What a law may command

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.

Concerning the object of the natural law and of divine positive law, consult what was said in nn. 83 and 89. It remains for us to speak of the object of human law. Let the proposition therefore be:

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.

88. • The object of law generally is whatever law can command or prohibit.

Principles. - I. The object of law is all and only those acts whose placing or omission can confer toward the common good. From what has been said it follows:

II. All indifferent acts taken distributively can be the object of law; for since acts of this kind can confer toward the common good, by that very fact they can be commanded or forbidden ¹.

¹ Very well known is 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 contained within the ambit of acts indifferent per se.

89. Questions. - QUESTION 1. Whether heroic acts fall under law?

I answer. Generally they do not seem to fall under law ², because they are considered morally to exceed human strength, 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. Thus guards who are soldiers cannot desert their station, even when danger of life is imminent, if the Republic would suffer detriment from it.

² This question, as is clear, is made concerning human laws. For divine law, both natural and positive, can oblige even with danger of life. Thus the holy Martyrs underwent death, and a most bitter one, not from a certain supererogation, but from obligation.

QUESTION 2. Whether human law can command merely internal acts?

I answer 1. Civil law certainly cannot, because without these acts the legislator obtains his end. - Besides, he cannot judge concerning internal acts.

2. Nor, according to many, can ecclesiastical law do this; because, they say, the legislative power of the Church pertains only to the external governance of the faithful. - St. Lig., book 1, no. 100; St. Thomas, Suarez, Benedict XIV, etc., against others who also probably affirm, because the Church received unlimited power from Christ ³.

³ The prior opinion, which denies to the Church the power of commanding merely internal acts, seems to rest more on a certain appearance of extrinsic authority than on reason. For the stronger reason which is brought forward, that the power of the Church looks to mere external governance, seems scarcely, or not even scarcely, tolerable; for does it pertain to mere external governance that she directly command attention in praying, or that she prescribe for Regulars a certain time for holy meditations?

What they add, that the Church has never commanded acts of this kind, and that this is false can be shown by not a few examples brought forward, and would conclude nothing per se; for wrongly from the negation of act is an argument made to the negation of power.

Finally they add that the Church cannot judge concerning these acts. But 1. the inference can be denied: for can she judge more concerning the interior exercise of meditation, which nevertheless she commands to Regulars? 2. But the antecedent too can be denied. For although this is true of judgment which is pronounced by man through sentence, yet it is false of judgment which, as Suarez says (On Laws, book 4, ch. 12, no. 4), is made by a legislator through law, when namely the law punishes a delict through itself, for example through a censure to be incurred by the fact itself.

**VV. (page 909) object 1. that the reasons brought here prove nothing against the sentence of the holy Doctor, who called the denying opinion more probable. I answer. They prove that which had to be proved, namely that the reasons which are customarily brought forward for the denying opinion are not suitable.

They object 2. from St. Alphonsus that the Church can indirectly command attention in praying, and meditation for Regulars. I answer 1. Those two examples are brought forward here merely to show the weakness of the reason which is customarily brought forward as principal against it, not however as examples of a merely internal act. 2. St. Alphonsus discusses the power of commanding indirectly; but in this note it had been written DIRECTLY. 3. Besides, the observation of VV. could have had force as to the first example, but by no means as to the other.

90. • QUESTION 3. Whether human law can command mixed acts, or acts partly internal and partly external?

I answer affirmatively. The reason is that mixed acts constitute at the same time one moral indivisible. Thus the Church commands devout attention in the celebration of Mass. - Thus all.

QUESTION 4. Whether human law can command external occult acts?

I answer affirmatively. Because it has the power of directing whatever is external. For occult acts by their nature do not differ from others; but that they cannot be punished happens per accidens. - St. Lig. ibid.

QUESTION 5. Whether a Confessor can enjoin merely internal acts?

I answer affirmatively. Because the office of directing penitents in the way of salvation requires this faculty. Hence he can enjoin pious meditations on penitents. - Voit, no. 163.

181. Extension. The object of law is everything which the legislator is able to establish for the good of the community whose care he has. Therefore the object of law extends as far as that which is necessary for the good of the community. "Whatever, therefore, in human affairs is in any way sacred, whatever pertains to the salvation of souls or to the worship of God, whether it is such by its own nature, or again is understood to be such on account of the cause to which it is referred, all that is in the power and judgment of the Church." Thus Leo XIII.²⁵ By these wise words the matter or object of ecclesiastical law is circumscribed, which accordingly extends to all those things which touch the Christian religion and the salvation of souls either directly or indirectly. For this reason the Church can make laws, for example, concerning the administration and reception of the sacraments, concerning churches, oratories, ceremonies, benefices, concerning the whole religious and moral life of Christians, etc. But it is plain of itself that neither the Church nor any created power can command anything which is against the divine or natural law, because an inferior legislator cannot command anything which is against a higher law.

According to St. Thomas,²⁶ the object of human law must have three conditions, namely:

1) That it be congruent with religion, insofar, namely, as it is proportioned to positive divine law.

2) That it accord with discipline, insofar as it is proportioned to the law of nature.

Human laws which are opposed to the divine or natural law cannot licitly be observed. Hence, for example, against unjust laws made against religion or favoring dueling, the so-called passive resistance must be opposed; for it is necessary to obey God rather than men.

3) That it profit salvation, insofar as it is proportioned to human utility. To these three conditions all the others are reduced which, after Isidore of Seville, are accustomed by authors to be required for the object of human law, for example, that it be honorable, just, possible, useful to the community, fitting to place and time, etc.

Especially authors are accustomed here to ask whether human law can command a) internal acts; b) heroic acts.

²⁵ Const. Immortale Dei of November 1, 1885.

²⁶ S. theol. I-II, q. 95, a. 3. The Angelic Doctor in this place beautifully explains all the conditions of human law.

182. Internal acts are called those which are produced by the intellect and will; they are called merely internal if they remain in the intellect and will, so that either in no way, or only accidentally, they are joined with an external act; but they are called mixed internal, if indeed they are produced by the intellect and will, but are joined with an external act and are referred to it either from their own nature or from a certain moral law. Merely internal acts are, for example, meditation, a special intention, the application of a Mass; mixed internal acts are, for example, attention in vocal prayer, because attention is required from the very nature of prayer, since it is the elevation of the mind to God; contrition in confession, because from the moral law confession cannot truly exist without internal contrition.

1. It is established among all that human law (whether ecclesiastical or civil) can prescribe mixed internal acts. The reason is that human law can command truly human acts, and therefore all those things which are required for a truly human act, namely, knowledge and intention. For an external act which would be done without internal knowledge and intention would be called mechanical rather than human. Thus, for example, the Church commands worthy paschal communion, the fruitful reception of the sacrament of penance. Civil power, legitimately requiring an oath, can command the internal intention of truly swearing when externally the words of the oath are uttered.

2. It is likewise established among all that civil power cannot command merely internal acts, since these directly contribute little to the end of civil society, namely, to earthly welfare. Hence also civil power in fact is never accustomed to command merely internal acts, but only the external observance of laws.

183. 3. Theologians dispute very sharply whether the Church can command merely internal acts. St. Thomas²⁷ and the Roman Catechism²⁸ seem to deny it; Cajetan,²⁹ Suarez,³⁰ Schmalzgrueber,³¹ Billuart,³² Benedict XIV,³³ Tanquerey,³⁴ Aertnys-Damen,³⁵ Vermeersch^36a expressly deny it; St. Alphonsus³⁶ calls the denying opinion more probable. Sylvius,³⁷ Elbel,³⁸ Concina,³⁹ Holzmann,⁴⁰ Ballerini-Palmieri,⁴¹ Noldin,⁴² and especially Bouquillon⁴³ affirm it. - All the arguments of the denying opinion are reduced to the following words of St. Thomas:⁴⁴ "Man can make law concerning those things concerning which he can judge; but the judgment of man cannot be concerning interior motions, which are hidden, but only concerning exterior acts, which appear. And yet for the perfection of virtue it is required that man exist rightly in both acts; and therefore human law could not sufficiently restrain and order interior acts, but it was necessary that divine law supervene for this." - But the affirming opinion is supported chiefly by these arguments: a) The Church can command all those things which are necessary for obtaining her proper end. But now the end of the Church (namely, the salvation of souls) is in itself spiritual and internal. Therefore the Church can command even merely spiritual and internal acts. b) The Church in fact commands some merely internal acts, for example, mental prayer for clerics, examination of conscience, spiritual exercises,⁴⁵ the application of Mass by pastors on certain days; a confessor can in the sacramental forum impose pious meditation as a salutary penance; the Church commands an act of contrition for gaining a plenary indulgence. But it is wicked to say that the Church commands something which exceeds her competence.

For practice this controversy is not of so great utility. For when the Church requires an internal act for some work, as happens in gaining indulgences or in the parochial office, then certainly that internal act must be placed; whence without doubt a pastor would sin mortally if he did not apply Mass for the people on the prescribed days. But whether this grave obligation arises by force of ecclesiastical law (as the patrons of the affirming opinion will) or by force of contract (which the defenders of the denying opinion prefer), namely, of the parochial office freely accepted, matters little. Indeed the obligation incumbent upon pastors of sometimes applying Mass for the people committed to them arises from divine right itself,⁴⁶ but that this application must be made on all Sundays and feast days is determined by ecclesiastical right.

Authors today rather commonly concede that merely internal acts can be commanded in the following cases:

a) In the internal forum by a confessor. Hence a confessor can impose meditation to be made, as has already been said above.

b) When the Church determines or explains divine right. Such determinations or explanations of divine right are: the application of Mass imposed on certain days; the worthy reception of annual confession and paschal communion. Wherefore thesis 14 of the Jansenist errors was proscribed by Alexander VII: "He who makes a voluntarily null confession satisfies the precept of the Church."⁴⁷ And thesis 55 was condemned by Innocent XI: "The precept of annual communion is satisfied by a sacrilegious eating of the Lord."⁴⁸

c) When religious superiors give legitimate precepts to subjects bound by force of the vow of obedience. Therefore a religious superior can command a professed subject, for example, to make meditation, to perform spiritual exercises,⁴⁹ etc., unless, however, obedience from the constitutions of some order does not seem to extend so far.

²⁷ S. theol. I-II, q. 91, a. 4; q. 100, a. 9; II-II, q. 104, a. 5. In this last place the Angelic Doctor says simply: "In those things which pertain to the interior motion of the will, man is not bound to obey man, but God alone."

²⁸ The words of the Roman Catechism somewhat favor the denying opinion (De nono et decimo praec. q. 4): "And in this divine and human laws differ, that the latter are content only with external things, but the former, since God looks upon the soul, require the pure and sincere chastity and integrity of the soul itself."

²⁹ Commentary on II-II, q. 11, a. 3.

³⁰ De leg. l. 4, c. 12. Suarez teaches that Christ indeed could have given to the Church the power of making laws concerning internal acts, but in fact did not give such power.

³¹ Commentary on the Decretals, de const., n. 21.

³² De leg. diss. 4, a. 1.

³³ De syn. dioec. l. 9, c. 4, n. 4.

³⁴ Synopsis Theol. mor., De leg. n. 288.

³⁵ Theol. mor. l. 1, n. 142.

^36a Theol. mor. I, 254.

³⁶ Theol. mor. l. 1, n. 100.

³⁷ Commentary on S. theol. I-II, q. 94, a. 4.

³⁸ Theol. mor., de leg. n. 332.

³⁹ De leg. hum. c. 2, n. 14.

⁴⁰ Theol. mor., de leg. n. 314.

⁴¹ Opus theol. I, de leg. n. 308.

⁴² De principiis n. 138.

⁴³ Theol. mor. fund. n. 114.

⁴⁴ S. theol. I-II, q. 91, a. 4.

⁴⁵ Cod. iur. can. cc. 125, 126, 1001.

⁴⁶ Council of Trent, sess. 23, c. 1, on reform.

⁴⁷ Denz. n. 1114.

⁴⁸ Ibid., n. 1205.

⁴⁹ Cod. iur. can. c. 595. Cf. our Man. iur. can. q. 231 (2).

184. Heroic acts ordinarily cannot be commanded by human law, because they are too difficult, indeed impossible for the greater part of the people. But a law commanding things ordinarily too difficult or even impossible is not a good and useful law, and therefore ceases. Nevertheless heroic acts can be commanded in two cases, namely: 1. if the common good strictly requires it; 2. if someone has freely obliged himself even to heroic acts. Thus a leader in war makes a law that soldiers must perform guard duty even with certain danger of life. Thus the Church commands that a pastor, even with grave danger of infection, administer the necessary sacraments to a dying leper. - If someone has freely obliged himself to heroic acts, it is plain of itself that a superior can impose them upon him. Thus, for example, sisters who have freely made profession in some religious congregation instituted for serving the sick can be compelled to serve the infirm, even though from this they fall into certain danger of life.

St. Thomas, I-II, q. 96, a. 1, 2, 3.

279. Principle. Law must be proportioned to the end, which is the common good (n. 272), and therefore the matter about which civil law is concerned is all acts whose placing or omission is useful to the common good, even those which are indifferent of themselves, insofar as they can be ordered to virtue and good or to vice and evil. But the common good consists of many things: 1) for society is constituted from many persons, 2) it is ordered to a good which consists in many affairs, to be procured through manifold actions, 3) it is instituted not so that it endure for some small time, but so that it persevere for all time through the succession of citizens. Therefore law must procure the good not of some but of many, not in some one thing or action but in many, not for some time but in a mode of itself perpetual.

280. Acts useful to the common good are only:

1. Acts morally possible, that is, not too difficult and burdensome, but accommodated to the powers of men (their frailty being attended to, not only in common but also according to special condition and circumstances); otherwise law would not be conformable to reason nor promote the public good, but would rather often be the occasion of sins, since it would be observed by few. Hence:

a) Heroic acts cannot be commanded, unless in extraordinary public necessity (for example, a law could command physicians in time of plague to remain in the city), or unless one has freely chosen a state to which they pertain.

b) Although law can prohibit any vices whatsoever, nevertheless not all simultaneously, or all vicious acts: for law must be imposed upon a multitude of men according to their condition in such a way that it is possible for them; but in a multitude the greater part is of the imperfect, and therefore not all vices are prohibited, but only the graver ones, from which it is possible for the greater part of the multitude to abstain, and chiefly those which harm others, such as homicide, thefts, etc., without whose prohibition society could not be preserved.

2. Acts external in some way: for by these alone does man bear himself well or badly toward others constituting the city, for society arises from external relations; whence external acts alone, and not merely internal acts, are directly necessary or useful to the end, which is peace, by which citizens can tranquilly use their rights, and public prosperity.

Nevertheless internal acts can be commanded indirectly and per accidens, insofar as they are joined with external acts and manifested by them, for example, if they are necessary that external acts be human, good, not feigned, etc.; for law cannot command except morally good acts.

3. Future acts, whence it is said: Law does not have eyes backward, and "La loi ne dispose que pour l'avenir; elle n'a pas d'effet rétroactif" (Civil Code, a. 2).

Thus a) according to directive force: for since law is a rule of things to be done, by its nature it regards future acts, not past acts, which cannot be ruled; namely, to command, prohibit, permit past acts, or, if they are irrevocable, invalidate them, would be useless. Likewise b) ordinarily also according to coercive force: because, namely, it is very odious, past acts regularly cannot be punished, nor acts still revocable be invalidated, unless they have already been prohibited by some law, or on account of a great necessity of the common good; for in this case whatever good of the part can be required for the good of the whole, but it will rather be the imposition of a burden than of a penalty. Hence the legislator cannot affect past acts except a) in a penal law which imposes a penalty on an act already prohibited (at least by natural right); b) in a law establishing not a penalty but an inability, if the reason of the common good demands it; c) in a merely declarative law of an earlier law.

281. The common good is manifold:

1. One thing civil society immediately intends, namely, its own and its members' temporal perfection and happiness, that is, to establish a good life in the multitude, to preserve it, and by promoting it to better things to perfect it. To this pertain both the goods of society itself: constitution, regime, administration, defense, and the relations of citizens to it and among themselves; and the goods of the members: a) goods of the intellect: instruction in letters, sciences, and human arts (which greatly contribute to private and public good); b) goods of the will: to coerce delicts, attack vices, and promote virtues, indeed all of them: for all virtues whatsoever, just as they can be referred to private good, so also to the common good, just as all vices can be opposed to it, and therefore there is no virtue concerning whose acts law cannot command. Yet it does not command concerning all acts of all virtues, but only concerning those which are orderable to the common good, either immediately, as those which are done directly on account of the common good, or mediately, as certain things are ordered by the legislator to good discipline, by which citizens are formed so that they may preserve the common good of justice and peace. Hence human law commands only acts of justice, and acts of the other virtues insofar as they assume the notion of justice; c) goods of the body: public health and due propagation; d) goods of fortune and those things which concern the acquisition, transmission, abundance of things, industries, agriculture, and commerce.

2. Another thing society intends only mediately, namely, eternal beatitude; and therefore, although it ought to procure temporal goods in such a way that they do not harm eternal goods, indeed so that they procure them, nevertheless it cannot bear law immediately concerning spiritual things; nor concerning mixed things except in concord with religious society.

282. Observation.

In all the aforesaid matters it can either inculcate natural and divine law, for example, by compelling parents to nourish minor children, and children to provide food for parents; or determine what that law leaves indeterminate, for example, by establishing conditions for succession in the goods of the dead or the mode of exercising justice; or impose what is more conformable to it, for example, prescription of goods, community or separation of goods in marriage, rescission of a contract begun by minors; or command or prohibit what that law permits, for example, concerning fishing, the manufacture of liquors, or hunting; or urge all these things by adding a penalty; or even impose conditions for the validity of acts established by it (for example, concerning contracts); nevertheless in no way can it contradict a superior law.

The object of law, generally, is whatever law can command or prohibit. Hence the object of law can be all and only those acts whose placing or omission favors the common good.

Concerning the object of law the Supreme Pontiff Leo XIII speaks thus: "Among human laws, some are concerned with that which is good or evil by nature, and command that the one be followed, the other fled from, with the due sanction added": decrees of this sort are by no means derived from human society, but rather precede human society itself and are entirely from the natural law. "Therefore the precepts of natural right, comprehended in the laws of men, have not only the force of human law, but chiefly embrace that much higher and much more august command which proceeds from the law of nature itself and from the eternal law."

"But other prescriptions of the civil power follow not immediately and proximately from natural right, but more remotely and obliquely, and they determine various matters concerning which provision has been made only generally and universally. Thus nature commands citizens to contribute their effort to public tranquility and prosperity; how much effort, in what manner, and in what matters is established not by nature but by the wisdom of men. Now human law properly so called is contained in these particular rules of living, discovered by prudent reason and proposed by legitimate power. This law indeed commands all citizens to work together toward the end proposed to the community, and prohibits them from turning aside; and the same law, insofar as it is attendant upon and consenting to the prescriptions of nature, leads to those things which are honorable and deters from the contrary." "The liberty of those who preside is not placed in this, that they may command rashly and according to desire, which would equally be shameful and joined also with the greatest destruction of the commonwealth; but this ought to be the force of human laws, that they be understood to flow from the eternal law and to sanction nothing which is not contained in it, as in the principle of all right." - Encyclical Letter Libertas.

Question 1. Can acts already placed be the object of law?

Response. Negatively, according to the common axiom: law does not look backward. The reason is that law does not extend itself to past acts by reason of guilt, which, in the absence of law, was none, nor by reason of penalty which follows guilt, nor by reason of rescission, except in some case expressed by law. Besides, that retroaction would induce great disturbance in society. - Cf. Scav. n. 218. The Constitution of the United States is consonant with this; for in art. I, sect. ix, n. 3, it is had: "No ex-post-facto law shall be passed"; and art. I, sect. x, n. 1: "No State shall pass any ex.post-facto law, or law impairing the obligation of contracts."

Laws regard future things, not past things, unless provision is made in them by name concerning past things (Can. 10).¹

C. 13. X, I. 2. Thus in fact, C. 4. I. 15 in VI extended the canon of the Church not only to future affairs, but also to past and still pending affairs.

¹ Cf. Addenda, p. 1093, n. 26.

Question 2. Do heroic acts fall under human law?

Response. Generally, and with prior acceptance excluded, they do not seem to fall under law, because they are judged morally to exceed human powers, and therefore a law of this sort could not be called possible. Nor should you say that this reason has equal force for divine law; for when God commands some heroic act, He at the same time gives and strengthens powers through grace. I have said, 1st, generally, because sometimes, when the common good requires it, heroic acts can be commanded by human law; thus, for example, soldiers on guard cannot desert their post even when danger of life is imminent. I have said, 2nd, with prior acceptance excluded, because a precept is not reputed morally impossible for the few who voluntarily receive it; thus, for example, the Church commands perpetual enclosure for Nuns.

77. Question 3. Can human law command merely internal acts?

Response. Civil law certainly cannot, both because it cannot judge concerning internal things, and because without these acts the proper end of that law can be obtained. But it is controverted whether ecclesiastical law can, and the sentence which denies it is more probable, at least extrinsically. - Cf. St. Thomas, 1-2, q. 100, art. 9. - St. Alphonsus, n. 100. - Suarez, de Leg. lib. 4, cap. 12.

The same must be said concerning internal acts which are joined accidentally with external acts, as would be, for example, true devotion in giving alms. But those internal acts which are joined with external acts necessarily, whether as form, for example, the consent of the will in contracts, or as cause, for example, the desire of harming in homicide, can indeed fall under human law, but only indirectly. - Cf. St. Alphonsus, ibid.

Question 4. Do acts indeed external but hidden fall under human law?

Response. Affirmatively, because hidden acts by their nature do not differ from others; and besides, they can be judged by sentence, as hidden heresy which does not escape censure. - Cf. St. Alphonsus, ibid.

Question 5. Can a confessor enjoin merely internal acts?

Response. Affirmatively, and the reason is both because the office of directing the penitent in the way of salvation demands this, and because the confessor represents Christ Himself and participates in His divine power. - Cf. Voit, n. 163. - Scav. n. 217, and the note to n. 209, Paris edition.