Obligation of Human Laws

The object of law is whatever the law can command or prohibit; and since law is the means by which public power procures the end of the community, the object of law can be whatever is necessary or useful for obtaining the end of the community. From this general principle it follows that for the validity of a law it is required that its object be marked by these four properties: it must be honorable, just, possible, and useful.

136. Honorable: for every legislative power is from God; but God cannot give the power of obliging to that which is dishonorable.

a. From this it follows that a law which commands a dishonorable thing is not to be obeyed; but in doubt whether that which is commanded by law is good, generally it must be presumed to be honorable and licit.

b. Nevertheless even actions indifferent in themselves can be the matter of law: for even indifferent actions can be useful or harmful to the good of the community. Actions of this kind, by the fact that they are the matter of law, are ordered to the good of subjects and, because of the motive from which they are commanded or prohibited, become the object of some virtue; for example, to abstain from meats on a certain day becomes an exercise of mortification, to stand while praying an exercise of religion.

137. Just; law is called just from a threefold head: a. by reason of the end, because it is referred to the common good; b. by reason of the matter, because burdens are imposed upon subjects while the proportion of equality is preserved between the burdens and their faculties; c. but chiefly by reason of the author, because it does not exceed the power of the legislator. But if that is commanded which in some way is repugnant to justice, the subject per se is not held to obey.

Just and unjust law are ordinarily taken in a broader sense, so that both that law which exceeds the competence of the legislator and that law which does not exceed competence but commands what is illicit are called unjust. Therefore unjust laws are of two kinds: some which exceed the competence of the legislator, although that which is commanded is licit; others which command that which is illicit. A subject is sometimes held per accidens to obey laws of the former kind, namely when disobedience brings greater evils either to a particular person or to the community, as if political power establishes impediments of marriage or imposes unjust taxes. It is not licit to obey laws of the second kind. Concerning these are the words of Sacred Scripture: "It is necessary to obey God rather than men,"¹ and "it is better to die than to be defiled."²

¹ Acts 5:29.

² 2 Macc. 7:2.

138. Whether human law can command merely internal acts:

a. Merely internal acts are called both internal acts which have no external act joined to them, and internal acts which per accidens are joined with an external or rather mixed act. For mixed acts are of two kinds: some in which the internal act, either per se and by its nature or certainly by moral law, is required for the external act to be duly performed, for example the intention of invoking God as witness in an oath, of sorrow in confession, of attention in prayer; others in which the internal act is joined with the mixed act only per accidens, which would be duly done even without it, as a determinate intention in reciting prayer. Internal acts joined per accidens with external acts are to be referred to merely internal acts.

b. Internal acts which pertain to mixed acts either essentially or morally, not only per accidens, can be commanded in two ways: directly, if the internal act itself is commanded in itself; and indirectly, if only the external act is commanded in itself and the internal act because of its conjunction with the external act, which by another law must be duly done.

1. It is certain that human law (even civil law) can command mixed acts, namely internal acts which are so joined with external acts that the external acts would not be duly done without them. And indeed the Church commands worthy Paschal communion and fruitful reception of penance, and civil power commands an oath.

These internal acts necessarily joined with external acts are commanded, according to some, even by ecclesiastical law, only indirectly; but according to others, not only by ecclesiastical law but also by civil law, directly.

2. It is certain that civil power cannot command merely internal acts: for these directly contribute nothing to the end of civil society, since this can be sufficiently obtained even without them.

3. They dispute whether the Church can command merely internal acts. The opinion of many authors indeed teaches that merely internal acts cannot be commanded by human law, but that internal acts necessarily joined with external acts are commanded only indirectly. Nevertheless the affirmative opinion is altogether to be preferred, namely that the ecclesiastical legislator can directly command not only mixed acts, but even merely internal acts.

a. St. Thomas, Suarez, St. Alphonsus, to whom the negative is more probable (n. 100), and most others with them hold the negative opinion; Cardenas, Elbel (n. 332), Holzmann (n. 314), Ballerini-Palmieri (n. 308), Bouquillon (n. 114), to whom some others join themselves, defend the affirmative. Practically this question is not of great moment, because it rarely happens that it is expedient to command merely internal acts; but the Church, with all conceding, can command mixed acts at least indirectly. But if an ecclesiastical superior commands merely internal acts, even if his power is said to be doubtful, nevertheless one must presume for the validity of the precept and obey it. Hence if spiritual exercises are enjoined, the one upon whom they are enjoined cannot excuse himself from performing them integrally under the pretext that the superior cannot command merely internal acts.

b. Those who deny argue in this way: that cannot be commanded or prohibited by human law whose execution cannot be urged by human means and whose omission cannot be punished; for such a law would be imposed in vain. Besides this, the Church is a visible community; but the matter of laws by which a visible community is governed is only external and sensible acts. Finally, the Church never commands merely internal acts; but what the Church never does, she is judged unable to do. But those who affirm say thus: a. the Church can command whatever conduces to her end; but although the Church is a visible society, she is nevertheless also a spiritual society intending a supernatural end, to which merely internal acts are well consonant. b. Legislative power was granted to blessed Peter without limitation ("whatever you shall bind"); therefore it is not to be restricted to external acts unless this is proved by manifest arguments. c. The first argument of the prior opinion proves too much: for from it would follow that neither mixed acts nor hidden external acts can be the matter of ecclesiastical law. Besides this, merely directive power and power both directive and coercive at the same time must be distinguished. But it is not necessary that the Church command merely internal acts by power directive and coercive (external) at the same time; it suffices that she command them by directive power, even if she cannot punish their transgression. For the rest, she can punish even merely internal acts, namely by a penalty to be incurred by the very fact. Finally, d. the Church not only exercises power concerning merely internal acts, as is clear from those things which are said soon (under c.), but in fact commands merely internal acts. For example, priests celebrating Mass are commanded, after the reception of the body of Christ, to rest somewhat in meditation on the most holy sacrament, and this meditation certainly is a merely internal act; and the supreme pontiff under penalty of suspension commands that clerics to be ordained at Rome perform spiritual exercises, which are composed of mixed acts and merely internal acts (meditations, examinations).¹ The same power of prescribing spiritual exercises to the clergy of his diocese belongs also to the bishop.²

c. In the following cases all concede this power:

a. A confessor in the sacramental forum can impose merely internal acts, for example pious meditation.

b. The Church can interpret natural and divine law, which is concerned with merely internal acts; thus she can determine how often an act of faith or charity is to be elicited; how often the sacrifice of the Mass is to be applied for the people by pastors of souls.

c. She can prescribe merely internal acts as a condition for obtaining a grace; thus she prescribes meditation on the mysteries of the life and passion of the Lord for gaining the indulgence of the Way of the Cross.

d. Regular superiors can enjoin internal acts upon their subjects by reason of the vow of obedience, by which they have subjected themselves to superiors also in relation to these acts, for example mental prayer, examination of conscience.

¹ Constitution Apostolicae Sedis, V, 7.

² S.C.C., September 20, 1878. Cf. Acta Sanctae Sedis XII, p. 609 ff.

139. Possible, not only physically, but also morally: for no one is held to the impossible. Certainly, law must redound to the common good; but it would not redound to the common good if it were not morally possible. For a law which exceeds the ordinary powers of subjects is not observed by the greater part of the community; but a law which is not observed by most redounds rather to the detriment of the community. Therefore by common consent the principle is admitted: an affirmative law does not oblige with a proportionately grave inconvenience which per accidens is joined with the observance of the law.

a. That is called morally impossible which can be done only with great difficulty, namely one which in the judgment of prudent persons surpasses human powers. But since precepts, both divine and human, are of diverse necessity and gravity, the same difficulty does not excuse from observing a precept in all cases; rather, the graver the precept is, the greater must be the inconvenience to be undergone in its observance in order that one be excused from the precept.

b. The shame to be undergone in confessing one's own sin and one's own defamation to be incurred before the confessor from the accusation of sin are per se and intrinsically joined with confession of sin; therefore they do not excuse from confession. But defamation to be incurred before others because of the confession of sins is joined with confession per accidens and extrinsically; therefore it can excuse from confession.

140. Whether law can command heroic acts, namely acts which are of extraordinary difficulty.

a. Positive divine law can command heroic acts: for on the one hand God is the absolute lord of men, and on the other He can increase the powers of men, by which the observance even of a most difficult law becomes morally possible. Nevertheless, since it is not to be presumed that God wills to oblige Himself to performing miracles in the moral order, positive divine law is not judged to command heroic acts; therefore in a case of great difficulty the law is rather said to cease.

b. Human law per se cannot command heroic acts, unless either the common good demands this, or acts of this kind are enjoined upon a determinate group, because it would command what is morally impossible and therefore would furnish occasion for innumerable transgressions.

Nevertheless sometimes even human law can command very difficult acts. a. If the law is imposed upon a determinate group of men, which each one freely enters; thus nuns are obliged to perpetual enclosure, priests to perfect chastity, some religious to the service of the sick who are infected with plague. b. If the common good demands this: for the common good prevails over private good; thus soldiers are commanded, even with danger of life, to attack the enemy and not desert their station, and pastors in time of contagious disease are commanded to remain in the parish. There are, however, those who say that in this case natural law rather than positive law commands the difficult act, namely the law that the common good is to be preferred to private good.

141. Useful to the community, which must be understood in such a way that not only the matter of the law, but also the mode in which the law is commanded (whether merely penal or preceptive, prohibiting or also invalidating, obliging under grave or under light obligation), must be useful to the community: for the power of making laws has been granted for the common good.

Hence a law which was not useful to the community or which redounded only to the utility of the prince or of a few would not be a valid law, since it regards only a private good. And therefore a law loses the force of obliging when it begins to become useless or harmful to the community.

Whether law extends itself to past acts.

This must be denied: for since law is the rule of things to be done, by its nature it regards future acts. Therefore the axiom arose: law does not look backward. Nevertheless, if a new law contained a (comprehensive) declaration of a prior law, it without doubt would affect all acts placed from the time when the prior law was issued.

Obligation of Human Laws.—All human laws that are just, whether they be ecclesiastical or civil, made by believers in God or unbelievers, are obligatory in conscience, (a) From the beginning the Church has made laws and imposed them as obligatory (Acts, xv. 29; I Cor., vi. 4; I Cor., xi. 5; I Tim., v. 9-12), and has recognized as obligatory the laws of the State, without regard to the moral or religious qualifications of the rulers (I Peter, ii. 13-16; Rom., xiii. 1-7).

(b) Human laws are necessary. The Natural Law does not prescribe definite penalties, while the Positive Divine Law prescribes only such as are remote and invisible; and hence, if there were no human laws holding out the threat of determined and present punishments, the Divine laws would be contemned. Moreover, since the higher laws are sometimes unknown, or prescribe no time, place or manner of accomplishment, or do not command things that would be useful for their observance, it is necessary that there be laws made by man to secure the better knowledge and fulfillment of the laws given by God Himself.

A human law is unjust in two ways:

(a) if opposed to the rights of God. Examples: The command of Pharaoh that the Hebrew male children be murdered (Exod., i. 17), the command of Antiochus that his subjects sacrifice to idols (I Mach., ii. 16-20), the command of the Sanhedrin that the Apostles should cease to preach (Acts, v. 29);

(b) if opposed to the rights of man. This happens in three ways: First, when the purpose of the law is not the common good, as when the lawgiver seeks only his own profit or glory; secondly, when the maker of the law has not the requisite authority; thirdly, when the law itself, although for the common good and made by competent authority, does not distribute burdens equally or reasonably among the people. Examples: Achab and Jezabel, in the affair of the vineyard of Naboth, had in view not the public, but their own private benefit (III Kings, xvi). The sentence of death pronounced on our Lord by the Sanhedrin was illegal, because, among other reasons, the body was not assembled according to law, and hence had no authority to give sentence. The commands given the Israelites by Pharaoh (Exod., v. 18), and to their subjects by Oriental despots (I Kings, viii), were unjust, because the former discriminated against the Israelites, and the latter bore down too heavily on all the people. The former civil laws that prescribed the same penalty of hanging for a slight misdemeanor (such as the theft of a loaf of bread by a boy) as for the capital crimes of piracy or murder, the Stamp Act of George III, and some modern laws that sentence to life imprisonment those who have been four times convicted of slight offenses, are more recent examples of unjust laws.

Obedience to unjust laws is not obligatory in the following cases. (a) If a law is opposed to the rights of God, it is not lawful to do what that law commands or permits, nor to omit what it forbids. Examples: If a law permits one to practise polygamy, or commands one to blaspheme religion, one may not use the permission or obey. If a law forbids one to give or receive Baptism, it has no force. (b) If a law is certainly opposed to the rights of man in any of the three ways mentioned in the previous paragraph (376, b), it does not of itself oblige in conscience, since it lacks some essential condition of a true law, and even the consent of the majority or of all does not make it just. However, it may oblige accidentally, on account of the greater evils that would follow on disobedience, such as scandal, civil disturbances, etc. The duty of subjects is to remonstrate against such a law and to work for its repeal.

The obligation of all laws is not the same in kind, or degree. (a) Moral laws oblige one to do what is commanded or to omit what is forbidden, as a duty owed in conscience; hence, he who violates a law of this kind is guilty of moral fault. Penal laws oblige one to follow what they prescribe, if one would be free from guilt before the law and not liable in conscience to the penalty prescribed; hence, he who violates a penal law is guilty of juridical fault, and, if he further illegally resists the penalty, he becomes guilty also of moral fault. (b) Moral laws are not all of the same obligatory force, some of them obliging under grave sin, others under venial sin.

The following human laws are recognized as moral laws: (a) ecclesiastical laws, with few exceptions; (b) civil laws that confirm the Eternal or Divine Law, or that pertain directly to the common welfare, such as the laws that determine the duties of public officials, the rights of inheritance, etc.

The following human laws are generally regarded as merely penal: (a) ecclesiastical laws which expressly state that their observance is not required under pain of sin (e.g., the statutes of many Religious Orders); (b) civil laws of minor importance, or which the legislator imposes as a purely civil duty (e.g., some traffic regulations).

Moral laws oblige under grave sin if the two following conditions are present: (a) if the thing prescribed by the law is of great importance, because of its nature or circumstances; (b) if the lawgiver intended to impose a grave obligation.

A matter of light moment cannot be made the object of a law that binds under grave sin, for this would impose an intolerable burden, and would thus be contrary to the common good. What is unimportant in itself, however, may become important on account of its purpose or other circumstance.

The intention of the legislator to impose a grave moral obligation is recognized either: (a) from his own declaration, as when a church law is commanded under threat of the divine judgment; or (b) from circumstances that indicate such an intention, such as the gravity of the subject-matter of the law or the kind of penalty it prescribes, the general opinion of authorities, or the common practice of the community.

By obliging to the observance of what they command and the avoidance of what they forbid, laws indirectly oblige to what is necessary for such obedience. (a) Hence, the law obliges one to make use of the ordinary means for its fulfillment. Examples: He who has not used ordinary diligence to know the law, sins against the law if he violates its prescriptions. He who eats meat on a day of abstinence, because he neglected to provide himself with other food, is guilty of sin. (b) The law obliges one to use sufficient diligence in removing impediments to its fulfillment or dangers of its violation. Examples: The law of hearing Mass on Sunday obliges one not to stay up so late on Saturday that fulfillment will be impossible. The law of fasting obliges one to avoid dangerous occasions of its violation.

"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. KINDS OF OBLIGATION. —Every human law, ecclesiastical or civil, which has the properties described in the preceding section of this treatise, binds not only externally, under pain of punishment, but also internally, i. e., in the court of conscience. This proposition is evident from the very nature of things, for the provisions of a just law are simply the will of God applied to some special condition.¹ St. Paul says: "Let every soul be subject to higher powers: for there is no power but from God, and those that are, are ordained of God. Therefore he that resisteth the power, resisteth the ordinance of God.... Wherefore be subject of necessity, not only for wrath, but also for conscience' sake. For therefore also ² you pay tribute. For they are the ministers of God, serving unto this purpose. Render therefore to all men their dues: tribute, to whom tribute is due, custom, to whom custom; fear, to whom fear; honor, to whom honor.”³

¹ Cfr. St. Thomas, Summa Theol., 1a 2ae, qu. 95, art. 2; qu. 96, art. 4.

² διὰ τοῦτο γὰρ καί. (Rom. XIII, 6).

³ Rom. XIII, 1-7.

And St. Peter: "Be ye subject therefore to every human creature for God's sake: whether it be to the king as excelling, or to the governors as sent by him for the punishment of evildoers, and for the praise of the good: for so is the will of God, that by doing good you may put to silence the ignorance of foolish men: as free, and not as making liberty a cloak for malice, but as the servants of God." ⁴ "SS. Peter and Paul insisted that men owe obedience to civil authority for conscience' sake and by virtue of a divine command. This doctrine at that time was utterly new in the world.... According to Apostolic teaching, the ruling power of the State, or public authority, no matter what its form or composition, is ordained for the purpose of administering the divine law on earth. Hence every Christian is in duty bound to recognize those constituted in authority, without regard to their moral or religious qualifications, and to obey them for conscience' sake, not merely for fear of punishment. All power, civil as well as paternal, is from God. Obedience to authority is a necessary duty deeply ingrained in the soul of every man." ⁵ The teaching of Tradition is in perfect harmony with that of Scripture. Thus we read in the Epistle to Diognetus: "Christians differ from other men neither in country nor language nor customs.... They share all things as citizens.... They obey the appointed laws, and go beyond the laws in their own lives."⁶ Tertullian writes: "We venerate in the emperors the decisions of God, for God has placed them over the nations."⁷ St. Augustine says that the Christian soldiers of Rome "distinguished between their eternal and their temporal lord, and obeyed the latter for the sake of the former."⁸

⁴ 1 Pet. II, 13-16.

⁵ Döllinger, Christentum und Kirche, Ratisbon 1868, pp. 14 sq.

⁶ Epist. ad Diognet., c. 5 (Lake, The Apostolic Fathers, Vol. II, London 1913, pp. 359 sq.).

⁷ Apol., c. 32.

⁸ Enarrat. in Ps., 124, n. 7. —Many other Patristic passages of similar tenor will be found collected in F. Hamm, Zur Grundlegung und Geschichte der Steuermoral, Treves 1908, pp. 138 sqq.

Hence there can be no doubt that every just law obliges in conscience, i. e., under pain of sin (sub culpa morali s. theologica). However, not all laws bind always and in every case. An affirmative law binds "always" but not "for always" (semper, sed non pro semper, i. e., at every moment, in all circumstances), whereas a negative law binds "always" and "for always" (semper et pro semper). Thus a person is not bound to profess his faith under all circumstances, but he is never allowed to deny it.

The rule, "Lex positiva obligat semper, sed non pro semper" has one exception: the law of charity, which binds always and for all time because the obligation of loving and serving God is the foundation of all other precepts, negative as well as positive.⁹

⁹ Cfr. J. Ernst, Ueber die Notwendigkeit der guten Meinung, Freiburg 1905, p. 201.

Unjust laws do not bind in conscience because they "are acts of violence rather than laws," as St. Thomas says.¹⁰ In regard to the above the following principles should be borne in mind: a) No one is obliged to obey a precept which it is morally impossible for him to fulfill (ultra posse nemo tenetur). However, when the whole of an obligation cannot be fulfilled, and the matter is susceptible of division, we are not excused from fulfilling a part. Innocent XI condemned the proposition that a priest who is unable to say the whole of his daily office is therefore excused from saying any portion of it.¹¹ b) A law which runs counter to the moral law of nature not only does not oblige in conscience,¹² but must be resisted passively.¹³

¹⁰ Summa Theol., 1a 2ae, qu. 96, art. 4. —Cfr. St. Augustine, De Lib. Arbitr., I, c. 5, n. 11: "That which has not been just does not seem to me to be a law." (Migne, P. L., XXXII, 1227). —Cfr. also the Syllabus of Pius IX, prop. 56 and 57 (Denzinger-Bannwart, n. 1756 sq.). V. supra, Sect. 3, note 3.

¹¹ Cfr. the 54th of the propositions condemned by Innocent XI: “He who cannot recite Matins and Lauds, but can recite the remaining Hours, is bound to nothing, because the greater part draws the lesser to itself." (Denzinger-Bannwart, n. 1204).

¹² Cfr. Acts IV, 18-19; V, 29. — St. Augustine, Epist., 105, c. 2, n. 7: "If emperors were in error—which God forbid—they would enact laws in accord with their error against the truth, through which the just would both be proved and crowned by not doing what those emperors commanded, because God forbade it. Thus Nebuchadnezzar had commanded that a golden statue be adored; those who refused to do this pleased God, who forbade such things." (Migne, P. L., XXXIII, 398). —St. Thomas, Summa Theol., 1a 2ae, qu. 96, art. 4: "Laws can be unjust through opposition to the divine good, as are the laws of tyrants inducing men to idolatry or to anything else contrary to the divine law; and such laws may in no way be observed, because, as is said in Acts V, 29: We ought to obey God rather than men.”

¹³ Cfr. Ph. Hergenröther, Der Gehorsam gegen die weltliche Obrigkeit, Freiburg 1877.

Authority, be it civil or ecclesiastical, can never oblige a man to commit even a venial sin, for we must obey God more than men. Such has always been and always will be the teaching of the Church. Wiclif and Hus held that no one is obliged to obey a superior if the latter is in the state of mortal sin. The Church teaches that one must not obey a sinful command.¹⁴ When a command is clearly contrary to the law of God, obedience would be sinful.¹⁵

¹⁴ Cfr. Prop. Damnat. Wiclif., n. 15; Huss., n. 30 (Denzinger-Bannwart, n. 595, 656).

¹⁵ Cfr. St. Thomas, Summa Theol, 2a 2ae, qu. 104, art. 5, where the question, Utrum subditi teneantur suis superioribus in omnibus obedire, is treated exhaustively.

The oft-quoted dictum of Gregory VII, "Sententia pastoris, sive iusta sive iniusta fuerit, timenda est," means not that an unjust command must be obeyed, but that it should not be transgressed lightly and in a spirit of contempt. The phrase "ad peccatum obligare," which is found in the constitutions of some religious orders, signifies an obligation which binds under pain of sin (sub peccato), not a command to sin.¹⁶

¹⁶ Cfr. Bishop von Ketteler, Kann ein Jesuit von einem Obern zu einer Sünde verpflichtet werden? Mayence 1874, pp. 10 sqq.; B. Duhr, S.J., Jesuitenfabeln, 4th ed., pp. 515 sqq.

"Active resistance to authority," says a non-Catholic writer, "is not unreservedly condemned by Christian ethics. Those who maintain that it is, are inspired by absolutistic notions. When persons in authority are faithless and violate the constitution, even a Christian subject is justified in resisting them." ¹⁷ c) An indubitably unjust law does not bind. If, however, a law is just in its object (lex honesta), and unjust only in its origin or purpose, it may be obeyed, provided obedience does not involve the violation of some other moral duty. Obedience may even be a strict duty, namely, when some higher moral good would be jeopardized by disobedience, as in the case of public scandal or revolt, provided always that no just law is violated. In the words of the Angelic Doctor, "[unjust] laws are not binding in the court of conscience, except perhaps to avoid scandal or turmoil, for which cause a man ought to abate something of his right...." ¹⁸ Laws which imperil higher rights or interests may be resisted by all legal means, such as remonstrances, appeals, petitions, agitation in the public press. To employ illegal means is tantamount to sedition. No matter what the provocation, revolution against a legitimate government is forbidden, because revolution by its very concept is an attack upon actually existing and divinely sanctioned rights. Pius IX solemnly condemned the proposition that "It is permitted to withhold obedience from legitimate rulers, nay even to rebel against them."¹⁹

¹⁷ Theologische Literaturseitung, Leipsic 1902, p. 617.

¹⁸ Summa Theol., 1a 2ae, qu. 96, art. 4: "Laws are called just from their end, namely when they are ordered to the common good; from their author, namely when the enacted law does not exceed the power of the one enacting it; and from their form, namely when burdens are imposed upon subjects according to proportional equality in order to the common good. ... Hence such [unjust] laws do not bind in the court of conscience, except perhaps for avoiding scandal or disturbance, for which reason a man ought even to yield his own right, according to Matthew V, 40-41."

¹⁹ Syllabus Errorum, n. 63: "It is permitted to withhold obedience from legitimate rulers, and even to rebel against them. (Denzinger-Bannwart, n. 1763). Cfr. Fr. Heiner, Der Syllabus, Mayence 1905, pp. 283 sqq. —Cfr. Rom. XIII, 2; Sophocles, Antigone, 672 sqq.

So far as obligation is concerned, laws may be divided into moral, penal, and mixed.

(1) A moral law (lex moralis) binds in conscience and under pain of sin (ad culpam).

(2) A purely penal law (lex mere sive pure poenalis) binds only under pain of suffering the penalty imposed for its infraction.

(3) If a law binds under pain of sin, and, in addition, imposes a penalty, it is called mixed (lex mixta).

The Schoolmen teach that if one transgresses a purely penal law, he is bound in conscience to pay the penalty imposed, but incurs no moral guilt (culpa theologica) and therefore commits no sin. His transgression is merely a technical violation of the law (culpa iuridica).

As examples of purely penal laws Catholic moralists are wont to cite (1) the statutes of certain associations, institutes or seminaries, especially the constitutions of religious orders which distinguish between the rules of ordinary and those of stricter observance,²⁰ and (2) such civil ordinances as regard taxes, permits, licenses, etc. Some writers include in the category of leges mere poenales police regulations, nay all laws made by "infidel or unchristian" States.²¹ Scholastic theology as a system merely teaches the possibility of purely penal laws; whether such laws actually exist is a question in dispute.²² When it is certain that the civil authorities do not intend to bind their subjects in conscience, a law may be considered penal only.

²⁰ Cfr. St. Thomas, Summa Theol., 2a 2ae, qu. 186, art. 1-2.

²¹ Cfr. K. Wagner, Die sittlichen Grundsätze bezüglich der Steuerpflicht, Ratisbon 1906, pp. 50 sqq.; A. Müller, Die staatlichen Gesetze in ihrer Beziehung zur sittlichen Weltordnung, Treves 1906, pp. 11 sqq.

²² Cfr. Ballerini-Palmieri, Opus Theol. Mor., tr. 3 de Leg., n. 107: "This is the very celebrated question: whether merely penal laws are given." —A. Vermeersch, S.J., Quaestiones de Iustitia, 2nd ed., Bruges 1904, p. 134: "In truth, more recent authors have gone off into various and diverse opinions; in this variety of opinions it is permissible to suspect the influence of climate or region."—W. McDonald, The Principles of Moral Science, pp. 98 sqq. —Thomas a Kempis says of the rules of religious orders: "Every religious discipline holds out two goods: that the statutes be diligently observed and that the negligent be corrected for their faults." (De Disciplina Claustralium, c. 1; Op. Omnia, ed. Pohl, Vol. II, p. 269).

2. DEGREES OF OBLIGATION. —Unlike divine laws, human laws never bind absolutely. The obligation they impose depends in each case primarily on the will of the lawgiver and secondarily on the matter involved. a) When the matter is light and trivial (materia levis), i. e., when the precept is of no importance for the common good, either in itself or by reason of attendant circumstances, the obligation is slight. When, on the other hand, the matter is grave (materia gravis), i. e., when the law or its object is in itself important or rendered so by circumstances, the resulting obligation is serious. b) The intention of the lawgiver may either be gathered from the purpose of the law or inferred from the wording chosen or the penalty imposed. c) A human law ordinarily does not bind cum gravi incommodo, and hence may be disregarded if its observance involves any serious inconvenience, such as danger to life and limb, loss of honor, health or fortune, etc. The reasons for this exemption are: (i) A law, to be binding, must be physically and morally capable of fulfilment; (2) No human legislator has power over the life, health, or property of his subjects, unless higher interests are at stake.

In matter of fact, even positive divine laws do not bind where life is in danger,²³ and the Church does not enforce even such important precepts as the sanctification of the Lord's Day, fasting, or the recitation of the Breviary as obligatory on those who cannot observe them without grave inconvenience.

²³ Cfr. 1 Kings XXI, 6; Matth. XII, 1-5.

There are, however, circumstances in which human laws bind even at the risk of life or death, e. g., (1) When the common good or the eternal salvation of one's fellowmen are involved, as often happens in the case of priests and soldiers; (2) When disobedience involves formal contempt of authority or the danger of grave scandal.

In all such cases a law binds even at the risk of life or health, for the reason that the common good (bonum commune) is superior to that of the individual.

That all men are bound under pain of grievous sin to obey the "higher powers," appears from the passage we have quoted ²⁴ from St. Paul's Epistle to the Romans. This is not, however, tantamount to saying that all human laws bind sub gravi. The question whether a human lawgiver can impose a serious obligation when the matter at issue is slight (materia levis), is answered negatively by most theologians. The reasons given are two: (1) Even the divine law binds but slightly in matters of no importance, and a human lawgiver cannot impose a heavier obligation than God, from whom his jurisdiction is derived; (2) To impose a serious obligation in matters of small importance would be contrary to the common good, give cause for scandal, and work mischief.

²⁴ Rom. XIII, 1-6 (supra, p. 163).

Note, however, that a matter small in itself may become important by virtue of its purpose or outward circumstances, and thus involve a serious obligation. This was the case with the command God gave to our first parents in Paradise.²⁵ Though the matter involved was slight, the law itself possessed great importance on account of the purpose for which it had been given and the severe punishment threatened.

²⁵ Gen. II, 16 sq.

READINGS.—Th. Slater, S.J., A Manual of Moral Theology, Vol. I, pp. 97 sqq. —IDEM in the Cath. Encyclopedia, Vol. XI, pp. 189 sqq. —A. Sweens, Theologia Moralis Fundamentalis, 2nd ed., pp. 177 sqq. —A. Vermeersch, S.J., Theol. Mor., Vol. I. Bruges 1922, pp. 210 sqq.

Order of speaking. - First we shall treat a few common points of manifest utility: obligation and the secondary forms of laws; then we shall treat of ecclesiastical law and then of civil law.

— The true causality of human law. Besides those things which natural law has either itself determined, or at least sanctions after they have been constituted by the voluntary assent of men, there are many other things which can in various ways be ordered to the common good, or which at least, if they are commended by manifest utility, because of the opposed utilities of private persons, will of themselves obtain no consensus except the one which human power has commanded. Therefore the Author and wise provider of nature has conferred upon public authority or the human Legislator the power of defining and urging these things. He, therefore, does not merely give place to some conditioned natural right, but by his will becomes the true cause, and indeed the principal cause, of the law whose scope, severity, and firmness are subject to his will. Yet the very force of efficaciously commanding or obliging in the Prince is present from divine Law, whether positive, when it is a question of the Church, or natural, when it is a question of civil Society. The communication of power through positive divine law was made by the words by which Christ, after recalling that all power had been given to Him, sent His apostles as the Father had sent Him, with the power of binding and loosing. But the communication through the law of nature is demonstrated in the divine will which, willing human society, does not allow the same to be destitute of necessary means.

Therefore, by authority communicated through divine law, human law is the truly principal cause of moral obligation.

— Connatural efficacy of law. He who establishes law or precepts on account of the common good does not urge a particular debt to himself, but efficaciously wills those things which are required by the common good. But the common good, since it coalesces from many elements, requires acts of many virtues, indeed of all virtues, those, for example, by which rights are observed and due services are rendered to parents and Superiors. Therefore, that his governance may be efficacious, the legislator can make those acts necessary according to themselves, or, if they were already due, confirm their necessity by a new title. He effects this when he establishes law, or when he commands from jurisdiction. And so a thing prescribed from jurisdiction takes on the necessity of the virtues to which it belongs, so that violation of the law is opposed to these various virtues. Cf. for example Cajetan, on 2, 2, q. 88 art. 5, where he excellently shows what difference there is between an obligation from law and one which is contracted from a vow.

Because the legislator can command below, yet not beyond, the capacity of the matter, two things must be weighed by us: what matter is capable of grave obligation; what is prudently thought to be the mind of the legislator.

— 1. Matter capable of grave obligation. The observance of positive law, as such, does not denote that immediate relation to the end of man which we detect in the observance of natural law.

Obligation comes because of an end distinct from that which is at once natural and essential; and therefore it draws its necessity not from the essence of the subject to which the law is prescribed, but from that end. Here, however, divine law must carefully be distinguished from human law.

For when it is a question of positive divine law by which we are raised to the supernatural order, the end of the law is man's very higher ultimate end, by which the merely natural end is, as it were, absorbed. Wherefore, when it is imputable, contrariety voluntarily opposed to the order of that higher end has greater gravity than contrariety which would have been repugnant to the merely natural order: for it contains aversion from a more excellent good, contempt of a greater benefit.

But the end of human law is always secondary. It denotes the complement of the primary order by which man is directed through divine law to his ultimate end. Moreover, that end can be discerned and estimated by human reason.

The same thing can be proposed in this other way. Because every other obligation is rooted and founded in the power of natural law, human law obliges conscience insofar as its observance or violation touches the essential order constituted by natural law. Thus, in the private relation between father and son, the violation of a paternal precept will be grave insofar as the father is at once gravely and reasonably unwilling that his precept be violated, and thus the order of piety toward him is truly disturbed. And in the public relation between legislator and subject, violation of law or precept will be thought grave insofar as it is notably opposed to the common good which is intended by the law, or insofar as the community, which acts through the legislator and whose good is intended, must be judged gravely and reasonably unwilling.

To form a prudent judgment concerning the gravity of the matter, two things, as we have already insinuated, must be considered: the object of the law or precept ¹, and the proportion of the prescribed means in order to that object. From the end and the intermediate precept, says Suarez, "having been viewed by prudent judgment, the gravity of the matter is to be gathered" (Suarez, Leg., l. 3, c. 25, n. 7; cf. Lehmkuhl, I, 240).

Concerning that prudent judgment, these things must further be noted. a) Considered separately from the end, the matter can be very slight, while, conjoined with the end, it is shown to be grave. Thus, under grave obligation, a very small amount of water is to be mixed with the wine by the sacrificing Priest, because that smallest quantity is necessary and suffices for the symbolic representation of the Incarnation in the rites of the Mass. b) Because of the diversity of the end, the same thing can be grave when it is prescribed by the Church, light when by civil power (Lehmkuhl, I, 240), or even imposed from the dominative power of parents. Thus, the omission of one Mass is grave if it is opposed to the precept of the Church, but not if it contradicts civil law or the command of parents. c) There are many acts which, considered separately, are not gravely harmful to the common good; but they would become such if they were done by many. It gravely concerns the commonwealth that that danger be averted. Wherefore the human legislator can forbid these things to individuals under grave obligation. Thus, that one citizen withdraw himself from military service or not pay taxes has of itself slight importance. That many withdraw themselves would gravely harm. These things, therefore, can be forbidden under grave obligation.

Presumption favors the legislator if he urges the precept under grave obligation (Suarez, Leg., l. 3, c. 25, n. 4).

¹ Object must be taken broadly, insofar as, besides matter, it comprises circumstances and especially the end of the law, especially the proximate or intrinsic end, through which the virtue to which the prescribed thing pertains is shown. Cf. what was said concerning moral specification.

— The mind of the legislator concerning obligation. That we may prudently solve the other question, namely when the legislator is judged to command according to the capacity of the matter, when to diminish the obligation or even to establish a merely penal law, ecclesiastical law must be wholly separated from civil law. It is already understood of itself that in a society which exists on account of a spiritual good and often cannot use external coercion, moral laws ought to be far more numerous than in a temporal society, which is accustomed to be physically armed. To this today is added the practical atheism of many public administrations. Wherefore:

1. Concerning ecclesiastical law these things must be held:

a) Unless there is a contrary sign, an ecclesiastical law prescribing or forbidding imposes an obligation of conscience, and one congruent with the matter;

A clause attenuating the obligation or even reducing the law to a penal one is customarily appended to modern constitutions of religious. The received opinion also of approved authors has attenuated the force of many rubrics, for example those which are to be observed outside Mass;

b) Signs of declared grave obligation are: alpha) Words which have great force: "we command, we interdict, in virtue of holy obedience, or by force of vow or oath, or we gravely mandate" ¹. The word "I command" is also adapted to light matter. beta) The persuasion of experts and the usage of the timorous, who estimate the matter in this way. gamma) Now, when it is a question of a universal law of the Church, the threat of a penalty either latae or even ferendae sententiae. For from c. 2218 § 2, we gather that the threat of a penalty is not made in the Code unless the Legislator has the matter of itself as grave and has willed to impose it as grave. For that canon declares immune from any penalty one who in the external forum has shaken off grave imputability from himself. Therefore, under this respect, the various divisions of penalties which were proposed before the Code can now be omitted.

2. Concerning civil law, controversies being omitted, these things seem able to be said prudently. The power of binding conscience is in no way lacking even to an ethnic or little-pious legislator. But more easily, because of the faculty of coercion, he can be content with an imposed penalty. And modern legislators, especially Parliaments, are accustomed to be little solicitous about guilt before God. Moreover, many subjects, even from among those who are reputed civilly honorable, utterly put aside this obligation of conscience; but it seems little consonant with equity that some should be pressed by a stronger burden of law than others. Again, however, the common good itself demands that certain laws be efficacious in conscience. Such are laws which more define the rights of private persons, for example the regulation of inheritance and the modes of acquiring goods; or which, in a matter where the legislator is competent, utterly extinguish certain obligations. Does not the common good require that the sentence of a judge be able of itself to be observed in conscience; that the same person of himself be owner before God and before law; that a "dualism" by which one answers otherwise in conscience and otherwise in the external forum be avoided in patrimonial questions? Moreover, law at the same time indicates what it is expedient or necessary to do for the common good. Wherefore circumstances can impose a moral necessity of doing what the law, even if of itself penal, has prescribed. Nor can an added penalty remove guilt which can be in an action from the object, from circumstances, from the end, and from the manner. Homicide remains morally evil, although it is punished by a most grave civil penalty: no one will doubt this. And attention must also be given to the declaration which can be contained even in civil law. Let us suppose that an edict is promulgated by public power by which certain acts of treason are noted and therefore punished with a most grave penalty. Can those acts, with attention to the most grave penalty of the external forum, be done without guilt of conscience? By no means. For besides the penal sanction, an edict of this sort contains an authentic declaration concerning the quality of certain acts. And treason itself is forbidden by the law of nature.

These things having been set down, these brief conclusions concerning the obligation of civil law can be proposed:

a) Today, according to a probable opinion, only those civil laws immediately oblige conscience which, because of the necessity of the common good, must have such force. This more often happens in laws which decree concerning rights than in those which directly prescribe or forbid something under penalty;

b) Nevertheless a law must be held as moral and not merely penal which by common estimation or by the judgment of several learned men is thought immediately to bind conscience. Cf. Lehmkuhl, I, 312. For custom is the best interpreter of laws; nor can it be denied that, after the immense war which will keep the name of "the great war," souls, from the perceived necessity of the common matter, incline more toward urging the obligation of conscience;

c) The gravity of an added penalty, especially of a fine, can sometimes, but not always, be an indication of a penal law, as if it should seem excessive for the guilty person at the same time to incur sin and such a penalty. This will especially happen when, as in merely fiscal laws, a pecuniary penalty formally compensates for the prestation owed;

d) More often than many think, circumstances bring it about that a law which is of itself penal must be observed in conscience. Thus, in time of war, it is by no means lawful for a duly enlisted soldier to desert the line of battle. Thus, when, to prevent or repel the scarcity of goods or their excessive price, citizens are ordered either to bring foodstuffs into common stock, or to be content with a moderated price, common necessity will easily impose these things in conscience;

e) What is said concerning the accidental obligation of religious rules from scandal, from subjective disorder of appetite, etc., must be transferred here also, proportion being preserved;

f) Yet we ought not urge civil laws, for example fiscal laws, beyond the way in which upright men are accustomed to observe them. But at the same time such observance must be inculcated upon all.

Moreover, the question will recur concerning various laws, and in the civil matter, it is especially moved concerning laws of taxes, hunting, fishing, and exterior police.

Finally, he who has violated a law from formal contempt of the legislator or of authority as such will have sinned gravely by that contempt itself: something else would have to be said if the thing prescribed is merely contemned because it is esteemed little or because it has not been rightly prescribed (Ballerini-Palmieri, Opus theol., I, tr. 3, De Legibus, n. 303).

¹ Thus Busembaum, De Legibus, dub. IV, apud St. Alphonsus or Ballerini-Palmieri.

— What can be prescribed. 1. From the very notion of law it is gathered that the human legislator can prescribe all and only that which it is expedient to prescribe for the common good of the society over which he is placed. And matter reserved to the ordering of the power which rules a higher society must be excepted, such as pontifical authority is with respect to episcopal or diocesan authority, and ecclesiastical power toward civil authority.

2. Merely internal acts are excluded. For human law, since it is a common precept, affects individuals insofar as they are part of a visible society and therefore communicate socially with one another. Wherefore that power is necessarily of the external forum. Legislative power for the internal forum cannot be conceived unless as vicarious of God and to be exercised in the name of God: but no trace of such power is detected either directly from revelation or indirectly from the usage of the Church ¹. But internal acts, that is, acts which are completed in internal powers, do not pertain to social communication: through them we do not communicate with others. Therefore, whether it is a question of civil society or even of the Church, interior acts directly and according to themselves cannot be the object of human law. Thus St. Thomas, who applies this to any precept whatsoever of a Superior, using this reason, that man can neither bear judgment concerning another's internal acts nor efficaciously exact penalties ². And indeed, legislative, judicial, and coercive power are parts of one integral jurisdictional power, which therefore of itself is contained by the same limits.

Suarez, Leg., l. 4, c. 12-13; Lugo, De Fide, d. 23, n. 6, 10; St. Alphonsus, l. 7, n. 34; d'Annibale, I, 200, also hold this. Yet there are not lacking today those who think that the power of prescribing internal acts must be conceded to the Church. Thus Ballerini-Palmieri, Op. th., I, n. 390 ff.; Bouquillon, n. 110, whom Lehmkuhl, I, 221-224, favors.

Nevertheless:

a) Hidden acts are not excluded from human jurisdiction: they are hidden by accident;

b) By human power mixed acts can be commanded, which are composed of an exterior act and an interior act required either that the act be human, or that the act be juridically valid, or that it have the prescribed species. For unless you wish to erect a futile human power, it must be able to reach those things which integrate the exterior act. Thus he who is ordered to take an oath or administer a sacrament must have the intention of swearing or administering. He who is obligated to an act of divine worship, for example to reciting the breviary, violates the human law itself if he has not conceived the intention essential to prayer. The worthy reception of the sacraments can also be prescribed by the Church;

c) An act which is capable of both modes, interior and exterior, falls under human precept by reason of the exterior mode which can be enjoined. Yet of itself it will be enough that the subject by an interior act do what he is ordered to perform. Thus a religious Superior, the Pope, can prescribe the application of Mass, since they can exact that the application be conceived by voice or in writing. But even an application made internally satisfies the law of itself;

d) The Church can attach a certain favor, for example an indulgence, to the condition of an interior act. Yet she is accustomed to exact some exterior act. Cf. concerning indulgences;

e) When a dogma is defined or an infallible moral declaration is promulgated, divine law itself imposes interior assent. But excommunication for merely internal heresy is not incurred. Cf. Lugo, De Fide, d. 23, n. 6, 10;

f) For the good of individuals, the Church has been endowed with a certain judicial and dispensative power of the internal forum, to be exercised in the name of God. While she uses that power, by absolution and dispensation, she absolves or remits even internal sins and internal vows. And in the same forum, where the cause is conducted between God and man, internal acts also can be prescribed.

Furthermore - this is the practical force of that opinion - what the Church cannot prescribe, she cannot fortify with a censure latae sententiae, or, if perhaps it becomes known, sanction by a judicial sentence.

Therefore those differ less from the doctrine handed down above who, with the approved authorities cited by Ballerini-Palmieri, I, 390 ff., distinguish directive force from coercive force, and attribute to ecclesiastical power only directive force over merely internal acts. Yet they use a little-effective argumentation. When they appeal to the end of ecclesiastical power, which is the spiritual good of souls, it is easily answered that, if it is a question of social power or of the external forum, the end is the spiritual good of souls to be procured through an apt social cooperation, but not through the direction of individual persons: this pertains to the internal forum, where human power is not legislative. Nor are the words of Christ to be pressed: "Whatever thou shalt bind," etc. For these must be accommodated to the nature of the thing, to the mission of the Church, and to the traditional sense; otherwise a direct power in temporal matters also would have to be acknowledged to the Church.

¹ Suarez, Leg., l. 4, c. 12, n. 10.

² 1, 2, q. 91 art. 4; q. 96 art. 5.

— In canon 10 this rule is laid down: "Laws regard future things, not past things, unless provision is made in them concerning past things by name."

But a few things must be added concerning the application of the rule and concerning the exceptions by which it is circumscribed.

1. Concerning the application of the rule:

a) The application is clear when it is a question of a law merely prescribing or prohibiting. Acts done before were licit, and cannot constitute anyone guilty;

b) With respect to a penal law, the act of itself must be estimated by the law which was then in force. But derogation from this rule in favor of the accused is customary. Cf. immediately below;

c) The application is more difficult to a law which invalidates acts, makes persons incapable, or exacts conditions for the valid or licit celebration of an act. How is an acquired right to be defined, from which, in these cases, there must be no derogation? The discord of opinions concerning this matter is astonishing. From the principle handed down above, n. 173, acts remain valid if the conditions of capacity and form which were required when the act was done have been fulfilled. Yet concerning a revocable and easily repeatable act, such as a testament, the matter is controverted, so that one must act cautiously in this matter.

As regards the legal effects of an act, the effects produced up to the new law subsist; that is plain. But from the moment of the new law, the efficacy of a valid act will of itself have to be estimated from the new law. Suppose a law which changes the portion concerning which a testator is permitted to dispose freely, or introduces a new cause why agreements can be rescinded. That law will also rule prior agreements and testaments concerning an inheritance not yet devolved when the law is promulgated. The status of persons (insofar as it is defined by age and origin) is of itself ruled by the new law. Wherefore an adolescent who was fifteen years old when the Code began to be in force previously could validly take a wife. But from the Code being in force he will not be able to do this until he has completed the sixteenth year of age. Yet the marriage which, as is plain, he contracted before the Code when fourteen years old subsists. A minor does not retain under the new law (c. 93, § 2) a domicile which he had acquired under the former law.

Concerning the effects of agreements, this particular thing must be observed, that the parties, through the legitimate way of agreements, acquired for themselves rights which of themselves must remain untouched under the new law. Wherefore, even under the new law, the effects of agreements must be estimated from the law under which they were made.

2. Concerning the exceptions to the rule:

a) The procedural order (or order of judging) which is established by a new law is applied to cases born before the new law. For the new mode is presumed to be more perfect, and therefore is thought to be such that its use of itself is more useful to justice and to the litigating parties ¹;

b) Because the accused is to be favored, can. 2219, § 2 establishes this rule: "Although a later penal law obrogates a prior one, nevertheless, if the delict, when the later law was made, had already been committed, the law more favorable to the accused must be applied; but if the later law removes the law or only the penalty, this ceases at once, unless it is a question of censures already contracted."

N.B. Many things in this matter remain doubtful and controverted, concerning which cf. juridical treatises. We add only this one thing: since a later law is presumed to be more perfect than the preceding one, in doubt one should rather answer in favor of it.

¹ Yet a moderation is tolerated, for example, in causes of beatification by way of non-cult, which were begun before the more severe new law.

205. Existence of Obligation. That a just human law, whether ecclesiastical or civil, induces an obligation (and sometimes a grave one) in conscience is certain. For God says: "Through me kings reign and makers of laws decree just things";⁹⁶ and: "He who despises you despises me."⁹⁷ St. Paul⁹⁸ also admonishes: "Let every soul be subject to higher powers; for there is no power except from God; and those which are, have been ordered by God. Therefore he who resists power resists the ordinance of God. But those who resist acquire damnation for themselves.... Therefore be subject of necessity, not only on account of wrath, but also on account of conscience." Bringing forward these texts of Sacred Scripture, the Sacred Congregation of Propaganda Fide on June 23, 1830,⁹⁹ writes to the Apostolic Vicar of Siam: "That Christians are held to the observance of civil laws, even if these have been made by unbelieving princes, provided these are not opposed to the Christian religion and to the moral doctrine of the Gospel, there is no room for doubting." The Council of Trent¹⁰⁰ defined: "If anyone says that the baptized are free from all precepts of holy Church, ... so that they are not held to observe them unless they have wished of their own accord to submit themselves to them, let him be anathema."¹⁰¹ - The reason for this obligation is not only the positive ordinance of God, which is drawn from the texts alleged above, but also because otherwise anarchy, which assuredly is a monster worse than dog and serpent, cannot sufficiently be kept away from human society.

⁹⁶ Prov. 8:15.

⁹⁷ Luke 10:16.

⁹⁸ Rom. 13:1, 2, 5.

⁹⁹ Collectan. de Prop. Fid. n. 815.

¹⁰⁰ Sess. 7, can. 8, on baptism (Denz. n. 864).

¹⁰¹ Several heretics taught that no ecclesiastical law as such obliges in conscience, such as the Waldenses, Wycliffites, Luther (De captiv. Babylon., c. de bapt.), Calvin (Inst. l. 4, c. 10), and among Catholics Gerson, who dares to say: "The omission of canonical hours, the transgression of ecclesiastical fasts and generally of all statutes and rules and canons is never a mortal sin, except insofar as it is found discordant with the preceptive divine law; and thus insofar as some law has something admixed from the preceptive divine law, so far, and no further, is its transgression mortally vicious" (Tract. de vita spirituali animae, lect. 4, coroll. 4).

206. Quality of the obligation. The obligation of observing a law can be 1. grave or light; 2. direct or indirect. But what obligation is imposed in individual laws, whether grave or light, cannot be determined by a general rule; rather this depends both upon the circumstances of the matter and the end, and somewhat also upon the intention of the legislator, since he can command a matter grave of itself under light obligation. That the legislator can command under light obligation a matter grave of itself is taught by the opinion by far truer and more common.¹⁰² For every law is a certain bond, which ought not be stricter than is necessary. But now it happens that the legislator obtains the end of the law in a grave matter with a light bond. Therefore then he not only can, but must, command a grave matter under light obligation. For the grave obligation of a law, therefore, two things are required, namely, grave matter and the will of the legislator to oblige gravely. But the legislator cannot command a matter light from every side under grave obligation. For this would impose an intolerable burden upon subjects; and such a law would no longer be for the true utility of the community. - In practice it is licit to discern the measure of obligation:

a) From the very words of the law, which, if they command severely, indicate the gravity of the obligation. Thus, for example, the following formulas indicate grave obligation: we command under threat of divine judgment; we command in virtue of holy obedience, etc.

b) From the gravity of the penalty which the legislator threatens against transgressors. For a grave penalty cannot be inflicted for a light fault. Whence, for example, if some law is imposed under pain of excommunication or under deprivation of benefice, etc., an evident sign is had that this law obliges under grave obligation.

c) From the interpretation of doctors and from the practice of subjects. Thus, for example, doctors commonly teach that a priest celebrating Mass is held under mortal sin to pour some little drops of water into the wine to be consecrated; likewise they teach that it is a grave sin if someone before the reception of the Eucharist eats even the least bit of food.

¹⁰² Cf. S. theol. II-II, q. 105, a. 2; Gonet, Clypeus theol. thom. disp. 5, a. 3; Billuart, De leg. diss. 4, a. 5; St. Alphonsus, Theol. mor. l. 1, n. 143.

207. Scholion. On Formal Contempt of Law. If someone transgresses any law whatever (even one obliging of itself only under light obligation) from formal contempt, he sins mortally.¹⁰³ But formal contempt is present if someone despises the legitimate authority itself and precisely from such contempt transgresses the law. The reason why formal contempt in the transgression of any just law is always a mortal sin is taken from the grave rebellion against legitimate authority, which is always included in formal contempt. But formal contempt is not present: a) if someone does not observe the law from another motive, for example, from passion, from weakness, etc.; b) if someone despises or makes little of the thing indeed commanded in itself, but not precisely as commanded; c) if someone despises the superior not as superior, but as a private person on account of his vileness, weakness, or other imperfections. In practice truly formal contempt happens rather rarely. Discussion will return to this matter below, II, n. 579.

¹⁰³ Cf. S. theol. II-II, q. 186, a. 9 ad 3; Sylvius, Commentary on I-II, q. 96, a. 4; St. Alphonsus, l. c., n. 142. "In any matter whatever, formal contempt of law or of the legislator ... is always a mortal sin."

208. Extension of the obligation of law. Law obliges:

1. To knowledge of itself. This is plain of itself. For how can a law rightly promulgated be rightly observed, if it is not known by the subjects? Whence it follows that every subject, according to his capacity and according to his office, must procure for himself sufficient knowledge of human laws. - Knowledge of ecclesiastical laws is necessary not only for prelates, but also in some way for all priests; and therefore Pope Celestine¹⁰⁴ already established: "Let it be permitted to none of the priests to be ignorant of the canons." And Daniel Concina¹⁰⁵ deservedly says: "Therefore knowledge of the canons is necessary for theologians and will be of great use, ... and if a theologian is ignorant of it, he will be unfit for his office." - Even simple faithful must know at least the more principal ecclesiastical and civil laws.

2. To employing the ordinary means which are proximately necessary for its observance. For he who is held to obtaining an end is also held to employ the means which are necessary for obtaining the end. But I say: a) to ordinary means. Therefore extraordinary means are not commanded, since their procurement is too burdensome. I say: b) which are proximately necessary; for remotely necessary means ordinarily are not commanded by human law. Whence, for example, the ecclesiastical law commanding the recitation of the Breviary also prescribes the ordinary means necessary for this recitation, for example, the book of the Breviary, the book of the Directory; but it does not prescribe that a cleric have two copies of the Breviary for this purpose, namely, that if by chance he lost one copy, he would still have another for the satisfaction of his obligation. - The obligation of employing means includes the obligation of avoiding impediments to fulfillment. Whence it is not licit without proportionate cause to do something which would impede the proximate fulfillment of the law; for example, it is not licit in the morning on Sunday to go hunting or walking in a way which would impede the hearing of Mass; it is not licit without proportionate cause on a fast day to do some extraordinary labor which would render fasting impossible. But for judging in practice when it is licit to place an impediment to the observance of human law, one must attend both to the gravity of the law and to the utility of the transgressor, and generally the rules given above in n. 57 concerning the indirectly voluntary must be observed.

Note. Above, at the beginning of this article, it was said that every just law produces some obligation in conscience, so that the transgressor of the law sins before God. Yet this obligation is not always direct, that is, by force of the law itself, but sometimes indirect, that is, by force of circumstances; namely, if there is question of a penal law, or an invalidating law, or a law founded on a false presumption. Concerning each of these laws one must treat specially.

¹⁰⁴ Decree of Gratian, c. 4, D. 38.

¹⁰⁵ Theol. christ. I, l. 1, diss. 3, c. 14.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

289. Corollary.

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

I say, 1st. Any law induces a true obligation, at least to penalty; for in this law differs from counsel, that the subject cannot with impunity set the latter aside according to his own pleasure.

I say, 2nd. Any 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 the Apostle says, Rom. xiii, 2: "He who resists power resists the ordinance of God. But those who resist acquire damnation for themselves."

I say, 3rd. Law obliges under grave or under light obligation according to the gravity of the matter or circumstances, or of the end specially intended by the superior. But an affirmative law obliges always, but not for always; a negative law, however, obliges both always and for always, that is, for each single moment.

I say, 4th. Positive divine law and human law generally do not oblige with a very grave inconvenience, or with grave harm, which is accidentally joined to the observation of the law. This is clear from natural and canonical right, from the practice of the Church, and from the consent of all.

I say, 5th. Laws, even invalidating and inhabilitating ones, do not urge in doubt of law; but in doubt of fact the Ordinary can dispense in them, provided that it concerns laws in which the Roman Pontiff is accustomed to dispense (Can. 15).

Question 1. Can a legislator command under light obligation in grave matter?

Response. Affirmatively, at least more probably, because the quantity of the obligation depends on his will, just as the law itself does. Yet he cannot oblige under grave obligation in light matter, because then proportion would be lacking, unless the matter, light indeed in itself, should become grave by reason of the end or circumstances. - Cf. St. Alphonsus, n. 143.

Question 2. What matter of law must be judged grave or light?

Response. This must be gathered, 1st, from the very words of the law; 2nd, from the gravity of the penalty inflicted; 3rd, from its interpretation; 4th, from its object, end, and circumstances. Thus, for example, it is grave for one celebrating Mass if he omits to pour into the chalice a few little drops of water; it will be light if on a day of fasting you chew an ounce of bread outside the refection. - Cf. St. Alphonsus, n. 144. - Lacroix, n. 663.

Question 3. Is the violation of law in a light matter grave from contempt?

Response. Affirmatively, if the contempt directly affects the legislator formally as such, because the very authority from which laws obtain force is contemned. But the sin will not be grave if the contempt regards only the matter as light in itself, or if someone transgresses the law from carelessness, anger, or another cause of this sort. - Cf. St. Alphonsus, n. 142.

Question 4. Does a law founded on presumption always oblige?

Response. Laws made for guarding against a general danger urge, even if in a particular case the danger is not present (Can. 21).

But a law founded on a presumption of fact does not oblige if the fact does not really subsist, because presumption yields to truth. - Cf. St. Alphonsus, nn. 100, 150.

DISSERTATION III. ON HUMAN LAW St. Thomas, q. 95.

That some promulgation of law is required in order that it oblige, we said above in treating of law in common. It is now asked what kind is required for human law. And the question can be raised both concerning laws simply so called, and concerning revocatory laws of laws and privileges. Whence let there be

§ I. — On the promulgation of human law simply so called.

I say 1°: From the nature of the thing, positive law set aside, that promulgation of human law is required and suffices by which it can morally come to the knowledge of subjects; because promulgation of law is necessary for this reason, that it become known to subjects. Therefore, from the nature of the thing, that is required and suffices by which it can morally and in a human way come to the knowledge of subjects, if not simultaneously, at least successively.

I say 2°: Positive law being considered, the imperial law must be promulgated in each province, or in their metropolis, in order that it oblige in them. So it is commonly held.

It is proved from Novella 66 of Justinian on newly made constitutions [Novellarum constitutions], where the emperor decrees that his laws then at last oblige in the provinces when they have been promulgated in their metropoles.

The same seems to be said of kingdoms and provinces which use Caesarean law, on account of the cited Novella.

But as to other kingdoms and provinces, we must stand by the terms of the first conclusion, or hunt out from the circumstances what may be the intention of the legislator, unless usage has determined something special.

I say 3°: It seems more probable that pontifical laws establishing new right and inducing a new obligation must be promulgated in each province or diocese at least virtually, in order that they oblige in them; unless the Pontiff express the contrary.

It is proved 1º. In those things in which canonical law decrees nothing, we must stand by civil law. But civil law requires, as we said, the promulgation of a law in each province in order that it oblige in them, and canonical law decrees nothing on this matter. Therefore. — The major is proved from canonical law itself, cap. Intelleximus, Decretal. lib. V, tit. 32, De novi operis enuntiatione, where it is said: « As laws do not disdain to imitate the sacred canons, so the institutions of the sacred canons are aided by the constitutions of princes. »

It is proved 2º. Promulgation of law is required for this reason, that it can become known to subjects. But this will be obtained only with the greatest difficulty and after a very long time in the most vast empire of the Church extended even to the farthest parts of the world, if it be promulgated only at Rome; but easily and within a short time, if it be promulgated in each province. Therefore the will of the Pontiffs is thus presumed in law, when they do not express the contrary.

It is proved 3° from inconveniences. If a law promulgated only at Rome obliged everywhere, grave incon-

^{1 1} In Gaul, promulgation is made by the king or by the supreme magistrate of the republic through a decree which ought to be inserted into the authentic collection of laws, which is called Bulletin des lois. On the first day after promulgation, the law obliges in the prefecture in which the seat of government is, and in the other prefectures one day is added for every ten myriameters, unless the prefects are bidden by the supreme authority, for urgent cause, to accelerate the promulgation.

venientias would follow. For it would follow that, if it were an irritating law, say of marriage in the fifth degree of consanguinity, all marriages contracted in that degree by the ignorant would be invalid. But if it were a law only forbidding or commanding, say a fast, deformity and confusion would be introduced among the inhabitants of the same province or city, and occasion would be given to scruples and anxieties; for those who learned something of the Roman promulgation would be bound to fast, and while the greater part was ignorant, the few who learned it could observe the law neither easily nor fittingly, and thence scruples and anxieties. Therefore we say with foundation that the Sovereign Pontiffs, whose rule is sweet and benign, and to whom power is given for edification and not for destruction, do not will their laws to oblige in provinces before they are promulgated in them, unless they declare that they intend otherwise.

It is confirmed. The common opinion is that even a pontifical law not received by usage does not oblige, chiefly for this reason, that the mind of the legislator is presumed to be that it not oblige in this case. But it is far more consonant with equity and reason to presume that he does not intend his law to oblige because it is not sufficiently promulgated, than because, although promulgated, it is not received. Therefore. Finally, the Sovereign Pontiffs know that many of their laws are not observed in many provinces through defect of promulgation. For this reason the bull of the Cenacle does not oblige in Gaul; clandestine marriages in certain places in which the Tridentine [decree] was not promulgated are still valid; and so many other things. Likewise they know that our opinion is handed down by many, and yet they are silent. Therefore it is a sign that this is their mind, that their own laws do not oblige in those provinces in which they have not been promulgated.

I said 1° in the conclusion: « Pontifical laws establishing new right and inducing a new obligation; » because, if a pontifical law only declares ancient right, whether natural, divine, or human sufficiently promulgated, it suffices, as far as the force of promulgation goes, that it be promulgated at Rome, in order that it oblige everywhere those who in any way whatsoever learn of that promulgation. Whence dogmatic laws declaring something to pertain to the faith, condemning propositions or books containing errors against faith or morals, do not need to be promulgated in each province in order that they oblige in them, but it suffices that it be known in any way whatsoever that they were so declared by the Church or the holy See; the reason is, because they are not so much laws as declarations of laws already promulgated. But by the very fact that anyone in any way whatsoever learns — whether by promulgation, by divulgation, or by his own study — that something is contrary to right, whether natural, divine, or even promulgated human law, he is bound to avoid it. Therefore especially if he knows, through divulgation, of the solemn pontifical definition so deciding and declaring, at least as far as the force of promulgation and knowledge goes.

I said 2º: « Unless the Pontiff express the contrary; » because, if the Sovereign Pontiff declared that he willed his law promulgated at Rome to oblige everywhere for some urgent cause, say because he knew that the promulgation of his law, exceedingly useful to the Church, would be unjustly impeded by malevolent men, or because the matter admits no delay, etc., we concede that then it would oblige everywhere; because, although ordered reason for introducing a law with fruit and effect and without inconveniences requires promulgation in each province, nevertheless per accidens and on account of necessity less can suffice; and if any inconvenience arise thence, it can be neglected and compensated by the fruit and effect of the law, which would have been wanting had it been bound to be promulgated in each province. Nor is it entirely similar in the case of the emperor, who perhaps, even setting positive law aside, could not do this, because he holds his authority originatively from the people, who according to some are not reckoned to have conferred upon him the power of enacting laws without their being promulgated in his provinces. But the Pontiff holds his authority immediately from Christ, and therefore independent of the nod and modification of peoples, but to be exercised as he shall judge more useful for the good of the Christian commonwealth.

You will say: There are many laws inserted into the body of canonical law, as decretals and others, which were promulgated only at Rome. Yet they oblige everywhere. Therefore.

I answer. 1°. I retort the argument. There are many laws which do not oblige everywhere, through defect of promulgation in each province, as appears from the proofs of the conclusion. Therefore.

I answer. 2°. I distinguish the major. Those which were promulgated formally only at Rome, I concede; virtually, I deny. For by the very fact that they are inserted by the authority and command of the Sovereign Pontiffs into the body of the law and read publicly in the schools, they are reckoned virtually and more than virtually, and therefore sufficiently, promulgated. The same I say of a law promulgated only at Rome which should be received and held in use by the faithful; for practice and usage would hold the place of promulgation: and thus the bull of the Cenacle obtained its force in many provinces.

As to what is commonly said, « That the Pope has feet of lead and not of feathers, » which some understand, because he is not bound to run through each province in order to promulgate his laws in them, I reply that the Pope has no need of feathered feet for running through all provinces for the sake of promulgating his laws, since everywhere he has legates, nuncios, bishops, to whom he can commit this office. [The opposite opinion, which seems true to us, is common.

For elucidating the question, a distinction must be made between the promulgation of a law and its divulgation. Promulgation is the act by which a superior intimates to the community, in the manner which he judges fitting and opportune, his will of commanding or forbidding something. By this act he properly constitutes his law, because promulgation, as has been proved, pertains to the essence of law. Divulgation, however, is the diffusion by which the law, now enacted, reaches the ears and consciences of the individual subjects. Divulgation indeed is required in order that subjects be bound to observe the law, but not in order that the law obtain its intrinsic virtue of obliging. Whence through promulgation the law has first act, and through divulgation it arrives at second act. Promulgation is made by the legislator himself, who thus manifests his will and exercises his office, unless it seem expedient to him that the law be intimated by the Ordinaries of places, who are not properly promulgators, but organs and heralds of the legislator. But when these superiors of their own motion publish a law passed by the supreme authority, they do not promulgate it, but divulge it; and this authentic divulgation makes the law undoubted. Divulgation made through ordinary channels likewise confers second act upon the law, provided its existence becomes certain. Whence

I say with Cardinal Gotti, de Legib., q. 6, dub. 4, § 1, n. 6: « If by his law the Pontiff expresses nothing to the contrary, as soon as a pontifical law is promulgated at Rome, without any other solemn promulgation of provinces and cities the Ordinaries are bound to take care that it be observed in their dioceses, and for this reason the pontifical mandate is wont to be directed to them. But even if it were not directed to them, they would be bound, when it came to their knowledge, to procure its observance. »

It is proved: 1° It suffices that pontifical laws be promulgated at Rome in order that all whom they concern be obliged, if it be lawful for the supreme Pontiff to will this, if he wills it, and if usages and custom consonant with law so bear it. But these three things are established. Therefore. — Proof of the minor. 1° It is certain that not only is promulgation absolutely necessary in order that true law be constituted and obtain the virtue of obliging, but also that the mode of promulgation is left to the judgment of the legislator, provided he manifest his will certainly to his subjects. Therefore it is lawful for the supreme Pontiff to will that the law which he promulgates only at Rome oblige all whom it concerns. 2º The will of the supreme Pontiff must be understood from the tenor of the documents by which he promulgates laws. But two clauses are commonly used when papal bulls are affixed at Rome in the accustomed places. The first is: « But that the present letters may more easily come to the notice of all, and no one can allege ignorance of them, we will that they be affixed and published at the doors, etc., and thus published, arrest and affect all and each whom they concern, just as if they had been personally intimated to each 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 with the seal of a person constituted in ecclesiastical dignity, exactly the same observance be shown everywhere, both in judgment and outside it, as if they had been exhibited or shown to each one. » If it happen that these clauses be changed as to words, they always exhibit the same sense, and from these the will of the legislator appears without ambiguity. Therefore. 3° Upon such promulgation being made, all causes which are brought to the Roman court are judged and terminated according to these laws: whence the right [jus] is established. Elsewhere today nowhere is it doubted that pontifical laws oblige once they have been published at Rome in the customary manner and affixed in the accustomed places. Therefore. And herein fact accords with law; for in cap. Ad hoec, de postulat. praelat., Decretal. lib. I, tit. 5, c. 1, it is read: « Nor let it be necessary, when a constitution is solemnly issued or publicly promulgated, to impress its knowledge upon the ears of individuals by special mandate or letters; but it suffices only that he be held to its observance who knows it to have been solemnly issued or publicly promulgated. »

2° That cannot be admitted which would take away the law's strength, weaken the supreme authority, and impede the unity of governance. But if pontifical laws concerning the universal Church could not suffice by being promulgated at Rome, this threefold inconvenience would follow; for 1º the law would in no way avail in places where it was not promulgated by the bishops for whatever cause; 2° the exercise of supreme authority could easily be impeded by the Ordinaries of places, whenever it pleased them to hold themselves negatively toward its commands; 3° thence in many things, and even in matters of greatest moment, often not without grave detriment to the public good, varieties of discipline would suffer in neighboring regions. Therefore.

You will object: That must be held which the Church teaches by facts. But the Church teaches by facts that laws do not oblige unless they have been promulgated in the diverse provinces. Therefore. — Proof of the minor. 1° The Apostles sent the decree issued in the Council of Jerusalem to the brethren who were at Antioch, and Syria, and Cilicia, through Judas and Silas, chief men among the brethren, Act., XV, 22 et 23. 2º The Fourth Lateran Council, under Innocent III, decreed that the constitution which it had issued against physicians who do not persuade the sick to summon a priest would have its force only « after it has been published by the prelates of the places. » 3º The Council of Trent, irritating clandestine marriages, sess. XXIV, de reform. matrim., cap. 1, « decrees that a decree of this kind begin to have its force in each parish after thirty days, to be counted from the day of the first publication made in the same parish. » Therefore.

I answer. I deny the minor. Not only could the alleged texts be adduced in proof, they clearly show on the contrary that, when the Roman Pontiffs or ecumenical councils will some law not to oblige before it has been published in the diverse regions of the world, they expressly declare this, because in this they derogate from the general rule. To be noted, in confirmation of this rule, is that the said councils commit to the Ordinaries of places, not the promulgation of the law, which is made by the legislator himself, but its publication; so that the law, which by the very fact of promulgation obtained its obligatory force and its first act, is suspended as to execution until it obtain second act through publication.

You will ask how bishops ought to promulgate their laws.

I answer. The doctrine expounded above regards laws of whatever kind. On the promulgation of synodal statutes Benedictus XIV says, de Synodo dioec., lib. XIII, cap. 4: « The manner in which this promulgation is to be made is not specifically defined by law. Wherefore Suarez rightly asserts, lib. IV de Legib., c. 5, n. 8, that laws passed by bishops are sufficiently promulgated if either they are read publicly in the cathedral church, or they are announced by the voice of a herald in the square of the city to bystanders, or written they are affixed in a public place designated for this purpose. Nay more, if synodal statutes regard not the people but only the clergy of the diocese, they do not need a publication distinct from that which is made in the very synod, to which the principal part of the same clergy is present; since Innocent III, in cap. Ad haec, de postulat. praelat., says disjunctively that the bond of the law extends over all « when it is solemnly issued, or publicly » promulgated. » Now no law is more solemnly issued than that which is made in the assembly of the principal part of those upon whom it bears. » As to laws passed outside the synod, it is lawful for the bishop to choose the mode of promulgation which seems to him more apt and fitting, that the knowledge of the law reach all his subjects, given the circumstances of the times.]

On revocatory laws.

A distinction must be made between a revocatory law of an onerous law, whereby indeed something is commanded or forbidden, or by which someone is rendered unfit or a penalty decreed, and a revocatory law of a privilege or grace. Also the revocation of a privilege or grace is either made publicly by common law, or privately by messenger or by letter. According to these distinctions I lay down the three following conclusions.

I say 1°: For the valid revocation of an onerous law, promulgation is not required, but it suffices that it be externally manifested; not however if it be conceived only in the mind.

It is proved. Law binds no one except by the will of the legislator, from which it has the virtue of obliging. Therefore, when the legislator wills and declares that his law no longer binds, its obligation ceases; and this the more, since it is something favorable from which injury is done to none nor damage inflicted, and therefore to be extended.

Nor does it matter that laws must be promulgated, as was said. For that is true only of true laws, not of revocations of laws, which are not true laws, but destructions of laws; for less is required to destroy a law than to establish it, because evil and destruction arise from any defect whatsoever, good and constitution from an integral cause.

I said: « Not however if it be conceived only in the mind; » because, as men are sensible, so they are governed by sensible actions and signs, not by the interior concepts of the soul alone. Therefore a revocation conceived only in the mind does not avail.

I say 2º: When the revocation of a privilege or grace is made through a common law to be promulgated, it seems more probable to me that, speaking per se and regularly, promulgation in the metropolis of each province is required and suffices; so that, this promulgation being posited, the privilege be revoked and acts done be null, although done by those ignorant of it.

It is proved. Although a merely revocatory law of a privilege is not a true law, but an abrogation of a private law, yet since it conduces to forming morals, and men ought to act according to it, so that, if they act against it and use unknowingly a revoked privilege, they incur grave inconveniences, it is required and suffices that it be so promulgated that it can easily and conveniently come to the knowledge of subjects; for this is altogether congruous with reason, and thus it is presumed in law of the mind of an equitable legislator. But if it be promulgated only in the court, either of the Pope or of a prince, it will come with difficulty to the knowledge of subjects; easily, if it be promulgated in the metropolis of each province¹. Therefore. ¹ To this end was the reply given above, when we laid down that it suffices, in order that any law whatever obtain its effect, that it be promulgated in the place where it is observed. …

I said: « Speaking per se and regularly; » because, if the legislator declares the contrary for a just cause, or custom obtains otherwise, we must stand by either.

I say 3°: When the revocation of a privilege or indulgence granted to some person, place or thing, likewise of delegated jurisdiction or of some other faculty and grace, is not made through a common law to be promulgated, but privately by messenger or letter, it does not obtain its force, or attain its effect, before it become known to the privileged one; because otherwise gravest inconveniences would follow, many contracts would be null to the detriment of others, many absolutions would be void, many marriages invalidly consummated, etc. So commonly the authors whom Sylvius and Loth. cite in great number and follow. Nay, some hold not improbably that casual knowledge does not suffice, but that it must be made by letter or messenger destined for this purpose: and this, if I mistake not, from the presumed will of the legislator.

DISSERTATION IV

§ 1. Legislation.

239. Since the State derives its authority from the moral law, it can, as we have shown, bind its subjects in conscience to observe its enactments (No. 231). In order to possess this binding force, such enactments must be just (ibid.); therefore, they must fulfill all the conditions required for just laws (No. 81). Hence, one readily perceives how false, when applied to legislative acts, the common saying may be, "The voice of the people is the voice of God." An unjust law enacted, even with perfect unanimity, by an entire nation would have in itself no binding force; a fortiori, it has no such power if passed by a mere majority. In fact, a majority may be just as tyrannical as a despotic monarch. Since laws are, by their nature, directions for future acts, they cannot justly brand an action as guilty which before the passage of such laws was considered innocent; nor can they justly increase the punishment for an act already committed. Hence, the Constitution of the United States forbids the enactment by Congress of ex post facto laws.

240. Though the civil authority has power to bind the conscience, yet not every purely civil law imposes such obligation. For laws have no greater binding effect than their authors intend to impose; nor can the obligation exceed the requirements of the common good. Some laws accomplish all the purposes for which they were enacted, if the transgressor is obliged to pay the appointed penalty when caught in the forbidden act; and the legislator is often content with this kind of sanction without being willing to lay a moral obligation on the conscience. Such laws are styled merely penal laws. In practice, it is often not easy to determine which laws are merely penal. Evidently, however, those laws oblige in conscience the violation of which would be positively injurious to the common good.

241. The office of legislation is to direct the acts of the citizens to the attainment of the end proper to civil society. That end includes public order, defense of private rights, and development of material and mental resources for the common good. Hence, legislation must take care --

1. To ward off physical evils from the country, e.g., contagious diseases. Therefore it has power to use the means necessary for such purpose, e. g., the enactment of sanitary regulations, the establishment of quarantine, etc.

2. To ward off moral evils, such as the dissemination of false doctrines that weaken morality, undermine society, and attack natural religion. Hence, too, the State has a clear right to put just restrictions on license of speech and of the press. The public profanation of Sunday, indecent theatricals, houses of debauch tend to degrade the standard of public and private morality, and, consequently, are subject to legislative action. On the other hand, religion, the chief safeguard of morals, ought to be at all times countenanced and actively protected.

3. To protect individual rights, such as the rights of minors, of orphans, of those concerned in contracts, in last wills, etc.

4. To forward material improvements, such as high ways, bridges, watercourses, harbors, and all such works generally as are useful to the country at large and too vast for private enterprise.

5. To promote mental development, by encouraging education and assisting educational institutions, especially those devoted to the teaching of the highest branches; for education contributes largely to the common good, and higher studies in particular, though pursued by the few, redound to the welfare of the people generally.

242. In many undertakings the State ought to aid but not to supplant private enterprise, assuming the lead when individuals and corporations can advance no further, subsidizing important works that affect the general welfare, without exercising a monopoly or competing with private efforts. The tendency of Socialism is to substitute State control for private enterprise in many departments of business, without any benefit to the common good. — Thus, instead of being a protector, the State would become a usurper of private rights, and in this way defeat the purpose of its existence.