3, 115-119.) But it is obvious that there is a vast difference, as well objectively in the matter of the offence, e.g., in the instance just quoted from Horace, as also subjectively in the degree of knowledge, advertence, and will, wherewith the offender threw himself into the sin. Thus offences come to be distinguished as grave and light: the latter being such as with a human master would involve a reprimand, the former, instant dismissal. Final misery is not incurred except by grave offending.

5. The second question, whether grave sin is ever forgiven, cannot be answered by philosophy. Of course the sinner may see by the light of reason his folly and his error, and thereby conceive some sort of sorrow for it, and retract, and to some extent withdraw his will from it on natural grounds. This amendment of sin on its moral and philosophical side may deserve and earn pardon at human hands. But the offence against God remains to be reckoned for with God. Now God is not bound to forgive without receiving satisfaction; and He never can receive due satisfaction from man for the contempt that a deliberate, grave, and flagrant violation of the moral law puts upon the Infinite Majesty of the Lawgiver. The first thing that revelation has to teach us is whether, and on what terms, God is ready to pardon grievous sin.

6. The balance between deeds good and evil is not struck merely at the instant of death. It is being struck continually; and man's final destiny turns on how that balance stands at the close of his time of probation. So long as he keeps the substance of the moral law, the balance is in his favour. But one downright wilful and grievous transgression outweighs with God all his former good deeds. It is a defiance of the Deity, a greater insult than all his previous life was a service and homage. It is as though a loyal regiment had mutinied, or a hitherto decent and orderly citizen were taken red-handed in murder. If however God deigns to draw the offender to repentance, and to pardon him, the balance is restored. Thus everything finally depends on man being free from guilt of grievous transgression at the instant of death, or at the end of his period of probation, whenever and wherever that end may come.

Reading.—Lessius, De perfectionibus divinis, 1.xiii., c. xxvi., nn. 183, seq.

1. The doctrine of the last section might stand even in the mind of one who held that all punishment is probational, and destined for the amendment of him who undergoes it, to humble him, to awaken his sense of guilt, and to make him fear to transgress again. On this theory of punishment, the man who in his last probational suffering refuses to amend, must be let drop out of existence as incorrigible, and so clearly his final state is one of misery. The theory is not inconsistent with final punishment, but with eternal punishment, unless indeed we can suppose a creature for all eternity to refuse, and that under stress of torment, a standing invitation to repentance. It is however a peculiar theory, and opposite to the common tradition of mankind, which has ever been to put gross offenders to death, not as incorrigible, not simply as refuse to be got rid of, but that their fate may be a deterrent to others. Punishment, in this view, is medicinal to the individual, and deterrent to the community. Eternal punishment has been defended on the score of its deterrent force. Both these functions of punishment, the medicinal and the deterrent function, are prospective. But there is asserted a third function, which is retrospective: punishment is said to be retributive. It is on this ground that the justification of eternal punishment mainly rests. We are however here concerned, not with that eternity, but in an endeavour to give a full and adequate view of punishment in all its functions.

2. If punishment is never retributive, the human race in all countries and ages has been the sport of a strange illusion. Everyone knows what vengeance means. It is a desire to punish some one, or to see him punished, not prospectively and with an eye to the future, for his improvement, or as a warning to others, but retrospectively and looking to the past, that he may suffer for what he has done. Is then the idea of vengeance nothing but an unclean phantom? Is there no such thing as vengeance to a right-minded man? Then is there an evil element, an element essentially and positively evil, in human nature. No one will deny that the idea, and to some extent the desire, of vengeance, of retaliation, of retrospective infliction of suffering in retribution for evil done, of what we learn to call in the nursery tit for tat, is natural to mankind. It is found in all men. We all respond to the sentiment:

Mighty Fates, by Heaven's decree accomplish,
According as right passes from this side to that.
For hateful speech let speech of hate be paid back:
Justice exacting her due cries this aloud:
For murderous blow dealt let the murderer pay
By stroke of murder felt.
Do and it shall be done unto thee:
Old is this saying and old and old again.

Nor must we be led away by Mill (Utilitarianism, c.v.) into confounding retaliation, or vengeance, with self-defence. Self-defence is a natural idea also, but not the same as retaliation. We defend ourselves against a mad dog, we do not retaliate on him. Hence we must not argue that, because self-defence is prospective, therefore so is vengeance. ¹⁶ Æschylus, Choephori, 316, seq. These lines embody the idea on which the dramas of the Shakespeare of Greece are principally founded. But when was a work of the highest art based upon an idea unsound, irrational and vicious?

3. A thing is essentially evil, when there is no possible use of it which is not an abuse. Not far different is the conception of a thing positively evil, evil, that is, not by reason of any deficiency, or by what it is not, but evil by what it is in itself. Such an essential, positive evil in human nature would vengeance be, a natural thing for which there was no natural use, unless punishment may in some measure be retributive. We cannot admit such a flaw in nature. All healthy philosophy goes on the principle, that what is natural is so far forth good. Otherwise we lapse into Manicheism, pessimism, scepticism, abysses beyond the reach of argument. Vengeance undoubtedly prompts to many crimes, but so does the passion of love. Both are natural impulses. It would scarcely be an exaggeration to set down one third of human transgressions to love, and another third to revenge: yet it is the abuse in each case, not the use, that leads to sin. If the matrimonial union were wicked and detestable, as the Manicheans taught, then would the passion of love be an abomination connatural to man. Such another enormity would be the affection of vengeance, if punishment could never rightly be retributive.

4. Aristotle, Rhetoric, I., x., 17, distinguishes two functions of punishment thus: "Chastisement is for the benefit of him that suffers it, but vengeance is for him that wreaks it, that he may have satisfaction." Add to this the warning given to the commonwealth by the example that is made of the offender, and we have the three functions of punishment, medicinal, deterrent, and retributive. As it is medicinal, it serves the offender: as it is deterrent, it serves the commonwealth: as it is retributive, it serves the offended party, being a reparation offered to him. Now, who is the offended party in any evil deed? So far as it is a sin against justice, an infringement of any man's right, he is the offended party. He is offended, however, not simply and precisely by your violation of the moral law, but by your having, in violation of that law, taken away something that belonged to him. Consequently, when you make restitution and give him back what you took away, with compensation for the temporal deprival of it, he is satisfied, and the offence against him is repaired. If you have maliciously burnt his house down, you bring him the price of the house and furniture, together with further payment for the fright and for the inconvenience of being, for the present, houseless. You may do all that, and yet the moral guilt of the conflagration may remain upon your soul. But that is no affair of his: he is not the custodian of the moral law: he is not offended by your sin, formally viewed as sin: nor has he any function of punishing you, taking vengeance upon you, or exacting from you retribution for that. But what if his wife and children have perished, and you meant them so to perish, in the fire? Your debt of restitution still lies in the matter which you took away. Of course it is a debt that cannot be paid. You cannot give back his "pretty chickens and their dam" whole and alive again. Still your inability to pay one debt does not make you liable to that creditor for another debt, which is part of a wholly different account. He is not offended by, nor are you answerable to him for, your sin in this case any more than in the former.

5. We may do an injury to an individual, commit a crime against the State, and sin against God. The injury to the individual is repaired by restitution, not by punishment, and therefore not by vengeance, which is a function of punishment. There is no such thing as vengeance for a private wrong, and therefore we have the precept to forgive our enemies, and not to avenge ourselves, in which phrase the emphasis falls on the word ourselves. The clear idea and strong desire of vengeance, which nature affords, shows that there is such a thing as vengeance to be taken by some one: it does not warrant every form of vengeance, or allow it to be taken by each man for himself. It consecrates the principle of retribution, not every application of the principle. It is a point of synderesis, not of particular conduct. The reader should recall what was said of the vengeance of Hannibal at Himera. (c. viii., s. ii., p. 144.)

6. It belongs to the State to punish political sin, or crime, and to God to punish theological sin, which is sin properly so called, a breach of the Eternal Law. The man who has burnt his neighbour's house down, though he has compensated the individual owner, may yet be punished by the State. The owner, acting in his capacity as citizen, even when he has been compensated as an individual, may still hand him over to the State for punishment. The arson was a violation, not only of commutative, but of legal justice (c. v., s. ix., nn. 3, 6, pp. 103, 106), a disturbance of the public peace and social order, an outrage upon the majesty of the law. For this he may be punished by the State, which is the guardian of all these things, and which has jurisdiction over him to make laws for him, and to enforce their sanction against him. Civil punishment, besides being deterrent, is retributive for the breach of social order. It is the vengeance of the commonwealth upon the disturber of the public peace. Whether the State can punish on pure grounds of retribution, away from all hope or need of deterring possible imitators of the crime, is a question irrelevant to our present enquiry. Probably a negative answer should be returned.

7. We come now to the punishment of sin by God, the Living Reasonableness, the Head of the Commonwealth of Creation, the Legislator of the Eternal Law, the Fountain of all Jurisdiction, Him in whose hands rests the plenitude of the power to punish. An evil deed may be no wrong to any individual man, no crime against the State, but it must ever be an offence against God. It is a departure from the order of man's progress as a reasonable being (c. v., s. iii., n. 3, p. 74: c. vi., s. i., nn. 1-5, p. 109), which is founded on the nature of God Himself (c. vi., s. i., n. 7, p. 113), of which order God is the official guardian (c. vi., s. ii., nn. 8-10, p. 119), and which is enjoined by God's Eternal Law. (c. vii., n. 3, p. 129.) This law extends to all creation, rational and irrational, animate and inanimate. It bids every creature work according to his or its own nature and circumstances. Given to irrational beings, the law is simply irresistible and unfailing: such are the physical laws of nature, so many various emanations of the one Eternal Law. Given to rational creatures, the law may be resisted and broken: sin is the one thing in the universe that does break it. (c. vii., nn. 5-7, p. 130.) A man may act in disregard of the Eternal Law on one or other of its physical sides, and so much the worse for him, though he has not broken the law, but merely ignored its operation, as when one eats what is unwholesome. Much more shall he suffer for having broken the law, in the only possible way that it can be broken, by sin. This peculiar violation draws after it a peculiar consequence of suffering, penal and retributive. If a man gets typhoid fever in his house, we sometimes say it is a punishment on him for neglecting his drains, even when the neglect was a mere piece of ignorance or inadvertence. It is an evil consequence certainly,—the law, which he thought not of, working itself out in the form of disease. But it is not properly punishment: no natural law has been really broken: there has been no guilt, and the suffering is not retributive and compensatory. It does not go to restore the balance of the neglect. It is a lamentable consequence, not a repayment. As, when man wrongs his fellow-man, he makes with him an involuntary contract (c. v., s. ix., n. 6, p. 106), to restore what he takes away: so in sinning against God, man makes another involuntary contract, to pay back in suffering against his will what he unduly takes in doing his own will against the will of the Legislator. As St. Augustine says of Judas (Serm. 125, n. 5): "He did what he liked, but he suffered what he liked not. In his doing what he liked, his sin is found: in his suffering what he liked not, God's ordinance is praised." Thus it is impossible for the Eternal Law, which bears down all so irresistibly in irrational nature, finally to fail of its effect even upon the most headstrong and contumacious of rational creatures; but, as St. Thomas says (1a 2æ, q. 93, art. 6, in corp.), "The defect of doing is made up by suffering, inasmuch as they suffer what the Eternal Law prescribes for them to the extent to which they fail to do what accords with the Eternal Law." And St. Anselm (Cur Deus homo, nn. 14, 15): "God cannot possibly lose His honour: for either the sinner spontaneously pays what he owes, or God exacts it of him against his will. Thus if a man chooses to fly from under the will of God commanding, he falls under the same will punishing." Punishment is called by Hegel, "the other half of sin." Lastly, they are God's own spoken words (Deut. xxxii. 35): "Vengeance is Mine, I will repay."

Readings.—St. Thos., Cont. Gent., iii. 140, n. 5, Amplius; ib., iii., 144, nn. 8, Per hoc, and 9, Est autem.

For Plato's views on punishment see Protag. 324 A, B; Gorgias, 525; Rep. 380 B, 615; Phaedo, 113 E; Laws, 854 D; 862 D, E; 934 A; 957 E. Plato recognizes only the medicinal and the deterrent functions of punishment, and ignores the retributive. This is not to be wondered at in one who wrote: "No one is wicked voluntarily; but it is an evil habit of body and a faulty education that is the cause of every case of wickedness" (Timaeus, 86 E; cf. Laws, 731 C, D), which error receives a masterly confutation in Aristotle, Ethics, III, v.