The obligation of a law

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

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

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

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

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

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

Vol. I, Bk. I, Tr. II, Diss. II, Pt. I, Sect. III, Ch. I, Art. VII, § I. On the Obligation of Law Generally · Vol. I, Bk. I, Tr. II, Diss. II, Pt. I, Sect. III, Ch. I, Art. VII, § II, Point I. On Affirmative and Negative Law · Vol. I, Bk. I, Tr. II, Diss. II, Pt. I, Sect. III, Ch. I, Art. VII, § II, Point II. On Law Founded on Common Danger · Vol. I, Bk. I, Tr. II, Diss. II, Pt. I, Sect. III, Ch. I, Art. VII, § II, Point III. On Law Founded on Presumption · Vol. I, Bk. I, Tr. II, Diss. II, Pt. I, Sect. III, Ch. I, Art. VII, § II, Point VI. On Dishonest Law · Vol. I, Bk. I, Tr. II, Diss. II, Pt. I, Sect. III, Ch. I, Art. VII, § III. On Fulfilling the Obligation of Law

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

n. 7.

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

n. 8.

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

Wouters, Manual of Moral Theology

Ludovicus Wouters, C.SS.R. — 13 passages

Vol. I, Bk. I, Tr. II, Diss. II, Pt. I, Sect. III, Ch. I, Art. VII, § I. On the Obligation of Law Generally

n. 145.

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

n. 146.

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

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

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

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

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

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

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

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

³ Rom. 13:2, 5; 1 Pet. 2:13.

n. 147.

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

As soon as it has been promulgated. Therefore it is not required that the law be accepted by the subjects; rather, as follows from the very notion of law, it receives the force of obliging from the legislator himself. Hence proposition 28 was rightly condemned by Alexander VII: "The people does not sin, even if without any cause it does not receive a law promulgated by the prince"¹ (St. Alphonsus, I, 138).
At least in first act; for in order that a law oblige in second act, or subjectively, knowledge of it is required (n. 118). Meanwhile, where the law has been promulgated and the time of obliging established by the legislator has arrived, knowledge is presumed for the external forum.
Unless the legislator assigns another time generally or with respect to some special law.² Furthermore:

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

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

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

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

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

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

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

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

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

¹ Denzinger-Bannwart, n. 1128.

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

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

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

n. 148.

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

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

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

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

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

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

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

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

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

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

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

n. 149.

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

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

Grave obligation is recognized:

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

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

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

d) From the consensus of theologians.

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

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

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

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

Vol. I, Bk. I, Tr. II, Diss. II, Pt. I, Sect. III, Ch. I, Art. VII, § II, Point I. On Affirmative and Negative Law

n. 150.

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

Vol. I, Bk. I, Tr. II, Diss. II, Pt. I, Sect. III, Ch. I, Art. VII, § II, Point II. On Law Founded on Common Danger

n. 151.

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

n. 152.

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

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

Vol. I, Bk. I, Tr. II, Diss. II, Pt. I, Sect. III, Ch. I, Art. VII, § II, Point III. On Law Founded on Presumption

n. 153.

I. Notion. A law is said to be founded on presumption when the legislator passed it because he presumes something. Furthermore, presumption is a probable conjecture about an uncertain matter; one kind is presumption of law, which is established by the law itself; another is presumption of man, which is conjectured by a judge (can. 1825, § 1). Presumption of law is either presumption of law simply, or presumption of law and by law (can. 1825, § 2). Against presumption of law simply, both direct and indirect proof is admitted; against presumption of law and by law, only indirect proof is admitted, that is, against the fact which is the foundation of the presumption (can. 1826).

n. 154.

II. Obligation of a law founded on presumption. A law founded on presumption obliges or does not oblige according as that which is presumed exists or does not exist, in other words, according as the presumption is true or false. The reason is that the foundation of the law stands or falls with the truth of the thing presumed. The same must be said about a sentence of a judge founded on presumption; a sentence of this sort, if that which is presumed is false, of itself does not oblige; but by accident, namely by reason of avoiding scandal or preserving order, it can oblige (St. Alphonsus, I, 100, at the end; Homo Apostolicus, tr. 2, n. 26).

Corollary. "If in judgment it has falsely been proved that your animal caused damage, then you are not held to pay the penalty; and once a sentence has been passed that you pay, although externally, so that scandal may be avoided, you are held to pay, nevertheless you can secretly make compensation for yourself" (St. Alphonsus, Homo Apostolicus, loc. cit.).

Vol. I, Bk. I, Tr. II, Diss. II, Pt. I, Sect. III, Ch. I, Art. VII, § II, Point VI. On Dishonest Law

n. 165.

I. If a law commands something which is opposed to the natural law or to positive-divine law, it is illicit to observe it, according to that saying: "We ought to obey God rather than men."¹

¹ Acts 5:29.

n. 166.

II. If a law establishes something which indeed is not opposed to the natural law or to positive-divine law, but nevertheless exceeds the competence of the legislator, of itself there is no obligation of observing it. Yet by accident there will generally be an obligation, suppose by reason of scandal, of a disturbance to be avoided, or of damage, for example, to be averted from children.

Vol. I, Bk. I, Tr. II, Diss. II, Pt. I, Sect. III, Ch. I, Art. VII, § III. On Fulfilling the Obligation of Law

n. 167.

We inquire what things are required in order that the obligation of law be fulfilled, not what things are necessary in order that the act by which the obligation is fulfilled be good and meritorious in every respect.

Furthermore, in order that satisfaction be made to the obligation of law, this one thing is required: that what is commanded by the law be placed, or that what is prohibited by it be omitted. Hence:

I. To fulfill a negative law, even the involuntary omission of the prohibited work suffices. Hence, for example, one who is sleeping fulfills the precept of not stealing. Nevertheless one who abstained from the prohibited work only from inability, fear, or coercion would sin because of a wicked affection.

II. To fulfill an affirmative law which prescribes a real debt, even the involuntary payment of the debt suffices. The reason is that the law commands only the placing of the effect. Hence he is immune from the obligation of restitution who makes restitution while drunk.

III. To fulfill an affirmative law which prescribes a personal act, the voluntary placing of the prescribed work is required and suffices. It is said:

The voluntary placing of the prescribed work is required. That the placing of the work is required is clear; that a voluntary or free placing is required follows from the fact that in the case the legislator intends and imposes an act placed in a human manner, that is, voluntarily or freely. Therefore in this sense the intention or will of doing what the law prescribes is required. Hence one who, being wholly drunk, assists at Mass does not fulfill the precept. Otherwise it must be said about one who, compelled by fear, hears Mass, because fear does not remove liberty (St. Alphonsus, I, 165).
The voluntary placing of the prescribed work suffices. The reason is that the legislator commands only these things. Therefore it is not required:

a) That the prescribed act be placed from the motive of charity, in the state of grace, unless these pertain to the substance of the prescribed work, as in a law which commands an act of the virtue of charity or Paschal communion (St. Alphonsus, I, 162). Hence proposition 16 among the Baian propositions was condemned: "There is no true obedience to the law which is done without charity."

b) That the act be placed without concomitant sin. Except if the sin destroys the substance of the prescribed work. Hence he fulfills the precept who, for example, fasts from avarice or assists at Mass from vanity; but not he who confesses or communicates sacrilegiously. Therefore proposition 14 was rightly condemned by Alexander VII: "He who makes a confession voluntarily null satisfies the precept of the Church" (St. Alphonsus, loc. cit.).

c) That the act be placed with the intention of satisfying the law. For this intention is not commanded. Indeed even the very intention of not satisfying the law does not prevent satisfaction from being made to the law, since the subject cannot bring it about that the obligation of law, that is, an obligation which depends on the will of the legislator alone, persists after satisfaction has been made to the will of the legislator. Otherwise it must be said if there is question of the obligation of a vow or promise; this obligation, just as from the beginning it depends on the will, so also, if the will thus wishes, continues to persist (St. Alphonsus, I, 163, 164; IV, 176).

d) That the end of the law be intended, or that the act be referred to the end of the legislator. This intention or relation is not commanded, according to that saying: the end does not fall under the precept. Hence satisfaction is made to the law of fasting, even if the mortification of the flesh and its subjection to the spirit are not intended. Observe, however: that the end of the law does not fall under the precept does not prevent one who acts against the end of the law from sinning venially, "because to act contrary to the end of the law is a certain disorder, which does not seem to be excused from every fault" (St. Alphonsus, III, 1030, qu. 1); suppose if someone, after breaking the fast, ate two or three times (St. Alphonsus, loc. cit.).

Corollary I. Someone can satisfy diverse precepts at the same time, provided the diverse prescribed acts do not impede one another and the intention of the one commanding does not stand in the way. Hence one can at the same time satisfy the precepts of hearing Mass and reciting the Breviary, or of fulfilling sacramental satisfaction. But a penitent to whom the confessor imposed two Masses to be heard would not satisfy by assisting at two Masses at the same time. For the intention of the confessor would stand in the way (St. Alphonsus, III, 309; Homo Apostolicus, tr. 2, n. 30, and tr. 16, n. 57).

Corollary II. Someone can fulfill several precepts by one single act, unless the one commanding, or those commanding, intended distinct acts. Hence, by one single act of restoring, he satisfies who is held to restitution both from justice and from a vow. He does not satisfy by hearing one Mass who is held to assist at Mass both from the precept of the Church and from the precept of the confessor, unless the latter signifies that he does not intend a distinct Mass. Nevertheless, a penitent to whom the confessor imposed hearing Mass on each day through the week is not held to assist at Mass twice on Sunday; for the confessor is not presumed to intend that (St. Alphonsus, I, 166; Homo Apostolicus, tr. 2, n. 31 sq.).

IV. As regards the time of fulfilling an obligation, take these points: If the legislator has determined the time, this must be observed. If the time was not determined, the obligation must be fulfilled as soon as can morally be done. In the case, delay is grave: first, if there accedes a grave danger of not fulfilling a grave law; second, if the matter from the delay becomes notably worse, as if someone vowed religion and, without just cause, long delayed entrance; these things, however, must be explained and completed more in their own place. Besides, observe:

In the private celebration of Mass, in the private recitation of the canonical hours, in receiving Holy Communion, and in observing the law of fasting or abstinence, although there may be another usual reckoning of the place, one can follow the time of the place, whether local, either true or mean, or legal, whether regional or some other extraordinary time (can. 33, § 1). Therefore, in observing the stated laws, it is licit to follow: first, usual time;¹ second, local time,² both true and mean; third, legal time,³ both regional and some other extraordinary time.
No one is held to anticipate, that is, to fulfill a law before the useful time of the obligation has begun, even if he foresees that afterward he will be impeded from fulfilling the law; indeed, by anticipating he does not even fulfill the law. But one who, once the useful time of the obligation has begun, foresees that afterward he will not be able to satisfy the law, is held to fulfill it in due time (St. Alphonsus, I, 157; IV, 155; VI, 294, 297, 298).
One who did not satisfy the obligation at the time determined by law is not held afterward to supply, if the time was assigned for ending the obligation. Otherwise it must be said if it was assigned for urging the fulfillment of the obligation. Furthermore, the time is considered assigned for ending the obligation if the obligation is affixed to a certain day, as obtains in the laws of fasting, abstinence, hearing Mass, and reciting the Breviary. It is considered assigned for urging the fulfillment of the obligation if something is imposed to be performed within three days, within a year (St. Alphonsus, III, 220). If the time has been determined in some other way, it should be gathered from the nature and end of the law, or from custom, whether the time has been determined for ending or for urging the obligation.⁴

¹ That is, the time which the public and customary clocks of the place in which one is staying are accustomed to use. Commonly, but not always, it coincides with legal time.

² Local time is the time which is measured by the putative daily motion of the sun around the point of earth in which one is staying. It is distinguished into true and mean. True local time is the time which indicates the aforesaid motion of the sun exactly; it is indicated by a sundial. Mean local time is that which indicates the stated motion of the sun according to the mean duration of the day computed through the year.

³ Legal or public time is the time which has been prescribed by law or adopted by common civil usage. Generally the mean local time of some principal city is established as legal time for the whole kingdom. Legal time is called regional when it has been stably established for a whole region; it is called extraordinary when, for a passing cause, it is established in an extraordinary way, as summer time.

⁴ As regards annual communion, the law itself adds the clause: the precept of Paschal communion still urges if someone, for any cause, has not fulfilled it at the prescribed time (can. 859, § 4).

Bucceroni, Moral Enchiridion

Gennaro Bucceroni, S.J. — 1 passage

Bucceroni, Moral Enchiridion, On Laws

n. ¶11.

N. 89. 108. - Whether a Law Obligates with Grave Inconvenience?

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

Bucceroni, Cases of Conscience

Gennaro Bucceroni, S.J. — 27 passages

17. On the Obligation of Law

Caius accepted the inheritance of Sempronius simply, without first making an inventory, seeing that it consisted of many movable and immovable goods. Wherefore Caius hoped that his fortune would be increased not a little from it. But, since the debts of the deceased exceeded the inheritance, he, seeing that he had been deceived, refused to pay them. The matter is brought into court, and by the sentence of the judge, in the first instance and in the second and third appeal, he is condemned, according to law, to payment.

Q. 1. What is a law founded on presumption? 2. Is Caius held in conscience to pay those debts?

R. To the first, cf. I. M. 204, 205, 206. To the second: "If the heir," say the Salmanticenses, "does not make an inventory within the term prescribed by law, he is held to all the debts and obligations of the deceased, even beyond the resources of the inheritance; because the law presumes that the heir, by entering upon the inheritance without inventory, received more things sufficient for satisfaction, and concealed some by fraud. But in the forum of conscience, if the inheritance is truly insufficient to pay all the debts, are the heirs held to pay the debts of the deceased? Doctors dispute here. But the resolution of this difficulty depends on that which we have resolved: namely, whether laws founded on presumptions oblige in conscience, if the presumption fails. There we have proved at length the negative part. Wherefore, since the said laws are founded on the presumption of fraud and deceit, the heir who entered upon the inheritance without inventory is not held to pay, above the resources of the inheritance, the debts of the deceased in conscience, as at present Sylvester, Gomez, Petrus Navarrus, Villalobos, Alvarus, Martinus a S. Ioseph, Sanchez, Sayrus, Trullench, Diana, Vasquez, Bonacina teach. And this is also true even after the sentence of the judge; because even such a sentence rests on a false presumption of fraud or deceit, as Sanchez, Trullench, Bonacina, and others hold." Tr. 14, c. 5, p. 11, n. 151.

St. Alphonsus, Homo Apostolicus, tr. 2, n. 26, says: "It is asked whether penal laws founded on a false presumption oblige in conscience? It is necessary to distinguish the presumption called of presupposition, which is the presupposed fact, from the presumption of definition, which is the presumption of law, which judges according to the presupposed fact. Therefore, if the presupposition of fact is false, the law does not oblige; for example, if in court it was falsely proved that your animal caused damage, then you are not held to pay the penalty, and, sentence having been passed that you pay, although externally, in order that scandal may be avoided, you are held to pay, nevertheless you can secretly make compensation to yourself. The same holds for heirs who, on account of a neglected inventory, are punished by paying the debts of the deceased beyond the hereditary goods, when in reality the debts exceed the inheritance. But otherwise it must be said if the false presumption were only false in law; for example, if your animal certainly was the cause of the damage, but the presumption that this happened by your fault is false; because then you are held to pay the penalty (this is understood after sentence); because the end of the law is not only that it punish, but also that it render men more diligent in avoiding the damages of others."

D'Annibale, 3rd ed., p. 2, n. 396 bis, has these words: "When an inventory has duly been made, the goods of the inheritance and the goods of the heir, with the rights and obligations cohering with them, remain separated from each other by the law itself; on the contrary, when the inventory is in any way lacking, from the goods of the inheritance and from the proper goods of the heir one patrimony is made, and the rights and obligations of both coalesce. By this fact, in the former case the creditors of the deceased do not become creditors of the heir, who for that reason is not compelled to pay them beyond the resources of the inheritance; but in the latter case the creditors of the deceased become creditors of the heir; and therefore the heir is compelled in the external forum, if the inheritance is not adequate, out of his own goods also to satisfy not only the creditors, but also the legatees. Whether also in the internal forum is not sufficiently agreed. Some affirm it, since, by entering upon the inheritance, he is understood to have promised this to the creditors and legatees; others, more commonly, and more truly, deny it, because the law rests on a presumption of fact; namely, that the inheritance was rich." Nevertheless the same D'Annibale, not very consistent with himself, in the number almost immediately preceding, namely 394, says that, if an heir enters upon an inheritance without the benefit of inventory, whether the heir is held to satisfy all the debts of the inheritance "is not sufficiently agreed; the more common opinion affirms, and to me the truer. This question is whether hereditary creditors, who, once an inventory has been made, remain creditors of the deceased alone, when it is omitted become creditors of the heir? And who would deny it, the patrimonies of the deceased and of the heir being confused?"

The same is affirmed by many other theologians. Wherefore, as regards extrinsic authority, Caius cannot be obliged in conscience to pay the debts beyond the inheritance. But as regards the reason, a doubt can indeed be raised whether that law and sentence are founded on a presumption of fact, namely that the inheritance in reality exceeds the debts (since, ordinarily speaking, men are not accustomed in such a matter to be negligent and incautious, so that they enter upon an inheritance without the benefit of inventory unless they are first certain of its sufficiency and excess with respect to the debts), and that fraud and deceit truly intervene; or rather on a presumption of law, namely of the common danger of deceit and fraud. But since, as has already been said, men in this matter are not accustomed to be so incautious that they not only take no profit from it, but even suffer loss, it seems that that law and sentence are founded in reality on a presumption of fact. But since that presumption is false, Caius cannot in conscience be obliged by that law and sentence; for presumption yields to truth. Furthermore, since at most it is doubtful whether that law and sentence are founded on a presumption of fact or of law, an obligation in conscience cannot be imposed; for it is not certainly established. For it is unjust, and contrary to the axiom, That the condition of the possessor is better, to impose the payment of a debt when it is probable that no obligation of this payment exists. - I. M. 1055; G. 105, 106, 1016; Comp. v. 1, n. 102, 823; Elbel 307-310, 427-430.

Alexius completes the twenty-first year of his age on Saturday evening; nevertheless he would like to receive the subdiaconate in the morning, and he explains his desire to the vicar general, who responds that he can. For, he says, in those things which are morally estimated, the minimum is reputed as nothing. And this is also handed down by St. Thomas, II-II, q. 62, a. 2, c. and ad 4, and it is also had in L. 1, de Rest. in integr.

Q. 1. To what does law oblige? 2. What as to the case?

R. To the first, cf. I. M. 207, 208. To the second: Alexius cannot receive the subdiaconate. For, completing the twenty-first year of his age in the evening, he had not yet in the morning entered the twenty-second year required for the subdiaconate. The minimum in the case must altogether be computed and cannot be neglected; because there is question of a matter altogether determined and defined by law. The minimum is indeed reputed as nothing, as is well said in the case, when there is question of things which are morally estimated, as for example if a very little thing is omitted in hearing an entire Mass. But when there is question of things altogether defined, even the minimum on the contrary cannot be neglected. L. 15, de Divers. tempor. praescr. Moreover, from the Council of Trent, sess. 23, ch. 13, de R., no one can be promoted to the subdiaconate before the twenty-second year of age. And therefore the year begun is indeed sufficient, but the year not yet begun is by no means sufficient. - D'Annibale, 3rd ed., p. 1, n. 39.

Liborius, from the penance imposed on him by his confessor, had to keep a double fast, to hear two Masses, and to recite two rosaries. He willingly kept the fasts, led by a motive of avarice; and in order to diminish the inconvenience of the fast, he indulged sleep for almost the whole day, rising only to take the little morsel in the morning, at dinner, and at supper. But he heard two Masses at the same time, reciting two rosaries at the same time. And, since he himself was accustomed daily to recite the rosary, on that day he omitted reciting a third rosary out of devotion. But while he was hearing the Masses, having been gravely tempted, he consented to an evil desire.

Q. 1. How is law to be observed, and how is its obligation satisfied? 2. What is to be thought concerning Liborius?

R. To the first, cf. I. M. 213, 214, 215. To the second: Liborius indeed satisfied the obligation of keeping the double fast, although he sinned venially on account of avarice and laziness. For he kept the two fasts imposed on him in reality. But he by no means satisfied the obligation of hearing two Masses; for evidently the intention of the confessor was that he should hear two Masses at different times, otherwise he would have imposed on him only one Mass to be heard. Wherefore it suffices now that he hear the other Mass. For the fact that he adhered to an evil desire at the time of Mass did not indeed prevent him from truly hearing Mass, if at least he placed no exterior act incompatible with hearing the sacred rite. He also satisfied the obligation of reciting two rosaries; although he recited them during the time of Mass; since these two obligations can be fulfilled at the same time. Nor indeed is he held to recite a third rosary. For that is prescribed by no law, no precept, but is a work of supererogation. - G. 99-102; Elbel 392-396, 401, 402.

Pantaleo, a soldier, had harmed a certain rustic indeed beyond his intention, but not without some negligence. Pantaleo, accused by the same rustic, was condemned by his military commander to compensate the damage. But, because he was unwilling to compensate the damage, military pay of 60 lire was therefore subtracted from him. Pantaleo, thinking that he had been unjustly condemned and despoiled of his own property, secretly compensated himself for this subtraction of pay, stealing 30 lire from the rustic, and another 30 lire from his own commander.

Q. 1. Did Pantaleo satisfy justice, being unwilling to compensate the aforesaid damage, and unwillingly suffering the subtraction of his salary for repairing it? 2. Did he then act licitly by compensating himself secretly?

R. To the first: although Pantaleo had not afterwards used tacit compensation, nevertheless, unwillingly sustaining the subtraction of salary for repairing the damage, he would not have satisfied justice in conscience, namely as regards the internal affection of the mind. For this is opposed to the virtue of justice, and justice is injured in the affection, although in reality in the effect there is no injury to it. Cf. I. M. 213. To the second: Pantaleo acted illicitly and unjustly by secretly compensating himself, and he is held to restitution. For although theological fault was lacking, juridical fault was not lacking because of the negligence committed; and therefore the commander's sentence was legitimate and just. Wherefore, in the forum of conscience, he must altogether stand by it. - Elbel 397-400; G. 105, 106.

Patritius, on the day before the Ember days, spends the whole day hunting, foreseeing that by reason of weariness it will not be possible for him to fast. Moreover, on a feast day very early in the morning he indulges in wine a little more freely, foreseeing that he will not be able to be present at the sacred rite.

Q. 1. Is it licit to place impediments to the observance of law? 2. What as to the case?

R. To the first, cf. I. M. 220, 221, 222. To the second: Ithuriaga, Cas. 32, n. 9 seqq., resolves this case in this way. Patritius in the second case sinned both against temperance and against the precept of hearing the sacred rite. "What is more conformable to reason than that any precept, when it urges, at once by itself obliges both to placing the means which are by themselves and proximately necessary so that we may execute it, and to not placing impediments which can proximately obstruct the execution of it? Let him deny this who dares to deny it: that he who is held to the end is especially held to all that without which the end would be intended in vain.... He who is obliged to the execution of law is held also from this source both to employ the ordinary means necessary in themselves for observing the law, and, as far as can be done, to remove everything which can in itself obstruct the law from being observed when it urges.... Unless, however, there is question of impediments that are necessary, or so useful that it is preferable that they not be removed than that the law be fulfilled. For then it is settled that human laws do not urge so strictly that they oblige to omitting either necessary things, or things which are more excellent than the matter prescribed, so that this should be preferred to those. Wherefore, if necessity urges, or the advantage of assisting a sick person at the time when the precept of Mass urges, Mass is rather to be omitted than aid to the sick person. If someone truly cannot keep the fast and at the same time preach, or hear confessions, let him rather not keep the fast, so that he may apply himself to these works of piety, which are better than fasting. Nor by this reason is a work of counsel preferred to a work of precept; but the matter is constituted in such a state that, on account of the greater good, the obligation of the precept ceases, lest it seem to impede the greater good.

"Now, did Patritius sin or not, hunting on the day before the Ember days, as in the case? Indeed, under the leadership of the great Suarez, Sanchez, Dicastillo, Gobat, Tamburini, La-Croix, Palao, Sporer, Becanus, Moia, and all who with the latter contend that it is licit to place an obstacle to the execution of a precept, it is more probable to me, so that it may be permitted me to maintain it even through the Probabiliorists themselves, that Patritius did not sin against the law of fasting. For what is it on account of which he is said to have sinned? Is it because the day before he devoted himself to hunting? But the day before the precept was not yet present. Is it because on the following day, when the precept was now urging, he did not keep the fast? But on the following day, on account of the incapacity which followed, he was bound by no precept.... Therefore he sinned neither on the preceding day nor on the following day.

"You will say that he sinned on the preceding day, because the precept which now for now does not oblige, obliges now for then; whence Patritius on the preceding day had to abstain from hunting, so that on the following day he could fast. Very fine indeed! But what does this mean: the law obliges now for then? Certainly nothing else than that the law which now does not oblige will oblige afterwards; if therefore it will not oblige afterwards, it is badly said to oblige now for then; but, the incapacity for fasting supervening, the law no longer obliges to fasting; therefore Patritius on the preceding day, not even for the following day, was obliged absolutely, but only conditionally, namely if the law of fasting should find him fit for keeping the fast; but it did not find him fit because of the supervening weakness; therefore he did not sin against the law of fasting.

"But you will say that this is true if Patritius indeed foresaw, but did not intend not to keep the fast. For if he had devoted himself to hunting with that design, he would have clearly offended against the law of fasting. Yet I say the contrary myself: It is licit for anyone, with impunity, to place means licit by their own nature, from a direct intention of obtaining an end not prohibited by law; but hunting is something licit by its own nature, and to flee the obligation of the precept, or to effect that the precept not oblige, is not something prohibited by law; therefore it was licit for Patritius with that design to use his right, by hunting, so that he would not be bound by the law of fasting.

"If these things are true, with equal right and reason it will be said to be true that an ecclesiastic, the day before a voyage, can throw his breviary into the sea.... There is a distinction. For there are some means which must be placed before the precept begins to urge, so that we may fulfill the precept when it urges; because, namely, they are both directly and immediately necessary for the execution of the precept, almost as its matter, and otherwise they cannot so easily be procured when the precept is already urging. Thus, if today you have the opportunity of a confessor, which you foresee that you will not have tomorrow when you will be obliged to Communion, by the precept itself of Communion you are held to anticipate confession. And thus, by the precept itself by which an ecclesiastic is held to recite, he is held either to preserve the breviary or even before the time to provide for himself, so that, the precept arriving, he may be able to recite.... The matter is otherwise in the species of the case: for to abstain from hunting does not in itself, directly, proximately, and immediately pertain to fasting, so that by the very precept of fasting we must abstain from hunting, for this reason, that we may preserve strength for fasting; unless you wish that those gravely ill offend against the precepts of the Church even from this, that for the end of fulfilling them, they do not procure good health. Therefore, to finish in a word: the precept of reciting the canonical hours obliges absolutely to having a breviary, so that we may recite the hours; and hence the ecclesiastic who voluntarily deprives himself of the breviary sins against the precept. The precept of fasting obliges, not that we have strength for fasting, but that, if we have strength, we fast; and hence, if we do not have strength for fasting, by not fasting we do not sin against the precept of fasting. But we would sin (which is proved by the parity objected), if, foreseeing that on the very day of fasting fasting foods would not be available, we should be unwilling deliberately on the day before the fast day to provide them, or should consume those already provided for this end, that on the fast day we might be able to eat forbidden foods; because, namely, as the breviary for the canonical hours, so also fasting foods for the fast are equally required in themselves, directly, proximately, and immediately, as it were as the matter of the precept, so that by the very precept of fasting we must provide such foods even before the time, just as by the very precept of the divine office we must provide ourselves with a breviary. But strength for fulfilling the precept does not pertain to the matter of the same, nor is it a means, except by way of disposition by accident and remotely necessary for the execution of the precept.

"By custom thus interpreting the law, guilty of violation of feast days are sacristans, tailors, shoemakers, and in some places even bakers, who, when they could conveniently do so, are unwilling on the day before a feast to adorn churches, finish garments and shoes, bake bread, so that they may be compelled to perform all these very things on the feast day itself, by a necessity industriously sought. Similarly I think those guilty against the precepts both of annual confession and of paschal Communion, who on the day before the day (which is the term for fulfilling the precept) would go elsewhere, where he could not receive Communion or expiate his sins; because, namely, particular laws of this sort, no one denying it, oblige to not placing impediments on the day before to the execution of the precept: not so the law of fasting in the species of the case which we have discussed."

This resolution of the learned theologian can indeed be admitted, insofar as Patritius, as in the case, acting for another honest end, merely foresees that afterwards he cannot fast. For if, beyond this, he intends it, and with that design devotes himself to hunting, and therefore does not undertake hunting from another honest cause, then he seems to act in fraud of the law. For to act in fraud of the law is nothing else than to do something deliberately, so that the law may be eluded. This indeed the law itself implicitly prohibits; otherwise the obligation of the law, if not altogether, certainly in great part, would be made void. I. M. 221. "He transgresses the law," says D'Annibale, 3rd ed., p. 1, n. 176, "both he who does against the words of the law, whether he omits what the law commands to be done, or admits what it forbids to be done; and he who, embracing the words of the law, strives against the will of the law, L. 5, C. h. t.; whether he omits that which the law wished to be done, but did not command to be done in express words, or does that which the law did not wish to be done, but did not forbid to be done in express words, L. 29, h. t.; which we properly call acting in fraud of the law. Moreover fraud can be done to the law in almost innumerable ways. But, so that fraud may seem to have been done to the law, it is necessary that what is done or omitted be forbidden to be done or omitted by some law at least implicitly; for otherwise, against whom is the fraud? For the things which by no law, either explicitly or implicitly, are commanded or forbidden, each man omits or does by his own right; and no one acts in fraud who uses his own right, L. 56, de R. I.; C. 31, de Elect." But nothing seems more implicitly willed by the law than that nothing be done precisely with that intention or with that design, namely, that by eluding it someone may afterwards with impunity be able to act against the very words of the law and the law itself. - L. 1, 3, n. 672, 674, 1045, 1046; 1. 6, n. 569, 583; G. 103, 104.

Cleophas, born from a most noble family and lacking offspring, bound himself by a vow that, for the whole time of his life, on every Friday in honor of the Lord's Passion, he would keep a strict fast, if he should have male offspring for propagating the name of the family; otherwise that family would have to be extinguished. Cleophas obtained the desired offspring, and began faithfully to observe the fast. But after a year the offspring dies, nor does any hope appear that he will have another son.

Q. 1. When the end of a law ceases, does the law cease? 2. What as to the case?

Vol. I, Treatise On Laws, Part One. On Laws in General, Chapter V. On the Obligation of Law · Vol. I, Treatise On Laws, Part One. On Laws in General, Ch. V, Article I. On the Force of Obligation · Vol. I, Treatise On Laws, Part One. On Laws in General, Ch. V, Article II. On the Mode of Satisfying the Obligation of Law

R. To the first, cf. I. M. 172, 173. To the second: Cleophas is no longer held to keeping the fast, because the vow was uttered only under the condition, if God should give a male heir by the force of whom the family would flourish again. But this condition was not fulfilled, because the son born died a little later. Therefore the vow, as conditioned, the condition not subsisting, ceases to oblige. There is added that, the adequate final cause ceasing, likewise the obligation of the law ceases. But the final cause, and indeed the adequate one, of this quasi-private law has ceased by the very fact that every hope of obtaining a male heir and of propagating his family is supposed to have been cut off for him. - Elbel 424-426; G. 107, 108.

Bucceroni, Institutions of Moral Theology

Gennaro Bucceroni, S.J. — 21 passages

Vol. I, On Laws, IV. On the Obligation of Law

n. 202.

What is the obligation of law? - By obligation of law is understood a certain moral necessity, arising from the law itself, of acting thus or otherwise, so that someone may act honorably, that is, without any fault and without incurring penalty. Arising from the law itself: for this is the nature of law and precept, and in this it intrinsically differs from counsel. Hence S. Th. 1. 2. q. 96. a. 4, speaking especially of human law, says: "It must be said that laws laid down humanly... if indeed they are just, have the force of obliging in the forum of conscience from eternal law, from which they are derived, according to that saying of Prov. 8:15: By me kings reign, and lawgivers decree just things." 1 Pet. 2:13. 14; Rom. 13:1 seq.; Wirceburg. c. 4. a. 5. But it is not necessary that the legislator making the law and promulgating the law explicitly intend and explicitly declare the obligation of the law.

n. 203.

Does the obligation of law always urge, and under grave fault? - R. To the 1st: The obligation of an affirmative precept is always, but not for always; but that of a negative precept is always and for always. For an affirmative precept commands doing good; and although its force always remains, and the good commanded by the law must be done whenever the established time has arrived, nevertheless not every good must be done at every time, since it would be an unbearable burden for man always to act. But a negative precept commands declining from evil, which is to be avoided at every time, which indeed can be done. Established time: and therefore neither before nor after that can the law any longer be fulfilled. But within that time, if some impediment threatens by which afterward the law could no longer be fulfilled, it must certainly be fulfilled beforehand; for example, if on a feast day you cannot hear Mass at midday, you are bound to hear it before midday. But when the established time has elapsed, the law must still be fulfilled if the time was established only for urging the obligation, and not for ending it. L. 101; S. Th. 1. 2. q. 71. a. 5 ad 3, q. 76. a. 2 ad 5, 2. 2. q. 79. a. 3 ad 3.

R. To the 2nd: Law obliges under grave or under light fault according to the will of the legislator, if nevertheless the matter is capable. The reason is that the whole obligation depends on the will of the legislator, and proportion must be present between the obligation and its matter. Therefore the legislator can command under light fault in grave matter, but not conversely. L. 141. 143. - What matter is grave can be gathered from the very nature of the object, the end, and circumstances. - But what obligation is grave can be gathered: 1. From the very words of the law, if they have great force, as, We command in virtue of Holy Obedience, etc. 2. From the matter, if it is grave and it is not established to the contrary concerning the will of the one commanding. 3. From the gravity of the penalty. 4. From the interpretation of doctors or of custom. L. 144, l. 5. n. 56. Therefore when the thing is simply light, someone does not sin mortally, even if the superior commanded under mortal sin. L. 141 seq.; Struggl tr. 2. q. 2. n. 24, tr. 3. q. 2. n. 28. 29.

n. 204.

Does a law founded on presumption always oblige? - To presume is to opine; and presumption is a probable conjecture of an uncertain thing, that is, a judgment likely arisen from certain signs or indications. It is either of man or of law. The former is placed wholly in the estimation of a good man, and does not pertain here: for it is a private act. The latter is introduced by laws, and therefore without express law it is not to be admitted. For the law itself conjectures or orders one to conjecture. - Presumption of law is twofold: one of danger, the other of fact. Of danger, when the legislator, noticing from those things which frequently happen that something is not done or omitted without danger, forestalling dangers of this kind, forbids the former or commands the latter. Of fact, when, holding something as certain to have been done because it is commonly accustomed to be done so, from that supposed fact, as if it had really been done, he constitutes rights and obligations. This latter, if in law it receives contrary proof, is usually called of law; but if not, of law and by law. - On presumption of danger, for example, rests the law which forbids reading books of an unapproved edition, contracting marriages with non-Catholics; of fact, the law which holds that one was baptized who, born from Christian parents among Christians, grew up in Christian fashion, C. 3 at the end de Presb. non bapt. Of law, for example, that the man is the father whom marriage shows; of law and by law, for example, is that those who contracted marriage in a prohibited degree, denunciations having been disregarded, did not ignore the impediment. C. ult. de Cland. despons.; Trent sess. 24 de R. M. C. 5; Sanch. De Matr. l. 8. d. 25. n. 32; De Iustis l. 3. c. 16. n. 11. - C. 30 de Spons.

Thus a law which rests on presumption of danger always obliges, even if the danger ceases in the present matter. The reason is that the law does not cease as long as the end of the law has not ceased adequately. On the contrary, a law which rests on presumption of fact, if the fact does not really underlie it, does not oblige in the forum of conscience. Hence the axiom: Presumption yields to truth, whether it be only of law, or of law and by law. For although a presumption of law and a presumption of law and by law is taken for truth, it is not on that account truth itself. For this reason, notwithstanding a presumption of law and by law, a regular who, coerced by force, made profession, even after five years is not obligated by it; a debtor absolved by the sentence of a judge, even after this has passed into res judicata, remains a debtor. But as long as it does not appear manifestly that the presumption rests on a false fact, it is held as truth in each forum. - C. I. 1349 seq.; C. G. 1350 seq.; C. H. 1249 seq.; S. Th. 2. 2. q. 88. a. 9; Schmalz. l. 2. t. 23. n. 1; L. 100. 150. 151; Ithur. Cas. 39. n. 25. 26, Cas. 53. n. 23; Wirceburg. c. 4. a. 5.

n. 205.

You will resolve: After sentence you are bound to compensate damage truly inflicted by your animal, although without your theological fault. You are not bound to compensate damage if the damage is falsely thought to exist, and you can compensate yourself. L. 100; C. I. 1154.

n. 206.

Does a law founded on fiction always oblige? - From presumption ...from presumption differs a fiction of law, which is the assumption of a falsehood, made by the law itself from a just cause in a possible case, bringing about an effect of law as though it were truth. Wherefore a fiction is held for the truth of the matter; and from it, just as in a true case, the law establishes rights and obligations. Therefore there can be no doubt that this law also obliges. But indeed: 1. A fiction has no place except in the cases expressed in the law. Thus the law feigns the testator and the heir to be one person, but not in all things; it feigns a sick canon to be present in choir, who indeed gains the daily distributions, but not those which belong to those alone who are present. For the law does not establish that. Likewise prescription takes place, not where the person is, but where payment of the debt is to be made, or where the thing is, according to the laws of that place. Troplong, della Prescrizione, c. 1, n. 38, 39, 40. 2. A fiction ought not to operate more in a fictive case than truth in a true case. And therefore, although the law feigns one who is still in the womb to have been born, when his advantage is at issue, nevertheless if afterward he does not come forth viable, the fiction confers nothing on him. Since fiction imitates truth, it must be concerned with a possible case. 3. It is not valid beyond what is expressed in the law. And therefore it receives a strict interpretation. For rights and obligations in the case are from the law alone. Schmalz., l. 2, t. 23, n. 3; Reiffenst., l. 1, t. 2, n. 185. And so, e.g., with respect to receiving orders, a son accidentally born somewhere, by a fiction of law, is considered to have been born in the domicile of his father; and he can receive orders from the Bishop of this place, not from the Bishop of that place in which he was truly born. A. S. S., vol. 28, p. 233.

n. 207.

To what does law oblige? - Every law first obliges to knowledge of itself, and afterward to observance of itself. For law cannot be observed unless it is known. Therefore, unless it commands an act in vain, it must also implicitly command knowledge of itself, and it commands this first; since, without it, observance of the law is altogether impossible. Therefore a law is violated not only by an act opposed to it, but also by voluntary ignorance of it. Hence vincible ignorance concerning some precept is a sin, and in a grave matter can be grave, if the negligence was notable. L. 148-151. - Secondly, it obliges to observance of itself, that is, to furnishing that which the law commands to be furnished; not something else, for it does not command that. But since one who is obliged to an end is also obliged to the means, observance of the law also obliges one to employ these means, as to avert the danger of transgressing it. Since Pontifical laws are promulgated in the Official Commentary, the obligation consequently is to procure the aforesaid Commentary for oneself in order to know those laws. Yet it does not oblige to means except ordinary ones; for law is established for cases that commonly occur, and not for rare ones.

Consequently law obliges that no one act in fraud of it. To act in fraud of the law is to embrace the words of the law and to strive against the will of the law; R. I. in 6. Therefore he acts against the law who does what the law prohibits, or omits what the law commands. But he acts in fraud of the law where that which the law did not wish to be done, though nevertheless it did not forbid it to be done, is done, or where that which the law wished to be done, though nevertheless it did not command it in express words, is omitted. L. 29, 30, ff. de Legib. Wherefore in order to act in fraud of the law it is necessary that the law at least implicitly command or prohibit that thing. Otherwise one uses his own right. Hence a nobleman acts in fraud of the law who, so as not to fast, occupies himself with servile works; but not at all by drinking wine, although it nourishes in some way, and so that he himself may not suffer hunger.

But as regards the observance itself of the law, it must be noted that what is minimal is reputed as nothing, e.g., if in the recitation of the office, in hearing Mass, some little thing is omitted, if a minor in contracting is slightly injured, etc.; except those things which are defined by nature, or by law, or by the will of man, since in these there is no place for moral estimation; for example, if a novice emits profession on the penultimate or last day of the sixteenth year of age, he emits no profession. S. Th. 2. 2. q. 66, a. 6, ad 3.

n. 208.

Note: One sins against the law not only by action, namely by commission or omission, by doing or not doing those things which are prohibited or commanded by law, but also by simple desire, without execution of the thing, by simple morose delectation, or voluntary complacency, without desire, or, conversely, by voluntary sadness. Hence he also sins against the law who despises, censures, reproaches those things which are to be done or were to be done; which is the same as despising, censuring, reproaching the law which commands them; or, on the contrary, approves, praises, boasts of those things which are not to be done or were not to be done; whether he himself or another has transgressed the law. Moreover scandal can easily be present by reproach or boasting; since these easily furnish others with an incitement, or delight. Except if someone praises not the evil thing itself, but the new, clever, vigorous manner in which the thing was accomplished: for this is a certain natural good, provided nevertheless that the danger of delight in the evil thing and of scandal is absent. Lugo, de Poenit., d. 16, n. 266, 273; S. Th. 2. 2. q. 186, a. 9, ad 3.

Formal contempt of law, by which someone expressly despises the law, or its author, as he is superior, refusing to be subject to his ordinance, is always, speaking in itself, mortal. For it is contempt of authority. Hence it is not grave: 1. If the thing itself commanded is despised, insofar as it is made little account of. 2. If the superior is despised, not as superior, but insofar as he is a contemptible individual person, because, for example, he is imprudent, base, idiotic, rude, unlearned. Nevertheless this would still be mortal, if such a judgment, which is thus formed about that person, were gravely rash, as is clear. 3. If the act by which the precept, or the superior, is despised is not perfect by reason of advertence and deliberation, as often happens. Hence Lessius, Sanchez, etc. say that mortal sin by reason of contempt rarely occurs. But material contempt, by which someone violates the law in order to indulge his passions, is mortal or venial according to the measure of the matter. L. 142; S. Th. l. c.

n. 209.

Does every law forbid one to expose oneself to an occasion of transgressing it? - A law which commands or prohibits something also implicitly commands one to avoid proximate occasions, and prohibits one from exposing oneself to proximate occasions of transgressing the law. The reason is that otherwise the law would already be altogether frustrated. For if it does not oblige to the means, neither does it oblige to the end. - Wherefore, one who seeks these occasions, or voluntarily exposes himself to them, or remains in them, with no excusing cause, sins against the law and the virtue with which the matter is concerned: against faith, chastity, piety, etc.; and besides he sins against charity toward himself by reason of the spiritual harm to himself which he voluntarily undergoes.

Now, in the present matter, an occasion is called whatever externally offers us danger of transgressing the law. Externally, because the very frailty of nature, interior passions, and intrinsic habits, although they bring danger with them, do not constitute an occasion at all. Danger extends more broadly than occasion, and is whatever can induce us to sin, whether it is from without or from within. Danger is much graver when the occasion is present or in being, than when absent or not in being, as if a woman is at home, or outside. Of transgressing the law, and thus of consenting to sin, and not of mere temptation. Moreover a proximate occasion is that in which a man placed there, for the most part, sins, whether this is verified with respect to all who are found in the same circumstances, from the nature itself of the thing, or is verified only with respect to such a person, given attention to his peculiar circumstances. But an occasion is remote if a man placed in it for the most part does not sin; and we are not bound to avoid this, since the thing would be impossible. Between proximate and remote occasion various degrees are given, as is clear. For the danger of sinning can be morally certain and probable, more or less probable. For the most part; and thus in the former there is moral certainty of sinning; in the latter no solid probability of sinning.

If the proximate occasion is simply necessary, that is, one which cannot be removed, one must make it remote, by employing suitable means: prayer, frequenting of the sacraments, custody of the senses, etc. But if it is morally necessary, i.e., one which cannot be taken away without grave detriment, it is not illicit to be engaged in it from a just and proportionate cause; provided nevertheless that consent to sin is not morally certainly foreseen. This can easily be removed by fortifying oneself with custody of the senses, prayers, pious works, and by trusting in the greater help of God. Thus the occasion becomes remote from proximate. Morally certainly; what if only probably? And if consent is probably foreseen, it is illicit; for sin must certainly be avoided, as eternal damnation must certainly be avoided. There are not lacking those who, in the case, do not acknowledge a grave obligation, because, with moral certainty of sinning removed, he does not choose sin. But this is nothing; for since the will then chooses at least probable formal sin, the will is at least equally disposed toward either, and thus evil and gravely sinful. L. 1. 5. n. 63; l. 6. n. 452-456.

n. 210.

Does law extend itself to past acts? R. Negatively as to guilt. For guilt and sin could not be had where there was no law. - R. Likewise negatively as to penalty. For penalty has no place where there is no sin; because it is for the vindication of sin.

R. Equally negatively as to the value of a past act. For an act which was valid cannot be made invalid for that same time, although it can be declared invalid for the future. - R. Negatively also as to the effects of that act, speaking in itself and commonly, and likewise as to the past time. The reason is that a great disturbance of society would follow from this. Speaking in itself and commonly, because in a particular case, in which this would not be harmful, but, on the contrary, very useful, the legislator can touch such effects, if they are subject to his power, as, e.g., when a dispensation is given for an invalid marriage on account of a diriment impediment, which is called a dispensation in the root. For the offspring is held legitimate and succeeds to the inheritance, just as if it had always been legitimate. And likewise as to that same past time: for there is no difficulty that the legislator, for a past act, and even for a past delict, can introduce, for the future time, a certain inability, e.g., for receiving orders, for contracting marriage, etc.; and this indeed will not be a penalty of sin, but a mere privation on account of the defect of a required condition. C. Cognoscentes 2; C. Quoniam ult. de Const.; Clem. Dispendiosam 2 de Iudiciis; Clem. Ex frequentibus 1 § ult. de Sent. exc.; L. 7 de Legib., 1 C.; C. I. Disp. etc. at the beginning of a. 2; C. H. 3; Suarez, de Legib., l. 3, c. 14.

n. 211.

Does law also forbid one to become for another the author of transgressing it? - If someone is the cause why another transgresses the law, he sins against the same law and virtue, e.g., against religion, justice, chastity, etc. The reason is that what someone does through another is considered to be done by himself. Wherefore, as the executor himself, so he who compels, he who commands, he who counsels transgression of the law, becomes guilty of the transgression of the law.

But if someone is only an occasion to another of transgressing the law, e.g., by his example, and directly intends this, he likewise sins against the same law and the same virtue; since every law also commands this, that no one should wish it to be violated either by himself or by another. Directly intends; for if he only foresees it, whether even then someone acts against the same law and virtue is disputed. Some affirm it, because in reality and in fact he induces another to transgress the law, and is the cause of this transgression, although a cause per accidens. Others more probably deny it, because, if someone is bound to abstain from his own work lest another sin, this pertains only to charity, and thus he indeed sins against charity, but not also against that law and virtue which that law touches. - Cf. 424.

n. 212.

Does law also forbid one to cooperate with another in the transgression of the same law? - The matter is evident, that if it is not licit to be a cause to another of transgressing the law, much more is it illicit to be a cooperator with another in the aforesaid transgression of the law. Cooperation is to work together, wherefore it has no place except in an exterior transgression only of the law, which consequently consists of the intention of sinning and the very work of sin.

To cooperate in both constitutes formal cooperation, and this is altogether illicit, just as it is illicit to will to act and to act against the law. To cooperate only in the exterior work furnishes merely material cooperation. If this is furnished by an evil work, it is evil, e.g., if someone cooperates with a thief by breaking open doors. If it is furnished by a good work, or at least by an indifferent one, it is licit, unless it is prohibited either by office or by charity. By office, e.g., of father, judge, minister of the sacraments, etc. By charity, namely, for impeding the sin of one's neighbor, if it can be done. For if the other, without the cooperation of another, is still going to complete the sin, there can be no obligation to abstain from that cooperation, since it truly has no influence on the sin of the other, and can scarcely be called cooperation. But with the debt of office and charity set aside, since someone, by that material cooperation, sins neither by intention nor by work, there is indeed no reason from which its malice can be perceived. Wherefore then it makes no difference whether it is remote or proximate. And, speaking more properly, it is permission rather than cooperation. And thus it is licit to contract marriage with one who is in the state of mortal sin, and it is licit for a spouse to render the debt to a spouse bound by a vow of chastity. - Cf. 419.

n. 213.

How is law to be observed, and how is satisfaction made for its obligation? To satisfy the obligation of human law it is required and sufficient: 1. To do the commanded work as to its substance, and to have the intention of doing it. 2. Simply to omit the prohibited work, and not to have a contrary will. And thus someone satisfies the precept of abstaining from servile works if in reality he abstains from them, although he thinks nothing about the precept. Proof of the first part. For a commanding law, in itself and generally, commands only the substance of the act, not also the mode; nevertheless it commands not just any act, but a human act. Proof of the second part. For a law prohibiting something intends nothing more than the omission of the work. Therefore it does not also require intention, as a commanding law does, except in the case in which it commands that something be given, e.g., tithes. For you have satisfied, even though you gave while not in possession of your mind, or another gave for you; since the law does not seem to command more than that external and real action. Yet he who, entirely unaware, omits that which is prohibited by law seems rather not to transgress the law than to observe it. And the same must be said if someone, entirely unaware, does that which the law commands to be done; e.g., if there is a precept in a monastery of observing silence through the whole day, and through the whole day you sleep. S. Th. 1. 2. q. 100, a. 9; Cajetan on this place; Struggl, q. 2, n. 13, 14; Suarez, de Leg., l. 2, c. 10, n. 11-14; l. 3, c. 29; La-Croix, l. 1, n. 115.

Not also the mode; for regularly legislators commanding an act do not also command that the end of the law be intended, because even without this intention of the end, and by the commanded act alone, that end is obtained. Yet natural law also obliges to the mode of virtue, namely, that one do good and for an honorable motive, or on account of the honorableness of that same good. And so human law commands that you render the debt; if you render it, although from an evil intention, you have fulfilled the law. But natural law commands that you render the debt by reason of justice to be preserved. A soldier fights in war against enemies and kills them, but from hatred and on account of private vengeance; he observes human law, but not divine and natural law, which commands this or that as something honorable to be done only by reason of its intrinsic honorableness.

The mode of an act according to St. Thomas, following Aristotle, is threefold: first, that someone act, fulfilling the precept from knowledge of the work; second, that someone act from the will and intention of the good on account of the very honorableness of the act; third, that someone operate firmly and immovably. The first and the second mode are commanded by the natural law, which simply commands good; and good is from an integral cause. Therefore it is not enough to will the good materially, but one must will and intend it. But by positive and human law the first mode is commanded; for even positive human law commands only a human act; laws are given only for human acts, not also for acts of man. Moreover the obligation of law is a certain moral necessity, to which consequently satisfaction cannot properly be made except by a moral fulfillment of the precept. By only material fulfillment of the thing commanded someone does not transgress the law; but it cannot properly be said to be fulfilled. For this formal fulfillment of the law, as is clear, knowledge, will, and freedom are altogether required. And that first mode enters into the very substance of the human act. The second mode, that someone act from the will and intention of the honorableness itself, is regularly not commanded by human law. For as St. Thomas says, 1. 2. q. 100, a. 9: "A precept of law has coercive force; therefore that falls directly under the precept of law to which the law coerces. But the coercion of law is through fear of punishment. For that properly falls under the precept of law for which the penalty of the law is inflicted. But with respect to establishing a penalty, divine law and human law stand differently. For the penalty of law is not inflicted except for those things about which the legislator has to judge; because law punishes from judgment. But man, who is the lawgiver of human law, does not have to judge except about exterior acts." But the third mode is commanded neither by divine law nor by human law. For that firmness pertains to habit; thus by neither law is that mode of virtue commanded which is the end of the precept, namely, to make one virtuous.

Wirceburg., c. 1, a. 7.

n. 214.

Resolves: You satisfy the obligation if you fulfill different precepts by different acts, yet at the same time, provided one precept does not impede another; as to hear Mass and to recite the office at the same time. But you do not satisfy the obligation if you fulfill different precepts by one act, since they fall upon different matter; otherwise, however, if they fall upon the same matter. And so, if you owe Caius one hundred from a loan, and one hundred from a purchase, you do not satisfy by rendering only one hundred, because these two obligations fall upon different matter. But if you owe the same Caius one hundred from theft, which you vow to restore, and to the restoration of which the confessor has obligated you, by rendering only one hundred you satisfy these three obligations, namely of justice, of vow, and of precept, since they regard the same matter; thus also a beneficed subdeacon, by one recitation of the canonical hours, satisfies the double burden of order and benefice, for they fall upon the same matter. - L. 100; Struggl, q. 2, n. 15.

You satisfy the obligation, although you do not have the intention of fulfilling the precept, or of acting from the motive of formal obedience; nor do you have the intention of fulfilling the end of the precept; nor do you act from the motive of charity, or in the state of grace, or you lack faith; unless the very end of the precept, or the act of charity, or the state of grace, or faith itself is commanded. The reason for all these is that law regularly commands only the work to be furnished. And, if at times the law also commands its extrinsic end, e.g., to celebrate Mass for the suffrage of the deceased, he who freely furnishes the thing for this reason, because it is commanded, at least implicitly intends that end also.

You satisfy also, although while intending and doing the commanded work you expressly at the same time intend not to satisfy, e.g., if you hear Mass intending not to satisfy the precept; although, if the Mass is the last one, or if it is not the last and you intend not to hear another, you sin against another precept, by which one is bound to be subject to the legislator. - Finally, you satisfy, although in fulfilling the precept you sin from an extrinsic circumstance, e.g., if while hearing Mass you are occupied with thoughts of vainglory or lust. From an extrinsic circumstance; for, since law commands only honorable things, if the very substance of the act is intrinsically evil, you by no means satisfy the law.

He does not satisfy the obligation who, altogether compelled, drunk, sleeping, fulfills the precept, or with the sole intention of doing something else; e.g., if you read the hours with the sole intention of learning, or go to Mass only so that you may wait for a friend, feed your eyes, converse with another. But if you fulfill the precept from fear, you satisfy; though you would not do it if fear were absent, and you then sin from that perverse will. S. Th. 1. 2. q. 89, a. 5; q. 100, a. 9, ad 2, 10; 2. 2. q. 10, a. 4; L. 162-165; Struggl, q. 2, n. 17; E. M.

n. 215.

Note: He does not satisfy who performs the work of a vow or oath while expressly intending not to satisfy; because it depends upon the will of the promiser that such an obligation remain. But the obligation of obeying law proceeds from the will of the legislator, and therefore is not extended beyond his intention, i.e., beyond the substance of the commanded work. While expressly intending; for even in those things which proceed from one's own will, the one acting would satisfy if he merely negatively did not have the intention of satisfying, for example because, forgetful of the obligation undertaken, provided nevertheless that he does not apply what he does to another thing. For each person, from a general prior intention, intends to satisfy a debt before satisfying those things which he has imposed upon himself by free will. And this holds also concerning sacramental satisfaction, namely if he does the work imposed by the confessor, yet not intending to fulfill the penance. L. 30, 163; l. 3, n. 700.

n. 216.

When does the obligation of law cease? Obligation can cease in three ways: either on the part of the subject, or on the part of the superior, or on the part of the law itself. On the part of the subject it can cease: 1. Simply, through exempting causes, which totally withdraw him from the dominion of the law, for example if someone betakes himself outside the place which the law affects. 2. In a qualified way, through impeding causes, which impede or excuse from its fulfillment a subject remaining under the law. These causes are reduced to invincible ignorance, to fear, and to impotence. Ignorance, if it is invincible, excuses; because no one sins except by a voluntary act, and this presupposes knowledge. But if it is vincible and culpable it does not excuse; such it is when you were able and bound to know or to learn, and it came to mind to doubt, and you did not take pains to understand. L. 168, 170 ff. Cf. here 50, 51. Fear, namely grave fear, often excuses, since from it the observance of the law passes into a grave inconvenience. And so fear of death, e.g., often excuses not only from a positive precept, both human and divine, but sometimes even from an affirmative natural precept. Hence one is not bound, with danger of life, to confess integrally, to preserve a deposit, to fulfill a vow, etc. L. 175. Cf. here 62, 63. Impotence, even moral impotence, excuses. For if the object of the law, considered in itself, is not so difficult and grave, but from particular circumstances becomes such, then there is no longer that obligation which the legislator intends to impose, since that object has been notably changed. And thus David ate the loaves of proposition, prohibited to laymen, when he was in danger of undergoing a grave evil. 1 Reg. 21; Matt. 12, 3, 4. But grave inconvenience and harm must be proportioned to the gravity of the law, so that it may legitimately excuse from it. Since no one is held to the impossible, after someone has become unable to fulfill the law, he is excused, although he sinned in positing the cause; e.g., if someone squandered his goods, and then cannot pay his debts. L. 176. Cf. here 64, 65, 66, 171.

On the part of the superior it can cease: 1. Through dispensation, which is the legitimate relaxation of the law in a particular case. 2. Through privilege, which is a constant and permanent favor granted by a superior against or beyond the common law.

On the part of the law itself the law can also cease. For "it happens many times that something, in the majority of cases, is useful to be observed for the common welfare, yet in some cases is very harmful. Therefore, because the legislator cannot look upon all singular cases, he proposes the law according to those things which happen in the majority of cases, directing his intention to common utility. Hence, if a case arises in which the observance of such a law is harmful to the common welfare, it is not to be observed... But nevertheless this must be observed: that if the observance of the law according to the words does not have a sudden danger which must be met at once, it does not belong to just anyone to interpret what is useful and what is useless to the city; but this belongs only to the Princes, who on account of cases of this sort have authority in the laws to dispense. But if there is a sudden danger, not permitting so much delay that recourse can be had to the superior, necessity itself has a dispensation annexed, because necessity is not subject to law." S. Th. 1. 2. q. 96, a. 6. Cf. here 179.

n. 217.

Is he who is unable for the whole held to the part? If the precept is such that it can or is accustomed conveniently to be divided, and in its part the reason, or end, of the precept is preserved, then he who cannot observe the whole must observe the part which he can. Hence he who cannot read all the hours must say those which he can, because they are divisible. But if the reason of the precept is not preserved in the part, nor can or is this conveniently accustomed to be done, then he who cannot do the whole, that is, so much as may morally be considered the complete precept, is not held to the part. Wherefore one obligated to visit the thresholds of the Apostles at Rome, knowing that he cannot arrive there, is not bound to begin the journey; because neither the end nor the reason of the precept is preserved. All these things are to be estimated: 1. from the intention of the legislator; 2. from the reason, end, and matter of the law; 3. from the judgment of prudent persons; 4. from common usage. L. 176, 177.

n. 218.

Note: If someone unable for the whole is doubtful whether he is able for the part, he is often excused from this also, "as, for example, in the sick, in whom scarcely, or hardly scarcely, can it be determined what they can do, how far they can, and no further. Hence, if while they cannot fulfill the whole law, they were held to the part, there would be place for very grave scruples, and there would be continual perplexity in determining the part to which they would be held. And therefore it is rightly presumed concerning the mind of an equitable legislator that he does not wish in similar cases to oblige to the part: so grave theologians." Billuart, de Leg., diss. 4, a. 7.

n. 219.

Does the obligation cease for which satisfaction has not been made at a determined time? - R. Affirmatively, if the determination of time was made to put an end to the obligation. And thus he who omitted hearing Mass on Sunday is not bound to hear it further on the other days of the week. - R. Negatively, if that determination was made to urge the obligation. Hence he who did not pay a debt on the day established by contract is still held to pay it. When the law is urging here and now, if an impediment is foreseen afterward, satisfaction must be made for it beforehand; and so, if someone could not recite vespers and compline in the evening, he is bound to recite them in the morning; for already in the morning the substance of that precept urges, whence also, even without an evening impediment, he could in the morning from some just cause recite those hours and satisfy the precept.

n. 220.

Is it licit to posit causes exempting from the law? - It is always licit to posit exempting causes, and more probably also directly and proximately. - Causes de-obligating from the law are said to be posited directly when the end of withdrawing himself from the obligation of the law moves the agent; indirectly, if another cause moves him, though an impediment to observing the law has been foreseen.

These causes are proximate or remote, according as the law urges shortly, or after a notable time. Now law, speaking in itself, does not make someone subject to itself, nor make him remain subject, but obliges him who is already subject and remains so to observe itself. Therefore, if by an action otherwise licit you withdraw yourself from its dominion, you use your own right, and do not act in fraud of the law. Speaking in itself, because the law can also command this, that you not go to, e.g., a free place, and escape its force, as in reserved cases, and in clandestinely contracting marriage against the Tridentine law. Clem. X, C. Superna, 21 June 1670; Urban VIII to the Archbishop of Cologne, 1627. Nevertheless after the decree Ne temere on betrothals and marriage, those who, in fraud of the law, betake themselves into a region from which the pastor or Ordinary, or another competent priest, is absent, in order to contract marriage, contract validly. S. C. de Sacram., 12 March 1910. L. 152, 157; Struggl, q. 3, n. 20; Elbel 370-372.

n. 221.

Is it licit to posit causes impeding the observance of law? It is not licit directly to posit impeding causes, whether proximate or remote. Indeed, it is not even licit indirectly to posit proximately impeding causes, unless there is a proportionate necessity. But it is licit, even without reason, indirectly to posit remotely impeding causes. Proof of the first part. For every law implicitly obliges that nothing be done deliberately so that the law may be eluded; or, what is the same, every law prohibits anyone from acting in fraud of that same law; otherwise the law would be almost void as to imposing obligation. L. 29, 30 de Legib.; L. 5 e. t. C.; L. 152; l. 3, n. 1045; S. Th. 4 D. 15, q. 3, a. 4, q. 1, ad 1; Sanch. Con., l. 5, c. 1, d. 7, n. 11. - Proof of the second part.

Because a law proximately urging proximately binds the will to employ the means, from the nature itself of the thing necessary and ordinary, lest the law itself be violated without sufficient reason, and therefore to not throw in impediments. Otherwise the act of the legislator, by which he intends to oblige subjects, is altogether frustrated. S. Th. 2. 2. q. 147, a. 4, ad 3. But the reason for the exception is that on the one side there is a sufficient reason for positing the impediment, and on the other side the non-observance of the law is outside the intention of the agent. - Proof of the third part.

Because neither divine positive law nor human law obliges generally with a very grave inconvenience. But it would be a too grave burden if each person, long before the obligation of the law, were constrained to abandon all works incompatible with that obligation, and to wait for the time of the obligation. This reason, by which the thesis is proved, can be the best norm for judging in doubt whether a cause is only remotely impeding, namely if its omission would bring a grave inconvenience. But here it must be noted generally that not always will the same inconvenience which is truly grave with respect to one precept be such also with respect to every precept, since the gravity of all precepts is not the same. Hence that grave inconvenience must be judged not only absolutely and in itself, but also respectively and in relation to the precept with which the matter is concerned. L. 152; S. Th. 1. 2. q. 152; Ithur., Cas. 32; Sanch. in Dec., l. 1, c. 15, n. 4; Suarez, de Pecc., d. 3, s. 4, n. 10.

n. 222.

Resolves: He sins who on a fast day undertakes labor, although honorable, in order to be excused from the fast; although he, after he is gravely wearied, even with that evil end, is no longer held to the fast. L. 1. 3. n. 1022. But he does not at all sin who on the day before a fast spends the day hunting, foreseeing that through weariness it will not be licit for him to fast. He sins who, without a just cause, on the same feast day or one or another hour before it, begins a journey, foreseeing that he will not be able to hear Mass. But he does not sin if he does this on the preceding day. Gur. Ball. 111; Del Vecchio 161. But St. Alphonsus does not admit this, l. 3, n. 301, denying "that someone can set out on Saturday to hunt in a distant wood, although on Sunday he cannot hear Mass there."

"An excommunicated or interdicted person does not sin by omitting Mass, and likewise an imprisoned person, even if they neglect absolution or liberty, because these persons are not obliged to remove remote impediments," or extrinsic ones. L. 1. 3. n. 825; l. 1, n. 152; l. 7, n. 161. "Otherwise, however, they speak with respect to annual Confession and Communion, since this is one of the divine precepts, with regard to which we are held to remove impediments." L. 161; l. 6, n. 299. Excommunication and interdict, with relation to Confession and Communion, are not extrinsic impediments, but intrinsic, and therefore care must be taken that they be removed. "Tamb. and Viva, however, think that those detained in prison are not held to seek liberty in order that they may communicate." L. 1. 6. n. 299; Ithur., Cas. 3, n. 7.

Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)

Jean-Pierre Gury, S.J.; notes by Antonio Ballerini, S.J. — 40 passages

Vol. I, Treatise On Laws, Part One. On Laws in General, Chapter V. On the Obligation of Law

One must treat 1. of the force of obligation; 2. of the mode of satisfying the obligation; 3. of the causes excusing from it.

Vol. I, Treatise On Laws, Part One. On Laws in General, Ch. V, Article I. On the Force of Obligation

Principles. I. Any law whatever induces true obligation, at least to penalty; for in this law differs from counsel, that the subject cannot put it aside with impunity according to his own pleasure. - Thus all.

II. Any human law whatever can of itself oblige in conscience before God ¹. The reason is that Superiors are constituted by God with the power of commanding. Hence the Apostle, Rom. 13. 12: He who resists the power resists the ordination of God. But they who resist acquire damnation for themselves. - Thus all.

¹ It is said, can oblige, not however, obliges; the reason is that law does not oblige beyond the mind of the legislator; therefore if he intends to oblige under penalty alone, the law per se will not oblige to fault. And indeed the Doctors commonly hand down that this is valid both concerning civil laws and concerning canonical laws. See Reiffenstuel, Canon Law, book I, title 2, no. 199 and following; Laymann, book I, tr. 4, ch. 15, no. 1, etc.

** But whether some law must be considered merely penal, or whether violation of it also brings guilt of conscience, this the Doctors commonly establish must be defined from the mind of the legislator, which is argued both from the matter and words of the law, and from other adjuncts. But what the Salmanticenses (On Laws, ch. 2, no. 45), and after them St. Alphonsus (book 1, no. 147), have as to be held in place of a norm, whether a precept is joined beyond the penalty, must be taken, as Suarez adds with others (On Laws, book 3, ch. 3, no. 6), unless the mind of the legislator is clear from elsewhere, which, as the same Suarez adds (ibid., ch. 4, no. 8), can also be gathered from custom, which is the best interpreter of laws. Much less can it be admitted as a certain rule that laws are merely penal if they display no commanding words; concerning which see Suarez, cited ch. 4, no. 10.

III. Law obliges under grave or under light fault 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 individual moment. - All consent.

IV. Positive divine law, and human law, do not generally oblige with very grave inconvenience, or with grave harm which is per accidens joined to the observation of the law. It is clear from natural and canon law, from the practice of the Church, and from the consent of all.

Questions. - QUESTION 1. Whether a legislator can command under light fault in grave matter, and vice versa?

I answer to the first affirmatively, at least more probably, because obligation depends on his will, just as the law itself does. - Thus commonly. - St. Lig., no. 143.

I answer to the second negatively, because proportion is lacking between grave obligation and light matter. Except if the matter is not light in every respect, but grave from the end, etc. - St. Lig. ibid. and others commonly ².

² ** St. Alphonsus (book 1, no. 141), after he reported the most common doctrine, namely: when the matter is light, the one transgressing does not sin mortally, even if the superior commanded under mortal sin, adds as an exception from the Salmanticenses (tr. 15, ch. 6, from no. 86), that a regular prelate can command under grave obligation that which is commanded by the rule only under light obligation, if it is feared that the rule otherwise will not be observed. But that these things may be rightly understood, it must be observed that the Salmanticenses and the Authors alleged by them dispute concerning rules which indeed by force of the Constitutions of that Order oblige only under light fault, or only under penalty, but at the same time have that matter which is capable of grave obligation, for example, abstinence from flesh meat.

QUESTION 2. What matter of law must be considered grave or light?

I answer. This must be gathered 1. from the words of the law itself; 2. from its object, end, and circumstances; 3. from the gravity of the penalty inflicted; 4. from the interpretation of custom. - But in general matter is grave when the end of the law is altogether of great moment, and the law conduces much to this end, or if it greatly harms it, even if of itself it is something light; otherwise, the matter will be considered light. Thus it is grave for one celebrating Mass if he omits to pour a few little drops of water into the Chalice. But it will not be grave if on a fast day you eat an ounce of bread outside the meal. - St. Lig., no. 144. - Lacroix, no. 663, and others commonly.

QUESTION 3. Whether human law can sometimes impede an obligation, otherwise valid, from being contracted?

I answer affirmatively. The reason is that sometimes the common good requires this; nor does natural law prohibit that, when the common good requires it, conditions be added by which acts otherwise valid are invalidated ³.

³ Thus the Tridentine Synod invalidates clandestine marriages, otherwise valid from merely natural law: so also civil laws invalidate testaments destitute of the prescribed solemnities.

QUESTION 4. Whether a violation of law in a light matter from contempt is grave?

I answer 1. Affirmatively, if the contempt directly affects the legislator formally as such, because the authority itself from which laws obtain force is contemned.

I answer 2. No, if the contempt regards only the matter as light in itself, or if the one sinning transgresses the law from carelessness, anger, or another cause of this kind. The reason is that then the authority itself does not seem to be contemned. - St. Lig., no. 142.

n. 102.

- QUESTION 5. Whether the application of law or a sentence which is founded on a false presumption of fact obliges in conscience?

n. 102.

I answer 1. No, if the application of the law is founded only on the presumption of a particular fact, of fault, of fraud, or of damage; the reason is that if the fact is lacking, by that very fact the whole foundation of the obligation is lacking. Hence if you are condemned to pay money for damages which are falsely thought to have been inflicted by your donkey, you are not obligated to pay, except per accidens, for example by reason of scandal; but then you can compensate yourself even after the sentence has been passed. - St. Lig., nos. 100, 150. - Suarez, Roncaglia, and others commonly.

n. 102.

I answer 2. If the law is founded on the presumption of universal danger, fault, frauds, etc., its application always obliges in conscience, even every fault being excluded; because the common good requires that all be stably obligated; otherwise evils would not be impeded effectively; and the law otherwise intends to prevent the danger of hallucination, and to render men more cautious. Hence you are held to pay the fine to which you are condemned for damage truly inflicted by your animal, even if that damage happened without theological fault on your part. - St. Lig., no. 100. - See the things to be said in the Treatise on Restitution, where it treats of the unjust damager.

Vol. I, Treatise On Laws, Part One. On Laws in General, Ch. V, Article II. On the Mode of Satisfying the Obligation of Law

Principles. - I. For satisfying any obligation whatever, an intention of doing that which is prescribed is required, if the law is affirmative, for example, the law prescribing hearing Mass on a feast day. The reason is that otherwise the act is not placed in a human mode. - By no means, however, if it is negative, as the law prohibiting servile works on feast days. The reason is that a negative law intends no more than omission of the work. - Thus all.

II. Yet there is not required an intention of fulfilling the precept, or of acting from the motive of formal obedience; because the legislator commands only the placing or omission of the work. - St. Lig., no. 163. - Sanchez, and others commonly.

III. It is not required that the law be fulfilled from a motive of charity, nor in the state of grace, unless the act itself of charity, or the state of grace, is prescribed, as in reception of the Eucharist. The reason is that the work is prescribed, not the motive, unless perhaps this too is expressed. It is also clear from proposition 16 of Baius condemned by Pius V, which has itself thus: That is not true obedience to the law which is done without charity.

IV. An intention of fulfilling the end of the precept is not required, unless that end is precisely commanded per se; because ordinarily the legislator does not command the end, nor intend to command it, but only the placing of the act. Hence the axiom: The end of the precept does not fall under the precept. - St. Thomas, 1.2, q. 100, art. 9, etc., and others.

n. 104.

Resolves. - 1. He satisfies who hears Mass, being ignorant that it is prescribed on this day, or who indeed knows the obligation, but intends only here and now to satisfy devotion, with the proposal of hearing another Mass. - St. Lig., no. 163.

n. 104.

But he does not satisfy who places the work of a vow or oath while expressly intending not to satisfy; the reason is that it depends on the will of the one promising that such an obligation remains. - St. Lig. ibid.

n. 104.

He who is altogether coerced to be present at Mass does not satisfy; for such an act, because of a defect of will, is not human ¹. It is otherwise if someone is induced by fear only, as for example a servant by fear of the master, a boy by fear of the teacher, etc.

¹ Say rather that this man, unless perhaps the attention otherwise required is lacking, which the Author seems to suppose, satisfies the precept as to the substance of the work, but sins because of the evil contrary will. The same could be said also of him who is present at Mass from fear, when he has been disposed in soul in such a way that, unless he were compelled by fear, he would not wish to be present.

Questions. - QUESTION 1. Whether he who sins in fulfilling the obligation of a law satisfies it?

I answer affirmatively, provided that the act is honest in itself, and evil only from an extrinsic circumstance, so that the substance of the thing prescribed is placed. The reason is that the precept commands only the substance of the act, not however the mode. Hence he satisfies who, while hearing Mass, is occupied with thoughts of vainglory or lust, or who while hearing Mass has the intention of stealing. Yet the precept of confession or communion is not satisfied by sacrilegious confession or communion, because then the very substance of the act is infected by sin. It is also clear from proposition 14 condemned by Alexander VII. - St. Lig., no. 162, and others commonly against a few.

QUESTION 2. Whether diverse precepts can be fulfilled by one act?

I answer affirmatively, if these diverse precepts fall on the same matter and on account of the same motive, as the fast of a vigil falling in the Ember Days; but otherwise, if they fall on diverse matter, or indeed on the same matter but on account of a diverse motive, as a fast owed from penance and from ecclesiastical law. - St. Lig., no. 166.

- QUESTION 3. Whether diverse precepts can be fulfilled at the same time by diverse acts?

I answer affirmatively, if those acts are able to be joined, that is, if one does not impede the other; because then the whole is placed which is required. Thus while hearing Mass you can recite the canonical Hours, or discharge an enjoined penance, etc. - St. Lig., no. 166, and others commonly.

QUESTION 4. What must be done in the concurrence of two precepts unable to be joined?

I answer. The greater must be observed before the lesser, which then ceases to oblige. But a natural precept prevails over a merely positive precept, a divine precept prevails over a human one, an ecclesiastical over a civil one, etc.

QUESTION 5. Whether an obligation ceases when it has not been satisfied at a determinate time?

I answer 1. Affirmatively, if the determination of time was made for ending the obligation. Thus for example, if you did not fast on the day of the vigil, you sinned, but you are freed from the law; because the burden is affixed to the day itself.

I answer 2. No, if the time was not determined except for soliciting or urging the obligation. Thus he who did not satisfy the law in paschal time is not freed from the obligation of communicating. - St. Lig., book 3, no. 220.

Resolves. - 1. If you owe 100 coins to Titius, and you vow to restore, by one act you satisfy two obligations, namely of justice and of vow. Likewise a beneficed Priest vowing faithfully to recite the Hours satisfies a threefold obligation by one recitation.

On the contrary, if you owe Caius 100 francs from a loan, 100 from a census, you do not satisfy by paying 100 once, because the obligations fall on diverse matter. Similarly, if from a vow and from penance imposed by the Confessor you are held to hear Mass, you do not satisfy each obligation if you are present at one Mass on Sunday ². - Voit, no. 202. - St. Lig., no. 166.

² Except unless the Confessor enjoins a work otherwise prescribed; which indeed can be done for a twofold reason: either 1. namely because scarcely another mode is available by which the penitent can offer some congruous satisfaction; whence the Confessor, that he may supply however he can, imposes even the Mass to be heard on a feast day from precept, and the paschal Communion itself, as part of sacramental satisfaction; or 2. because the penitent desires that this means also be available to him for satisfying more abundantly.

Nor can you hear several Masses imposed on you by the Confessor at the same time, while they are being celebrated at the same time on several altars; because such an intention of the Confessor is not to be presumed, unless the Confessor had regard to the fruit of the Sacrifice. - St. Lig., Apostolic Man, on Penance, no. 57.

He who is held to hear Mass on individual days from penance for one month satisfies by hearing one on Sunday ³; because it is reasonably presumed that the Confessor was unwilling to obligate the penitent to hearing two Masses on the same day, unless he expressed this. - Thus commonly. - St. Lig., Apostolic Man, no. 34. - See Cases, no. 99 and following.

³ Say the same of him who has bound himself by vow to hearing Mass daily, or to observing a fast on certain fixed days, unless he has expressly obligated himself either to hearing two Masses on feast days, or to transferring the fast to another day if perhaps another precept of fasting falls on the predetermined day.

Tanquerey

Adolphe Tanquerey, S.S. — 8 passages

Vol. II, Fundamental Moral Theology…, On Laws

n. 274.

1. It depends on the gravity of the matter, insofar as the legislator cannot impose under grave obligation except grave matter. For it is not consonant with reason that matter, light under every respect, be commanded under penalty of mortal sin; otherwise sins would be multiplied, and the law would turn to the detriment, rather than to the good, of subjects.

But for judging concerning the gravity of the matter, attention must be given not only to the nature of the thing, but also to the end and other adjuncts. (a) When the end to be attained is of great importance and morally necessary, and moreover the action commanded greatly conduces to obtaining this end, the matter is judged grave; thus the public service of God, the dignity of worship, the holiness of the clergy, etc., are certainly something of great importance, and moreover the observance of feasts, abstinence, fasting, observance of celibacy, and recitation of the breviary greatly conduce to pursuing those ends; therefore all these things can be commanded under grave obligation. (b) When the intended end is not of great importance, or when the action does not greatly conduce to the end, otherwise of great importance, the matter is judged light; thus a law commanding that the various parts of the breviary be recited at certain times of the day, although ordered to the glorification of God and the sanctification of priests, does not conduce greatly to obtaining that end, since God is glorified and priests are sanctified even if the breviary is recited at other times of the same day; therefore this matter is light.

n. 275.

1. It depends also on the will of the legislator: for he, sometimes at least, can command under light obligation a thing grave of itself, for example fasting; for, even when there is question of an end of great importance and of a means very useful for attaining such an end, the legislator can foresee that a precept imposed under grave obligation will be the occasion of manifold spiritual ruin, and therefore prescribe the thing only under light obligation.

But for discerning what the intention of the legislator was, these things especially are to be weighed: (a) the very words of the law, which imply grave obligation when it is said: we command severely, strictly, in virtue of obedience, under threat of divine judgment, etc.; (b) the penalties inflicted or to be inflicted upon transgressors; for a grave penalty, such as excommunication, suspension, interdict, etc., implies grave obligation; (c) the interpretation of doctors and the sense of pious faithful.

n. 276.

Corollary. Since law is obligatory, by that very fact the means truly necessary for observing the law are obligatory: for he who sincerely wills to attain the end, logically and consequently wills the means necessary to the end.

Hence (a) subjects ought to apply ordinary diligence to knowing the law: for the law cannot be observed unless it is known.

(b) Likewise they ought to furnish those things which are proximately necessary for the observation of the law; thus he who is bound to recite the divine office ought to obtain and keep a breviary; he who is bound by the law of fasting ought to buy fasting foods at a suitable time.

(c) Moreover they ought to remove or forestall impediments which render observance of the law impossible, provided that this can be done without grave inconvenience; thus he who knows that he cannot fast when he hunts ought to abstain from hunting on a fast day.

n. 288.

2. Conclusions Concerning the Obligation of Laws in Certain Cases.

State of the question. General laws, enacted by the Roman Pontiff or by ecumenical Councils, indeed oblige all the baptized, as we have said; but particular laws enacted by bishops and provincial councils are presumed territorial; therefore the question arises who are held by these laws. Now in relation to territory, there are distinguished inhabitants, newcomers, pilgrims, travelers, vagi, and exempt persons.¹

¹ Code, c. 91: "A person is called: an inhabitant, in the place where he has domicile; a newcomer, in the place where he has quasi-domicile; a pilgrim, if he is staying outside the domicile and quasi-domicile which he still retains; a vagus if he has domicile or quasi-domicile nowhere."

(a) Inhabitants of some place are called those who have their domicile there. Now from the Code, c. 92, § 1, "Domicile is acquired by residence in some parish or quasi-parish, or at least in a diocese, vicariate apostolic, prefecture apostolic; which residence is either joined with the intention of remaining there perpetually, if nothing calls one away from it, or has been protracted to a completed decade." It is lost as soon as these two things concur at the same time: actual departure from the place, and the intention of not returning.

(b) Newcomers are those who have a quasi-domicile somewhere. Now quasi-domicile is acquired "by residence as above, which is either joined with the intention of remaining there at least for the greater part of a year, if nothing calls one away from it, or is in fact protracted to the greater part of a year."² But it is lost if these two things concur at the same time: actual departure and the intention of not returning.

² According to the Canonists, six months are judged to be the greater part of a year.

(c) Pilgrims are called those who reside in some place for a short time, while retaining their domicile or quasi-domicile elsewhere.

(d) Vagi are those who nowhere have a domicile or quasi-domicile, either because the intention of remaining in a certain place is lacking to them, or because, having left their domicile, they are seeking where they may establish a seat.

(e) Finally, exempt persons are those who, by a fiction of law, are placed outside the territory of any diocese, are exempted from the jurisdiction of bishops, and are immediately subject to the Roman Pontiff.

n. 289.

(A) Concerning inhabitants and newcomers. Inhabitants and newcomers are bound by the laws of the territory when they actually live in it. The matter was formerly doubtful concerning newcomers; but today, from the practice of the Holy See, it has become certain: for those who have quasi-domicile in some place are subject to the pastor of this place, and therefore to the bishop of the diocese.

n. 290.

(B) Concerning pilgrims. Pilgrims, according to the Code, c. 14, "are not bound by the particular laws of their own territory as long as they are absent from it,¹ unless either the transgression of them harms in their own territory, or the laws are personal; nor by the laws of the territory in which they are staying, excepting those which provide for public order, or determine the solemnities of acts; but they are held by general laws, even if these are not in force in their own territory, but not at all if they do not oblige in the place in which they are staying." Whence: -

¹ This holds even when they leave their own diocese in fraud of the law, that is, with the very purpose of evading the law; for in so acting they use their own right, namely the right of departing from the place where a special law is in force. Yet the two cases set forth in the Treatise on Penance, n. 353, and on Marriage, n. 410, are excepted.

(a) Pilgrims are not held by common laws which are in force in their own diocese - from which they are absent - but are not in force in the place where they are sojourning. For, by entering another diocese, they enjoy the privileges of the place in which they are staying; thus those who, during Lent, are sojourning in the United States of America, enjoy the privilege granted there of eating meat on all days, except Wednesday and Friday, even if that privilege is not had in their own diocese.

(b) But pilgrims are held by common laws which are in force in the place where they are staying, even if they do not oblige in their own diocese. Thus French and Americans, staying at Rome during Holy Week, ought to fast according to the Roman or strict manner, even if in their own regions the common law has been mitigated by custom or indult; for the common law is in force where they live, and moreover they cannot enjoy the local privilege of the diocese from which they are absent, from what has already been said.

(c) Pilgrims are certainly held to observe certain special laws of the places where they are staying, namely those which regard the validity of contracts, - or have been enacted for the common security of the place and public order, - or specially regard pilgrims.¹ - As to other laws, today, from the Code, pilgrims are not strictly held to observe them, outside the case of scandal; for laws oblige only subjects; but pilgrims, who have neither domicile nor quasi-domicile in the place where they are sojourning, are not truly subjects of that diocese. Thus those who pass through a place where a special fast has been prescribed are not held to fast. Indeed, if a special law is in force in the diocese of the pilgrim and in the place where he is living, he is not strictly held to observe it: not by reason of the precept of his own diocese, because he is outside it, nor by reason of the precept of the diocese in which he is living, because he is not a subject of the legislator. - But, from a certain equity and decency, it is altogether expedient that he observe it.

¹ Thus pilgrims are held by the reservations of places (A. A. S., 1 Dec. 1920).

n. 291.

(C) Concerning vagi, it was formerly controverted; not a few said that they are held to the laws of the place in which they are staying; but others held that they probably are not held except to the universal laws of the Church, and to those local laws which bind pilgrims. But today, from the Code, c. 14, "vagi are obliged by both general and particular laws which are in force in the place in which they are staying."

n. 292.

(D) Exempt persons per se are not held by the laws of the diocese within whose boundaries they have their houses: for they are called exempt for this reason, that they are withdrawn from the jurisdiction of bishops. - It is said per se, because they can be held per accidens, as often as this is necessary to avoid scandal or to procure the public good; or if they have received pastoral care: for then they are held by certain laws, not as Regulars, but as pastors.²

² Cf. Leo XIII, Constit. Romanos Pontifices; C. Plen. Baltimorense III, n. 85-99.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 4 passages

Vol. I, Pt. I, Tr. III, Ch. III, Article V. On the Obligation of Human Law

n. 205.

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).

n. 206.

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.

n. 207.

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."

n. 208.

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.

Marc, Institutiones Morales

Clement Marc, C.SS.R. — 54 passages

Vol. I, Part First: On the First P…, Tr. II, Diss. II, Chapter IV: On the Obligation of Law

St. Thomas, 1.2, q. 96; St. Alphonsus, I, 140; ed. G., I, p. 124; Suarez, l. 4, c. 17-20; Elbel, I, 292; Aertnys, I, 140; Genicot-Salsmans, I, n. 106.

n. ¶175.

After the treatment of those things which regard the institution, promulgation, and interpretation of law, one must treat of the very effect of law, or of the obligation of law. Three things here come to be investigated: 1. what kind of obligation law induces; 2. who are subjected to the obligation of law; 3. how this obligation is to be satisfied.

Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. IV, Article I: What Kind of Obligation Law Induces

We shall treat: 1. of the obligation of law in general; 2. of the obligation of penal law; 3. of the obligation of invalidating law; 4. of the obligation of law founded on presumption.

Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. IV, Art. I, § 1. On the Obligation of Law in General

n. ¶176.

DEFINITION. The obligation of law can be defined: "A moral necessity binding to the placing or omission of an act, so that moral evil, that is, sin, or at least penalty, may be avoided" (cf. n. 109).

DIVISION. The obligation of law is direct, or per se, and indirect, or by consequence. Direct obligation tends to those things alone which are indicated in the law. Indirect obligation comprehends: means to the law, and these easy and ordinary, and the removal of impediments; for example, to avoid dangers, not to induce others to violating the law, etc.

Concerning these latter things there will be discourse in their own place; here only concerning direct obligation.

n. ¶177.

PRINCIPLES. I. Any law whatever obliges in conscience to something. This is of faith as to ecclesiastical laws, as is evident from Trent, Sess. VII, on Baptism, Canon 8: "If anyone shall say that the baptized are free from all the precepts of holy Church... let him be anathema." But as to civil laws, it is altogether certain from what was said above n. 148.

It is said 1. Law, that is, every true precept of the legislator, but not a mere counsel, exhortation, or admonition of the legislator, of which sort there are not a few improperly so-called laws in canon law, as St. Alphonsus notes, VI, n. 518; ed. G., III, p. 529-530.

Any law whatever, whether it is merely penal or invalidating, since even these laws oblige to something in conscience.

A merely penal law obliges one to undergo the penalty if it is imposed on the delinquent; and it obliges the judge to impose it as it is determined by law. An invalidating law similarly obliges to something, namely at least to this, that someone not defend an invalid act as valid.

Obliges. The reason is that every law essentially supposes in the legislator the right of prescribing and the will of obliging. But natural and divine right dictate that obedience must be given to such a legislator.

Nor is it required, in order that it oblige in conscience, that the legislator expressly intend obligation in conscience; but it suffices that he intend truly to command, since this obligation in conscience necessarily follows from command (Bouquillon, Theol. fund., n. 133 and 223).

Obliges to something, that is, either to an act absolutely, whether to be placed or omitted; or disjunctively to the act or penalty; or to both at the same time; or only to a certain mode of acting, so that the act may obtain value and firmness. In the first case, the law is called purely moral or preceptive; in the second, purely penal law; in the third, mixed law; in the fourth, invalidating law.

Note. Since these things have force for any law whatever, by no means must credence be given to those who affirm that modern legislators do not bind conscience. In many things indeed they recede from God, and publicly protest that they are ignorant of God and conscience. Yet from this manner of speaking do not infer that such legislators, in those things which are truly useful and necessary for the common good, regard good morals or the mutual rights of citizens, do not bind conscience. Cf. Konings, c. 3, a. 1, n. 178.

n. ¶178.

II. Human law obliges under light matter in light matter; but under grave matter in grave matter; unless from the circumstances of things, there is evidence that the mind of the legislator was different. The reason is that the gravity of obligation depends primarily on the very matter of the law, so that for grave obligation grave matter is always required; for grave obligation in matter altogether light would be unto destruction, not unto edification; and therefore it would be opposed to that property of law which prescribes that law be conducive to the common good.

It was said: unless there is evidence that the mind of the legislator was different; for the gravity of obligation, according to the more probable opinion, depends secondarily on the will of the legislator. For just as he could in no way oblige, by not prescribing, so he can oblige under venial matter only, even in a grave matter. And this is sometimes expedient (I, n. 143; H. Ap., II, 14).

n. ¶179.

From these things you resolve: 1. "When the matter is altogether light, the one transgressing does not sin mortally, even if the Superior has prescribed under mortal sin, ... for example, that no one break silence, that no one eat a grape, that he close the door, etc.; because it is a small matter and incapable of so great an obligation. Nor does God himself, in small matter, oblige under mortal sin" (I, 141).

It would be otherwise if the matter otherwise light became grave by reason of circumstances, for example, of scandal, of a great common good, or of the end intended by the legislator. Thus abstinence from an apple in paradise, although small in itself, was nevertheless most grave from the circumstance of the end; thus the pouring of water into the chalice at the Offertory is reputed so grave that no excusing cause is given (Noldin, III, n. 109).
Contempt, if it is truly formal, namely if someone contemns the law as law, the Superior as Superior, "in any matter whatever is always a mortal sin" (I, 142). Except if someone contemns the thing prescribed, because it is esteemed little, or the Superior, because he is indignant against him. For then, of itself, grave sin is not present by reason of contempt; but it can be present by reason of great anger or rash judgment. But frequency of transgressions does not necessarily involve contempt of the law, says St. Alphonsus, IV, n. 161; ed. G., II, p. 588, citing St. Thomas (2.2, q. 186, a. 9, ad 3).

n. ¶180.

IT IS ASKED. How can it be known that a law obliges under mortal sin?

Resp. The chief signs from which it can be known are the following: 1. If the matter is grave, and there is no evidence to the contrary concerning the will of the one prescribing. 2. If the precept is expressed in words having great force, for example: we prescribe under grave matter, under the indignation of God, in virtue of holy obedience, from all power, altogether, inviolably, and similar words. Simply imperative words: we will, we prescribe, do, abstain, and others of that kind, are ambiguous; wherefore from circumstances one must argue whether they impose a grave or light obligation. 3. If a grave penalty is added to an ecclesiastical precept, for example, the penalty of perpetual exile, excommunication, irregularity, ecclesiastical interdict, total suspension, or suspension from office or benefice for a notable time, for example, for a year. This nevertheless is understood if the censures are latae sententiae; otherwise if they are ferendae sententiae, according to the more probable opinion, or also if the law is merely penal (cf. n. 182 and 1263). 4. If use and custom among the skilled and timorous thus bear; because custom is the best interpreter of laws (cf. n. 337). This especially has place as to rubrics and fast. Cf. I, 144-146; VII, 33; H. Ap., II, 15.

Sometimes, however, although the Superior brings forth grave threats, it does not always follow from this that the matter about which it is treated obliges under grave matter: for example, only under light matter is there an obligation of not receiving tonsure unless confirmation has preceded, and nevertheless the Sacred Congregation of the Council severely prohibits that such a one, not rightly promoted, ascend to other things, etc. Cf. n. 1919.

Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. IV, Art. I, § 2. On the Obligation of Penal Law

Cf. St. Alphonsus, I, n. 145 ff.; ed. G., I, p. 126; Salmant., tr. 11 de Leg., c. 2, n. 53; Suarez, l. 5, c. 4; D'Annibale, I, n. 207; Lehmkuhl, I, n. 310; Noldin, I, n. 160; Biederlack, Zeitschrift fur kath. Theol., 1899, p. 155 ff.; V. Gestel, de Just., p. 140.

n. ¶181.

DEFINITION. Penal law is that which establishes a penalty against delinquents without prescribing that something be done or omitted.

Therefore it is that law which directly imposes no obligation of doing this or that; yet he who is found delinquent can be punished, and if he is punished by legitimate authority, he must in conscience undergo the penalty as justly imposed; indeed, after sentence, he must execute by himself the imposed penalty, or at least not positively oppose it, if it were too harsh (cf. n. 2311). Therefore from the transgression of penal law there arises a merely juridical fault; from the repudiation of the penalty, a moral fault.

The penalties which can be incurred are manifold: 1. By reason of the thing which constitutes the penalty, there is given a) a positive penalty, which consists in fact, that is, which is completed by the work either of the delinquent, and is called active; or of another, in which case it is named passive, such as confiscation of goods, exile, etc. (I, 148; H. Ap., II, 24); b) a privative penalty, which consists in right, whether it deprives of some right sought or acquired, for example, office, benefice, right of patronage, jurisdiction, etc., or takes away the right or canonical or natural capacity of doing, acquiring, contracting, etc., in which case the penalty is accustomed to be called incapacitating. 2. By reason of origin, there is given a conventional penalty, which, when something, for example, an office or benefice, is given to someone under at least the tacit condition that he do something, but this has not been performed, takes away what was given, as if the condition had not been fulfilled. "Thus, for example, a beneficed cleric not wearing the habit is deprived by the very fact of the privilege of the forum" (I, 149). But such a penalty is either reduced to incapacity, or induces the nature of a pact. 3. By reason of application, there is had a penalty latae sententiae, which is inflicted by the law by the very fact of the admitted fault; and ferendae sententiae, which is established to be inflicted on the guilty by a judge (VII, 6). That judge, who is not the legislator, cannot of himself lessen this at will, unless he has received power also for this (cf. Salmant., de Leg., c. 2, n. 72 ff.). He would sin against distributive justice, and if he increased the penalty, against commutative justice, as is clear.

DIVISION. Penal law is either merely penal or mixed.

Merely penal is that which we defined above. Mixed prescribes or prohibits something, and at the same time decrees a penalty for transgressors. Therefore mixed penal law superadds to the obligation of accepting the penalty a true obligation of doing the thing, or a strict prohibition of omitting the thing, both of which seriously bind conscience (I, 145, 147).

n. ¶182.

PRINCIPLES. I. Nothing prevents merely penal laws from being established. The legislator indeed must promote the common good, and in this consists the strength and tendency of law, that acts which are necessary for the common good be placed, but those which would bring harm to the republic be omitted. Yet from these things it does not follow that the legislator necessarily

and always ought directly to prescribe or prohibit, so that conscience is immediately bound. It suffices that those acts conducing to the common good, considered generally, with the added penalty to be undergone, are sufficiently placed in security, and that the common good is promoted in a general way.

Moreover, it is not of the essence of law that it oblige in conscience to the act; it suffices that in conscience it oblige one to accept the penalty, if it is imposed. And if it is objected that every penalty supposes fault, it is pleasing to answer that every penalty supposes at least juridical fault, according to that saying of St. Thomas (2.2, q. 108, a. 4): Sometimes someone is punished without fault, yet not without cause.

n. ¶183.

II. There are given, in both rights, merely penal laws, and there are given also mixed laws; the former oblige only under penalty, the latter under penalty and under fault.

We are not speaking of natural law, which always obliges in conscience, since it concerns things necessary and intrinsically good or evil.

THE FIRST PART IS PROVED: a) In ecclesiastical right merely penal laws are very rarely found; because ecclesiastical laws intend to procure the common good rather through the sanctification of private persons and the firmness of discipline; whence they directly touch conscience.

Nevertheless, in certain Orders there are given rules and constitutions whose mandates are merely penal, which will be clear from the context or from the constant usage of Superiors. Yet from these things do not infer that all things which are noted in rules are merely penal. For it is evident that ordinances which are referred to vows or evangelical precepts, for example, concerning charity to be fostered, are mixed laws which oblige religious in conscience.

To the rules of religious Orders are referred the constitutions by which seminaries or other colleges are governed. Likewise the statutes of confraternities or pious congregations.

b) As regards civil right, the opinion of some, as being too general, having been rejected, we say that many merely penal laws are given there, for example, laws which impose the payment of indirect taxes, govern hunting, fishing, the cutting of wood, entry into military service; and in general all ordinances whose end can sufficiently be obtained on account of fear of the penalty (cf. n. 879, 904).

Nevertheless, all civil laws which confirm natural or divine law are necessarily mixed, such as laws concerning the sanctification of the Lord's day, concerning contracts, and concerning public offices; laws by which certain rights are attributed to certain persons, for example, to authors in relation to works invented by their own genius (cf. n. 855).

THE SECOND PART IS PROVED: The very definition clearly supports this our affirmation. For it is evident that all things depend on the Legislator, who, just as he can bind even in grave matters only under venial sin, so at his pleasure will be able to prescribe certain things only under penalty, or under fault and penalty (I, 147; H. Ap., II, 16).

From this, however, it does not follow that the transgressor of a mixed law is always, by the fact itself, obliged to undergo the penalty (see n. 184).

HOW, HOWEVER, WILL YOU KNOW THAT LAWS ARE MERELY PENAL?

Resp. 1. From the very words of the law, for example, if it is expressed disjunctively: Do this, or pay this; likewise, if an act is prohibited in this way: He who shall have done this, let him pay the penalty; provided, however, that the nature of the penalty inflicted does not suppose fault, as in excommunication, nor does the good of the republic demand an obligation in conscience. 2. From the declaration of the legislator,¹ namely if he says that he does not will, or did not will, to oblige consciences. 3. From the object of the law, which sufficiently intimates that the ordinance of the superior intends rather an external polity, for example, statutes of pious congregations. 4. From introduced custom; for just as the obligation of law can cease totally, so also it can cease partially, as to the obligation of conscience, when common usage, and especially the usage of the timorous, has been considered. "Hence laws of towns prohibiting under penalty the cutting of wood or herbs, fishing, hunting, do not oblige under fault; for thus custom holds" (I, 145). St. Alphonsus, with the common opinion, thinks the same concerning civil laws which prohibit games of chance and other games (H. Ap., X, n. 217). The timorous think the same concerning laws in which an exorbitant penalty is indicated as to be undergone for delicts not so grave in themselves; for there must be proportion between fault and penalty (III, 616). Cf. Bucceroni, n. 228.

n. ¶184.

IT IS ASKED. What are the obligations of him who ought to undergo a penalty?

Resp. A distinction must be made: 1. If the penalty is ferendae sententiae, he is held to nothing before the sentence of the judge, who will promulgate the mandates of the prince.

If the penalty is latae sententiae, a subdistinction must be made: a) A merely privative penalty, for example, irregularity, excommunication, privation of the right of making one's own fruits one's own, privation of the privileges of the forum, will immediately press upon the guilty person, as the usage of the Church explains, and binds him.

b) A positive penalty, or one to be equated with it, for example, privation of a possessed benefice, of active and passive voice, deposition from office, will hold the guilty person only after a penal sentence, or a sentence declaratory of the crime. The reason for these things is: it is indeed fitting that the Church, through penalties latae sententiae, can keep her own from hidden delicts; but these penalties ought not to be too arduous. A merely privative penalty, which requires no action of the delinquent upon himself, certainly is not judged too arduous; but a positive penalty is reputed too arduous. Hence, if the matter concerns a positive penalty, although the law, in set words, declares that "the penalty is incurred by the fact itself, and without awaiting any declaration of a judge," this must be understood of the declaration of the penalty, but not of the sentence declaratory of the crime, which, even in this case, is necessary so that the penalty can be applied to the guilty person. "This is confirmed from chapter Secundum, de haereticis, in the Sixth, where heretics, although they are deprived by the law itself of their goods, nevertheless are not bound to hand over the goods before sentence, as is contained in the same text" (I, 148; H. Ap., II, n. 25). Cf. also what the Holy Doctor has, III, n. 665; ed. G., II, p. 140; Conf. dir., II, 7; Vecchiotti, l. 3, § 65.

c) If the penalty is conventional, for example, between architects and possessors of houses, a twofold opinion is given. One says that the obligation of undergoing the penalty stands before sentence, because thus all things were ordered from the beginning. The other wills that the determining sentence can be awaited, because the contracting parties are presumed to have contracted under this limitation, namely so that before payment all things may be justly defined. Since each opinion is probable, do not compel those resisting to pay anything before sentence; but once sentence has been given, allow that something be paid only when the other has truly sought it (I, n. 150).

Note. Whether and when ignorance, or doubt, excuses from a penalty enacted by law, we shall say below, n. 219, where we treat of causes excusing from law, and n. 1269, 1273, where we treat of censures.

Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. IV, Art. I, § 3. On the Obligation of an Invalidating Law

Suarez, de Leg., l. 5, c. 19; De Lugo, de Jure et Just., disp. 22, s. 9, n. 249; Reuter, n. 231.

n. ¶185.

DEFINITION. An invalidating law is that which establishes that some act, otherwise firm and valid, when certain conditions occur, is infirm and invalid, or at least to be invalidated.

It concerns vows, oaths, contracts, benefices, religious profession, matrimony, absolution from censures, delegation of jurisdiction, election of a prelate. Cf. n. 1051.

It differs 1. From a law simply prohibiting; because this makes the act which it forbids illicit indeed, but not invalid. To this point belong the words of right: Many things are prohibited from being done, which, if they shall have been done, obtain the firmness of force (c. 16, de Regular.).

From a law not assisting an act; which neither confirms nor weakens an act, some contract, for example, a game, and leaves such a thing as it was by force of natural right; and therefore obliges a judge only to this, that in the external forum he take no account of that act (Bouquillon, Theol. fund., n. 149).

DIVISION. An invalidating law is distinguished in many ways:

By reason of the thing which is affected, one is directly invalidating, when it pronounces an act absolutely void, for example, a donation made to an incapable person; another is indirectly invalidating, when it rescinds the instrument of an act not duly made, that is, when it prescribes a certain form, or solemnity, to be observed in the act, so that without such form the act does not subsist.
By reason of the obligation induced, one is purely invalidating, another at the same time prohibiting, according as it either only rescinds the act, or at the same time also prohibits it (cf. the things soon to be said, n. 189).
By reason of application, one is invalidating by the fact itself, when by the law itself the act is declared null, so that the sentence of a judge is not required, for example, clandestine marriage; another is ferendae sententiae, when the act is pronounced only to be invalidated through the sentence of a judge, for example, a contract entered upon by a minor to his own detriment.
By reason of the mind of the legislator, one is penal, when it assigns invalidation in hatred of the transgressor, for example, the invalidation of the conferral of a benefice on account of the crime of simony; wherefore if fault was lacking, for example, on account of fear or ignorance, no invalidation is given. Another is purely invalidative, when it is introduced not in hatred of anyone, but on account of the common good, for example, a law invalidating contracts, or testaments, or marriages, when the form prefixed by law has not been observed. Hence this invalidation is called legal, and obtains, even if invincible ignorance is present. Sometimes, however, invalidation is legal and penal at the same time, for example, in the impediment of crime (n. 2038, Question).

n. ¶186.

PRINCIPLES. I. Any supreme legislator can make invalidating laws. The reason is, because this is required for the common good; for otherwise frauds, dangers, and other grave inconveniences could not sufficiently be impeded and driven away from human society. Indeed, as regards the Church, it is of faith that she received from Christ the Lord the power of making laws of this kind concerning sacred things, for example, concerning the contract of matrimony (Salmant., de Leg., c. 2, n. 87).

Moreover, neither is the power of the civil legislator to be doubted, on account of the reason adduced. The question is only whether in fact he has used this power. The matter in each right is controverted on both sides as probable.²

Moreover, because an invalidating law, as being odious, is of strict interpretation; therefore, before sentence has been given by a judge, it is not judged to oblige in conscience; whence in practice one must stand for the possessor, until the sentence of the judge shall have established otherwise (cf. n. 1054).

n. ¶187.

II. Every law which commands, or permits, the invalidation of an act to be made, has force only after the sentence of the judge. This is clear from the terms themselves.

Hence: 1. An act, so long as it is not invalidated, remains naturally valid, even if the invalidation is maliciously impeded, whether by the author of the act, or by the judge, or by any other person whatever. Thus, for example, he who in good faith contracted with a minor can use the thing contracted, until the contract is rescinded by the sentence of the judge. Likewise, a vow or oath rightly emitted by a religious is valid and obliges, as long as it has not been invalidated by the Superior (IV, n. 48).

Once an act or contract has been rescinded by the sentence of a judge, it is not lawful to use it; because, even if there were doubt concerning the sense or concerning the justice of the law commanding invalidation, nevertheless there is no doubt concerning the power of the judge in such a case. Wherefore obedience must certainly be given to him when commanding (I, n. 99).

n. ¶188.

III. A law which certainly invalidates an act by the fact itself has invalidating force before sentence, and obliges in conscience to all other things which intrinsically follow from the invalidation. The first part is clear of itself. The other is proved from this, that from such a law the act is null, and consequently confers no right. For when the foundation is taken away, all things which rest upon it fall down (Suarez, de Leg., l. 5, c. 20, n. 13).

Hence: 1. If that act consists in the acceptance or acquisition of some thing, there follows from the law the obligation neither of using nor enjoying that thing, as if it were one's own. 2. If the matter concerns matrimony, it is not lawful to approach the spouse, nor

to usurp other marital rights. 3. Similarly, if the matter concerns religious profession, it is not lawful to place acts proper to religious.

It was said: A law which certainly invalidates; for in civil matter it is not always easy to discern whether a law is truly invalidating or merely prohibiting; and if it is invalidating, whether it is invalidating before sentence, or only after the sentence of a judge. Therefore, in these doubts, recourse must be had to the rules which above (n. 172) we set forth concerning the interpretation of laws. But if the doubt remains invincible, one must stand for the possessor.

n. ¶189.

IT IS ASKED. Whether an invalidating law obliges in conscience to omitting the act?

Resp. Affirmatively, if the law at the same time invalidates the act and expressly or tacitly prohibits it; otherwise, no. The reason is, because the obligation of law ought to be estimated from the intention of the legislator. Hence, speaking in itself, he does not sin who attempts to make acts naturally valid, prepared to obey when the judge shall have declared them null. Per accidens, however, it can easily happen that he sins, namely if he foresees that from his manner of acting enmities and grave damages will arise (Salmant., de Leg., c. 2, n. 100).

Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. IV, Art. I, § 4. On the Obligation of a Law Founded on Presumption

The things which are here said concerning law we will also to be applied to the sentences of a judge.

n. ¶190.

DEFINITION. A law is said TO BE FOUNDED ON PRESUMPTION, when it prudently supposes something on account of which it is made; and it can be defined: A law prescribing, or forbidding, something on account of a certain circumstance, which the legislator supposes to be connected with the thing. But if the supposition of the legislator does not subsist, the law is founded on a false presumption.

DIVISION. A law can be founded on presumption in a twofold way: 1. On a presumption of fact, when namely from probable judgment it supposes fault, negligence, or another fact to exist in particular in reality, for example, a law prescribing obedience to the sentence of a judge supposes it to be just.

On a presumption of common danger, which is also called of right, when with certain knowledge it supposes that from such a work, or from such a manner of working, damage, fraud, or grave inconvenience commonly follows; although perhaps it does not intervene in every particular case, for example, a law requiring the proclamations of banns, the solemnities of testaments, the law of the Index as regards books of harmful reading, etc.

n. ¶191.

PRINCIPLES. I. A law founded on a presumption of fact does not of itself oblige in conscience unless the fact exists. The reason is, because, when the truth of the fact is lacking, the law lacks every foundation. Hence the axiom: Presumption yields to truth. We have said of itself; for it can happen that it obliges on account of the public good, for example, to not disturbing order, to averting scandal (I, 100, 150; III, 927).

Hence: 1. "If in judgment it has falsely been proved that your animal inflicted damage, then you are not bound to pay the penalty; and when sentence has been given that you pay, although externally, so that scandal may be avoided, you are bound to pay, nevertheless you can secretly make compensation to yourself."

"The same holds for heirs who, because the inventory was neglected, are fined beyond the hereditary goods in paying the debts of the deceased, when in reality the debts exceed the inheritance" (H. Ap., II, 26).

n. ¶192.

II. A law founded on a presumption of right always obliges in conscience, although, in a particular case, no danger underlies it. The reason is, because the presumption of law is not false, and therefore the law does not lack the foundation of binding. For the cause on account of which it was made always subsists, since it supposes that danger is commonly given; which is most true, although in a particular case it does not underlie it. Then, when the end of the law ceases in the particular case, the law does not by this very fact cease, as the common opinion has it (cf. n. 258). Add that the common good forbids that an exception be given, since otherwise evils would not certainly be averted, nor especially would the danger of hallucination on the part of subjects be excluded (I, 199; ed. G., I, p. 178). Therefore in these laws, judgment in the forum of heaven, that is, of conscience, ought to be the same as in the forum of the court (Lugo, de Just., disp. 13, n. 62).

Hence, you are bound to abstain from the reading of prohibited books, even if no danger of perversion threatens you from reading of that kind.¹ Likewise, you are bound to pay the fine to which you have been condemned on account of damage which your beast truly inflicted, even though the damage was inflicted without your fault. For the end of the law is not only to punish fault, but also to render men more cautious.

Before sentence, however, you are not bound, if the law is merely penal; or if you doubt whether it is founded on a presumption of right or of fact; whether it is invalidating by the fact itself or through a judge, etc. The reason is clear from what was said in the preceding paragraph.

Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. IV, Article II: To Whom the Obligation of Law Extends

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

n. ¶2.

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

n. ¶3.

We undertake discourse concerning positive law, especially human law.

n. ¶4.

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

n. ¶193.

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

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

Enrolled into a community or society; and the reason is, because law is made immediately for a community. Therefore, just as it can oblige no one foreign to the community or society, so it obliges all who have been enrolled into it on account of some title from which enrollment follows: namely, on account of the title of baptism, from which follows enrollment or entry into a society universal in every respect, that is, into the Catholic Church; on account of the title of birth, attainment of the right of citizenship, domicile or quasi-domicile, from which follows enrollment or entry into some local society, for example, into a kingdom, into a diocese; lastly, on account of the title of pure election, yet accepted by the society, from which follows enrollment or entry into some particular society, for example, into a religious Order.
Properly and in every way subject to the jurisdiction of the legislator; properly is said; and the reason is, because the legislator can impose laws only on those who are truly subject to him. And hence it is why he himself, although he is a member of the community, nevertheless is not subject like the others to the laws which he makes for it; hence also it is why travelers are not held to all the particular laws of some place. They are indeed in the territory, but not of the territory, which latter condition is absolutely required so that one may be properly subject to the legislator, as will be said below, n. 206; in every way is said; and the reason is, because with respect to matter, in which someone is not a subject, he can be bound by no law: thus regulars are not held to all laws of a bishop; and with respect to territory into which a subject betakes himself, he is not always held to the law. Thus those who leave a diocese remain subjects of the Bishop, and nevertheless are not bound by his laws.

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

Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. IV, Art. II, § 1. On Children and Others Lacking the Use of Reason

n. ¶194.

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

n. ¶195.

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

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

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

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

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

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

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

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

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

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

n. ¶196.

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

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

Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. IV, Art. II, § 2. On Unbelievers and Heretics

n. ¶197.

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

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

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

n. ¶198.

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

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

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

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

Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. IV, Art. II, § 3. On Regulars and Clerics

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

n. ¶199.

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

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

n. ¶200.

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

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

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

n. ¶201.

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

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

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

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

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

n. ¶202.

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

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

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

Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. IV, Art. II, § 4, Travelers, and Wanderers

Vol. I, TREATISE ON LAWS, FIRST PART: ON LAWS IN GEN…, CHAPTER V: ON THE OBLIGATION OF LAW · Vol. I, TREATISE ON LAWS, FIRST PART: ON LAWS IN GEN…, Ch. V, ARTICLE I: ON THE FORCE OF OBLIGATION · Vol. I, TREATISE ON LAWS, FIRST PART: ON LAWS IN GEN…, Ch. V, ARTICLE II: ON THE MODE OF SATISFYING THE OBLIGATION OF LAW · Vol. I, TREATISE ON LAWS, FIRST PART: ON LAWS IN GEN…, Ch. V, ARTICLE III: ON THE CAUSES EXCUSING FROM LAW · Vol. I, TREATISE ON LAWS, FIRST PART: ON LAWS IN GEN…, Ch. V, Art. III, § I. On the nature of those things which release from obligation · Vol. I, TREATISE ON LAWS, FIRST PART: ON LAWS IN GEN…, Ch. V, Art. III, § II. On the voluntary positing of causes releasing from obligation

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

n. ¶203.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Authors dispute whether someone can have two quasi-domiciles, and whether children acquire the legal quasi-domicile of parents (Wouters, op. cit., p. 102 ff.). Whatever may be the case concerning the controversy, it is certain that nothing stands in the way of children choosing a quasi-domicile for themselves, as many servants or workers, students, soldiers, public officials, etc., do.
As regards the sick received in a hospital, if a question is raised concerning their domicile or quasi-domicile, it must be seen whether they are admitted for a brief or long time, whether after an incurable illness, so that a true judgment can be made.

…and 14 more passages — all of them are listed on the topic page.

Konings, Theologia Moralis

Anthony Konings, C.SS.R. — 17 passages

Vol. I, TREATISE ON LAWS, FIRST PART: ON LAWS IN GEN…, CHAPTER V: ON THE OBLIGATION OF LAW

We must treat 1° of the force of obligation; 2° of the mode of satisfying the obligation; 3° of the causes excusing from it.

Vol. I, TREATISE ON LAWS, FIRST PART: ON LAWS IN GEN…, Ch. V, ARTICLE I: ON THE FORCE OF OBLIGATION

n. ¶125.

Principles. - I. Every true law induces obligation, at least to penalty; for in this law differs from counsel, that a subject cannot pass it over with impunity at his own pleasure. - Thus all.

II. Every human law can of itself oblige in conscience before God. The reason is that Superiors have been constituted by God with the power of commanding. Hence: He who resists power resists the ordinance of God. But those who resist acquire damnation for themselves.² Thus all.

It is said: can oblige, but not, obliges; the reason is that a law does not oblige beyond the mind of the legislator. Therefore if he intends to oblige under penalty alone, the law of itself will not oblige to fault. And this indeed Doctors commonly hand down as having force both concerning civil laws and concerning canonical laws.

III. Law obliges under grave or under light fault according to the gravity of the matter or of the circumstances, or of the end specially intended by the Superior.

IV. An affirmative law obliges always, but not for always; but a negative law obliges both always and for always, that is, at individual moments. For they differ in this, that (not so much by force of the words as by the direct and primary end) the former commands an act to be posited, the latter to be omitted. But it is impossible for a man always to posit some act, for example, of the love of God; but no impossibility can be alleged of always abstaining from some prohibited act, for example, hatred of God.

V. Divine positive law and human law generally do not oblige with a very grave inconvenience, or with grave harm which is accidentally joined with the observance of the law. It is established from natural and canonical right, from the practice of the Church, and from the consent of all.

n. ¶126.

Questions. - Quaer. 1° Can a legislator prescribe under light fault in grave matter, and conversely?

Resp. to the 1st. Affirmatively, at least more probably, because the obligation depends on his will, just as the law itself. - Thus commonly.¹

Resp. to the 2nd. Negatively, because the proportion between grave obligation and light matter is lacking. Except if the matter is not in every way light, but grave from the end, etc. - Thus commonly.²

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

Resp. This must be gathered:

1° From the very words of the law. Thus its obligation is grave if in it it is said: we prescribe under grave fault, or under the indignation of God, or under the threat of divine judgment, or in virtue of holy obedience, or from the whole power.

2° From the matter itself, which will be grave by reason either of quantity, for example, in theft, or of quality, as a consecrated host, or of another circumstance of greater moment.

3° From the end; for if the end of the law is of very great moment, and the law greatly conduces to this end, the matter will be grave, even if that which is prescribed or prohibited is of itself something light. Otherwise, the matter will be judged light. Thus it is grave for one celebrating Mass if he omits to pour a few drops of water into the Chalice. But it will not be grave if on a day of fasting you eat one or another ounce of bread outside the meal.

4° From the gravity of the penalty imposed on transgressors of a mixed law; since penalty is proportioned to fault. It would be, for example, a penalty of perpetual prison; of excommunication, if it is latae sententiae. For it must be said otherwise more probably if it is only ferendae in matter not grave, since on one side that penalty, which is not incurred immediately, is not so great, and on the other side the matter, which is supposed light, does not of itself carry this. See n. 1662, 2°.

5° From the common judgment of prudent persons and from approved custom, which indeed is the best interpreter of laws.¹

n. ¶127.

- Quaer. 3° Can human law sometimes impede an obligation, otherwise valid, from being contracted?

Resp. 1° Affirmatively for the external forum. The reason is that sometimes the common good requires this; nor does natural law prohibit that, when the common good demands it, conditions be prescribed by which, if they are not observed, acts otherwise valid are invalidated. Thus civil laws annul testaments destitute of the prescribed solemnities. But cf. n. 915.

Resp. 2° Affirmatively also generally for the internal forum, if it is a question of ecclesiastical law. Thus the Council of Trent invalidates clandestine marriages, otherwise valid from mere natural right.

Resp. 3° As to civil laws and certain ecclesiastical laws which are founded on a presumption of fraud, it is disputed. Those who deny say that those laws are founded on a presumption of fraud alone, and when this is not present, before the sentence of the judge, the act invalidated by law will only be rescindable. Those who affirm say that they are founded not only on the presumption of fraud, but also on the danger of it, which is never not present. Each sentence is probable, but the latter is more probable. Hence, for practice, before the sentence of the judge, the rule of law must be applied: "In doubt the condition of the possessor is better." Thus, for example, someone can retain a thing due from a testament destitute of the solemnities of law until he is despoiled of it by the judge.²

n. ¶128.

- Quaer. 4° Is the violation of law in a light matter grave because of contempt?

Resp. 1° Affirmatively, if the contempt directly affects the legislator formally as such, because the authority itself from which laws obtain force is contemned, and consequently God himself, from whom authority flows, according to that word of Christ:³ "He who despises you, despises me."

Resp. 2° Negatively, if the contempt regards either not the legislator himself, but only the matter as light in itself, or indeed the legislator, but not as such, rather as a particular contemptible person, for example, imprudent, vile, idiotic, rude, unlearned. It is also clear in itself that one does not sin gravely if the act by which the precept is contemned is not sufficiently deliberate, but sudden. Hence mortal sin will rarely be present by reason of contempt.¹

n. ¶129.

- Quaer. 5° Does the application of law, or a sentence, which is founded on a false presumption of fact oblige in conscience?

Resp. 1° Negatively, if the application of the law is founded only on the presumption of a particular fact, of fault, fraud, or damaging; the reason is that if the fact is lacking, by that very fact the whole foundation of the obligation is lacking. Hence if you are condemned to pay money for damages which are falsely thought to have been inflicted by your donkey, you are not obliged to pay, except accidentally, for example, by reason of scandal; but then you can compensate yourself, even after sentence has been given.²

Resp. 2° If the law is founded on a presumption of the universal danger of fault, frauds, etc., its application always obliges in conscience, even with every fault excluded; because the common good requires that all be stably obliged. Otherwise evils would not be impeded efficaciously; and otherwise the law intends to forestall the danger of deception, and to render men more cautious. Hence you are held to pay a fine to which you are condemned for damage truly inflicted by your animal, even if that damage happened without your theological fault.³ - See the things to be said in the Treatise on Right and Justice, n. 753, q. 10°, 775, q. 3°, q. 4°. - Our laws are universally consonant.

Vol. I, TREATISE ON LAWS, FIRST PART: ON LAWS IN GEN…, Ch. V, ARTICLE II: ON THE MODE OF SATISFYING THE OBLIGATION OF LAW

n. ¶130.

Principles. - I. To satisfy any obligation, an intention of doing that which is prescribed is required if the law is affirmative, falling on an action rather than on some effect to be obtained, for example, a law prescribing the hearing of Mass on a feast day. The reason is that a law prescribing an action cannot prescribe anything except a human action, which cannot be posited except in a human mode. - But it is by no means required if the law is either negative, as a law prohibiting servile works on feast days, or indeed affirmative but falling on some effect to be obtained rather than on an action, as a law which demands the payment of a debt or the restitution of another's thing, which one fulfills who pays or restores in drunkenness. The reason is that a negative law intends nothing more than the omission of the work; but an affirmative law about which we are speaking demands nothing more than that the effect be obtained, namely equality of thing to thing.

Hence he cannot be said to have satisfied the precept of hearing Mass who was present at it drunk or sleeping; but indeed he who slept the whole day without food or drink cannot be said to have violated the law of fasting. Thus likewise he does not satisfy the precept who goes to church only that he may feed his eyes, speak with another, await a friend, accompany a mistress going or returning, or hear the music, while he only assists at Mass bodily. The same say of a boy only through fear of parents, or of anyone else carrying himself to church under compulsion; for these lack the intention of doing what is prescribed. It is otherwise if, although compelled, or principally induced by fear or another motive, they have gone to church and yet assist at Mass in the due manner. For by this very fact that they assist at Mass in this way, they have the intention of doing that which is prescribed. Nevertheless persons of this kind are usually sinning by reason of the contrary evil will, namely, of not assisting if either coercion, or fear, or that other principal motive had not been present.

n. ¶131.

- II. The intention of fulfilling the precept, or of acting from the motive of formal obedience, is not required; because the legislator prescribes only the positing or omission of the work.¹

Hence he satisfies who hears Mass while not knowing that it is prescribed on this day, or who indeed knows the obligation, but intends only here and now to satisfy devotion, with the proposal of hearing another Mass.² - Nor does it stand in the way that an act does not operate beyond the intention of the agent; for that has force only in those things which depend on the power of the one operating alone. Hence he does not satisfy who posits a work to be posited by force of a vow, or oath, or sacramental penance, while expressly intending not to satisfy.

n. ¶132.

- III. It is not required that the law be fulfilled from the motive of charity (which is never of precept), or in the state of grace, unless this is prescribed, as in the reception of the Eucharist. The reason is that the work is prescribed, but not the motive. It is established also from proposition 16 of Baius, condemned by Pius V (p. x).

IV. The intention of fulfilling the end of the precept is not required, unless that end precisely of itself is prescribed; because ordinarily the legislator does not prescribe the end, nor does he intend to prescribe it, but only the positing of the act. Hence the axiom: The end of the precept does not fall under the precept. - St. Thomas.¹ In other words: the intention of the legislator concerns two things: concerning one indeed, that which he does not intend to prescribe, but that to which he intends to lead by the precept of law; and this is virtue, which is the end of law. There is another thing concerning which he intends to make a precept; and this is that which, as a means, induces or disposes to virtue. Moreover, it is necessary that satisfaction be made to the latter intention so that the law be fulfilled, not to the former.

n. ¶133.

Questions. - Quaer. 1° Does he satisfy the obligation of a law who sins in fulfilling it?

Resp. Affirmatively, provided the act is honest in itself, and only evil from an extrinsic circumstance, so that the substance of the thing prescribed is posited. The reason is that the precept commands only the substance of the act, but not the mode. Hence he satisfies who during the Mass at which he is present by precept gives consent to a temptation of vain-glory, lust, theft, or any other sin whatsoever. Nevertheless, satisfaction is not made to the precept of Confession or Communion through a sacrilegious Confession or Communion, because then the very substance of the act is infected by sin. It is established also from proposition 14 condemned by Alexander VII (p. xiii). - St. Alphonsus² and others commonly against a few.

n. ¶134.

- Quaer. 2° Can diverse precepts be fulfilled a) by one act; b) by diverse acts posited at the same time?

Resp. to a) Affirmatively, provided 1° by that one act the whole of that is posited which is prescribed through the diverse laws; 2° the mind of the legislator is not otherwise.

It is said: 1° the whole of that be posited, etc. But the whole is judged to be posited if these diverse precepts fall on the same matter and have the same motive, as if the fast of a vigil falls in the Ember Days; otherwise, however, if they fall on diverse matter, or indeed on the same matter, but on account of a diverse motive, as a fast owed from penance and from ecclesiastical law.

It is said: 2° the mind of the legislator is not otherwise, etc. But the mind of the legislator can be gathered from the nature of the prescribed work, from circumstances, from the common sense of pious persons, etc. Thus you cannot hear several Masses imposed on you by the confessor at the same time, while they are celebrated at the same time on several altars, because such is not the presumed intention of the confessor, unless the confessor had regard to the fruit of the Sacrifice.² But he who is held to hear Mass on individual days from penance for one month satisfies by hearing one Mass on Sunday, because it is reasonably presumed that the confessor did not will to oblige the penitent to hear two Masses on the same day, unless he expressed this.³

Resp. to b) Affirmatively, if those acts are associable, that is, if they can be posited as such as are demanded, because then the whole is posited which is demanded. Thus you can recite the canonical Hours while hearing Mass, or pay the imposed penance, etc.⁴

n. ¶135.

- Quaer. 3° What must be done in the concurrence of two unassociable precepts?

Resp. Other things being equal, the greater must be observed before the lesser, which then ceases to oblige. Hence 1) a negative precept prevails over an affirmative, and therefore it will not be lawful to steal in order to assist the poor; 2) a natural precept prevails over a positive, and a divine over a human, and therefore Mass on a feast must be omitted lest a gravely sick person be deserted; 3) the law of a superior, for example, of the Pope, prevails over the law of an inferior, for example, of a Bishop; 4) ecclesiastical law prevails over civil law; 5) law resting on a stricter virtue, for example justice, prevails over law resting on a less strict virtue, for example charity, and therefore he who cannot both give alms and pay a debt is bound not to give alms. Yet I said: other things being equal; because account must always be taken of other circumstances which perhaps prescribe that the order be inverted, or change the case. Thus one must assist a poor person in extreme necessity before you pay a debt to a creditor not staying in the same necessity.

n. ¶136.

- Quaer. 4° Does an obligation cease when satisfaction has not been made to it at the determined time?

Resp. 1° Affirmatively, if the determination of time was made to finish the obligation. Thus, for example, if you did not fast on the day of a vigil, you sinned, but are freed from the law, because the burden is affixed to that day itself.

Resp. 2° Negatively, if the time was determined only for soliciting or urging the obligation. Thus he is not freed from the obligation of receiving Communion who did not satisfy it in Paschal time.¹

Vol. I, TREATISE ON LAWS, FIRST PART: ON LAWS IN GEN…, Ch. V, ARTICLE III: ON THE CAUSES EXCUSING FROM LAW

Vol. I, General Moral Theology, Treatise: On Laws in General, Section A: On Law Accordin…, First Part: On Law in Gene…, Third Question: On the Effects of Law · Vol. I, General Moral Theology, Treatise: On Laws in General, Section A: On Law Accordin…, First Part: On Law in Gene…, Third Question: On the Eff…, Article I: On the Directive Force or Obligation of Law · Vol. I, General Moral Theology, Treatise: On Laws in General, Section A: On Law Accordin…, First Part: On Law in Gene…, Third Question: On the Eff…, Article II: On the Coercive Force or Sanction of Law · Vol. I, General Moral Theology, Treatise: On Laws in General, Sect. C, Sixth Part: On Ecclesiasti…, Second Question: On the Power or Obligation of Ecclesiastical Law

1° On the nature of those things which release from obligation. - 2° On the voluntary positing of causes releasing from obligation.

Vol. I, TREATISE ON LAWS, FIRST PART: ON LAWS IN GEN…, Ch. V, Art. III, § I. On the nature of those things which release from obligation

n. ¶137.

- Causes releasing from obligation are either exempting or impeding. The former are those which totally withdraw someone from the dominion of law, for example, if someone withdraws himself outside the place which the law affects. The latter are those which impede, or excuse, a subject remaining under the law from its fulfillment. But these impeding causes are reduced to ignorance and impotence.

Principles. - I. Exempting causes totally free one from the obligation of law; for no one can impose a precept upon a man not subject to himself. Moreover, where some exempting cause is present, he who was subject to the law ceases to be subject to the same law either by reason of the territory from which he is absent, or by reason of privilege. Therefore.

II. Invincible ignorance excuses from law in this sense alone, that its violation is not imputed unto formal fault, as is plain. - But vincible ignorance does not excuse from any fault, since it could, or can, be laid aside by serious diligence.¹

III. Physical impotence always excuses from observing law, as the very common axiom has it: "No one is held to the impossible." Moral impotence likewise excuses; because the legislator is not judged to urge obligation with an inconvenience which can be considered grave (n. 125. V.). Impotence exempts those not observing the law even from material fault.

Hence grave fear, excluding damage to society or religion, excuses from human law; because human law does not oblige with grave harm. It also sometimes excuses, although with greater difficulty, from a positive divine precept, for example, from the integrity of Confession; indeed even from an affirmative natural precept, for example, of keeping a deposit with danger of life, of which, however, there is then rather no case; for you did not will to oblige yourself to keep the deposit even with danger of life. Yet it never excuses from a negative natural precept, because the object of this is intrinsically evil. Nor should you say that it is licit to steal in extreme necessity; for then it ceases to be theft.¹

I said: grave fear excuses from human law, excluding damage to society or religion; for this rather than private damage must be avoided; moreover, in each of these cases there enters the natural precept of guarding against damage to society and religion. Thus a soldier keeping watch ought rather to die than, when the enemy is approaching, to be silent (n. 105. 2°). Hence also, if you are directly compelled in contempt or in injury of ecclesiastical power to communicate with one to be avoided, to work on a feast day, to eat forbidden foods on a fast day, you must refuse even with grave damage to yourself, unless by protesting you can avert the contempt. Thus, if an unbelieving or heretical father of a family should say to his Catholic children: "I will that you eat meats on Friday, and that in contempt of the Pope and the Church," the children would not sin if they replied: "Father, know that we eat meats because you refuse to set other foods before us; for in this case it is licit for us to eat them."

n. ¶138.

- Quaer. Is he who is impotent for the whole held to a part?

Resp. Affirmatively, when the matter of the law is divisible, and the end of the precept remains in the individual parts. It is established moreover from proposition 54 condemned by Innocent XI (p. xvii). Therefore it is otherwise if that part is so slight that it conduces in no way to the end of the precept, - or if it is uncertain whether there is power even as to that part of the precept, as, for example, in the sick as to the Breviary, and in the weak and in convalescents as to fasting; for scarcely, or not even scarcely, can it be determined what they can do and how far. Hence, lest they undergo danger of anxiety or notable detriment to health, the benign Mother Church is not to be supposed to will to oblige them even to a part.¹

Hence 1° He who cannot fast in Lent ought to abstain from meats, if he can. Likewise he who cannot fast on all days is held on the days on which he can without grave inconvenience.

2° If someone lacking a Breviary knows a few things from the Hours by memory, he is not held to recite them; otherwise if he holds in memory a notable part, for example, Vespers or Compline.

3° He who vowed a pious pilgrimage, and cannot complete the whole journey, is not held to begin it, because the end of the precept cannot be obtained.²

Vol. I, TREATISE ON LAWS, FIRST PART: ON LAWS IN GEN…, Ch. V, Art. III, § II. On the voluntary positing of causes releasing from obligation

n. ¶139.

- Causes releasing from observing the law can be posited either directly or indirectly, namely according as the agent is moved either by the end of withdrawing himself from the obligation of the law, or by another cause, with the impediment to observing the law nevertheless foreseen.

Moreover causes of this kind can be either present, or proximate, or remote, according as the law urges at that very time at which the cause releasing from obligation is posited, or shortly after, or only after a notable interval of time.

Principles. - I. Unless a special prohibition stands in the way, it is always licit to posit EXEMPTING causes, even proximate and present ones, and these directly. We gave the reason at n. 137.

II. It is never licit directly to posit or not to remove IMPEDING causes, even if only remote. The reason is that, so long as someone is subject to the law, he cannot will to infringe it without such a will being a violation of the law itself. Therefore excommunicated persons sin who do not seek absolution precisely for this reason, that, once absolved, they may not be held to Paschal Communion, or those who with this intention go away into a place where they will not be able to communicate in Paschal time.

III. Indeed it will not be licit even indirectly to posit or not to remove proximate or present impeding causes (which in morals are equated), unless a proportionate necessity is present from elsewhere; otherwise every law would be eluded. Thus he sins who gives himself over to sleep or sets out on a journey at the time when Mass is to be heard, or a little before, - or who on a fast day without just cause assumes some labor by which he is rendered impotent for fasting, - or the excommunicated person who does not seek absolution so that he may be able to satisfy the precept of Paschal Communion, - or he who, Paschal time having begun, does not communicate before he goes away into a place where he will not be able to communicate. Tailors and shoemakers likewise sin who on the day before a feast day do not prepare necessary garments and shoes, if they can do this without grave inconvenience.

IV. But more probably it is licit, even without reason, indirectly to posit remote impeding causes. The reason is that the legislator is not judged to will to restrict liberty so much. For it would be too grave a burden if everyone, long before the obligation of the law, were bound to abandon all works incompatible with that obligation, and to await the time of obligation.

But when a cause is to be judged as impeding proximately, and when only remotely, can scarcely, or not even scarcely, be established by some general norm. And indeed that which precedes the time of fulfilling the precept by the space of several days is usually held to impede remotely; but there must always be kept before the eyes both the mind of the legislator and the gravity of the matter prescribed, and also the judgment of prudent men and the practice of the good. L. I, 152.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 81 passages

Vol. I, General Moral Theology, Treatise: On Laws in General, Section A: On Law Accordin…, First Part: On Law in Gene…, Third Question: On the Effects of Law

St. Thomas, I-II, q. 92.

231. Effects of law in subjects:

The mediate effect, as much as is from the force of law, is to make those to whom it is given good, either simply and in every way, as the law of charity does, or in a certain respect and in a certain matter, as other particular laws do. Thus natural or divine law tends to this, that men be made good by moral virtues proportioned to nature or by supernatural virtues; civil or ecclesiastical law tends to this, that, at least according to exterior acts, they be good citizens or good Christians.

Yet all further tend to charity, insofar as charity is the end of every virtue and thus of every law. For the acts of the other virtues are ordered to charity as to the end (II Sent. d. 38, q. 1, a. 1 and 2; Contra Gentiles III, c. 115, 116, 117), and therefore it is the end of the law (III Sent. d. 27, q. 2, a. 4, q. 3).

The immediate effect, however, is obligation passively regarded, or to be obligated.

n. 232.

232. Proper acts of law or immediate effects in the legislator:

n. 232.

Four are enumerated, not because they are elicited and produced by law, but because law is, as it were, made integral from them.

n. 232.

For law concerns human acts, because it induces men to this, that it be obeyed by them with respect to certain acts: 1) with respect to acts good from their genus, it has to prescribe or command; 2) with respect to those evil from their genus, to prohibit or forbid; 3) with respect to indifferent acts, and for human law with respect to slightly good or evil acts, to permit; and thus according to these three it has directive force; 4) but that by which it induces to this, that it be obeyed, is fear of penalty, and therefore to punish is posited, and thus law also has coercive force. Nor among these acts is to obligate numbered, which is an act necessarily following from the four aforesaid: from precept or prohibition follows the obligation of acting or avoiding; from permission in some things arises an obligation of not impeding; from punishment there arises in the judge the obligation of inflicting the penalty and in subjects the obligation of undergoing it. Nor are counseling and rewarding numbered, because they are not proper to law but can also pertain to a private person.

Vol. I, General Moral Theology, Treatise: On Laws in General, Section A: On Law Accordin…, First Part: On Law in Gene…, Third Question: On the Eff…, Article I: On the Directive Force or Obligation of Law

233. The proper effect of law is obligation. This holds a middle place among the various effects of law: its ultimate effect on the part of the legislator is obligation actively regarded, or the power of binding which resides in the law; to this there corresponds in subjects, as the first effect, obligation passively regarded, that is, the moral bond itself and the necessity of obeying.

But obligation is a moral necessity of doing or omitting something, categorical or imperative. It is called:

a moral or objective necessity, which befits a free being and by which something is necessary by the necessity of the end (as means or precept), so that without it the end is not obtained. Whence it is a moral bond or practical necessity of choosing means to the end, by which, on the supposition of the end, such a means must necessarily be furnished; and thus it is distinguished from a physical bond or the physical subjective necessity of efficiency, both natural, which takes away liberty, and of coercion, which also destroys the voluntary;

categorical or imperative, that is, not only conditional, on the supposition of the end if someone wishes to obtain it, but absolute, by which the end itself is imposed. Whence obligation arises from a twofold necessity: from the absolute necessity of the act with respect to the ultimate end, and from the absolute necessity of this end. And thus it is made manifest how it does not harm liberty: it binds the will insofar as the intellect proposes the end and the means, while leaving untouched the physical power of acting or not acting.

Cf. Q. D. De Veritate 17, a. 3; I, q. 87, a. 1; I-II, q. 99, a. 1; II-II, q. 44, a. 1; q. 55, a. 3, ad 2; Contra Gentiles I, 67; II, 29; Quodlibet V, 19.

In other words, obligation imports a twofold debt: one according to itself, and thus the end is due; the other on account of another thing, that is, without which it is impossible to arrive at the end. And thus "in debt there is an order of exigency or necessity of something to that to which it is ordered" (I, q. 21, a. 1, ad 3).

Hence obligation, like morality, is an intrinsic habitude and real order, or transcendental relation:

a) in the obligatory act, just as morality is the real order of conformity or difformity, so obligation is the real order of necessity to the object and ultimate end (I-II, q. 99, a. 1);

b) in the obligated person, it is not only a relation of subjection to the person of the legislator, which is presupposed, but adds a new relation by which he is subjected as to this or that prescription (II-II, q. 16, a. 1).

Obligation, therefore, is a property of a human act according to which it is said to be necessarily placed or avoided for the ultimate end.

234. Division of law by reason of diverse obligation. - Obligation is diverse according as law has directive force or coercive force, and therefore by reason of effect or diverse obligation, one law is moral or preceptive, which only directs and obligates to placing or omitting an act; another is penal, which only punishes him who has omitted the prescribed act or placed the prohibited act; another is mixed, which does both. Every law obligates in conscience to something which the legislator intends; otherwise it would not be a true law but a counsel. But this is the difference between a purely preceptive law and a purely penal law: the first only obligates to placing or omitting the act established by law, without inflicting a penalty upon transgressors, namely: let everyone do this, for example, hear Mass; the second obligates only to undergoing the penalty which the law exacts from him who has not placed or has omitted the established act, namely: he who has done this, for example, who before this day has hunted or fished, is to pay money. For since in positive law the whole obligation depends upon the legislator, just as he can not obligate, so he can obligate more or less, or to the penalty alone. From these is distinguished mixed law, which is preceptive or moral and also penal, namely, let no one do this under penalty: this obligates in conscience to placing or omitting the act and at the same time to undergoing the penalty if it has not been placed or omitted; but the merely penal law does not obligate in conscience to placing the act, but under the penalty alone, to which nevertheless it binds in conscience.

There is not one mode in which they conceive merely penal law. Some say that moral and at the same time penal law, or mixed law, obligates conjunctively to two things: both to doing the prescribed work and at the same time to undergoing the penalty if it has not been done; but merely penal law disjunctively: either to placing the work, or to undergoing the penalty if it has not been placed. Thus Laymann, the Salmanticenses, d'Annibale, Bouquillon, Haine, Marc, and Tanquerey seem to speak. On the contrary, others assert that mixed law obligates to two things: to one absolutely, namely, to placing the prescribed work; but to the other conditionally, namely, to the penalty, if the work has not been placed; while merely penal law obligates only to one thing conditionally and hypothetically, namely, to paying the penalty, if the work intended by the legislator has not been fulfilled. For the legislator thinks and intends that his scope can be obtained by the mere threat and obligation of penalty. But if it is objected that penalty supposes fault, they respond that it does not necessarily suppose fault in the forum of conscience, but juridical fault in the external forum and before human law suffices: a transgression of the order constituted by law. Thus Suarez, Billuart, Noldin, Koch, Wernz, Prummer, Maroto, Vermeersch, and A. Janssen are said to hold. That St. Thomas admitted merely penal laws is clear from II-II, q. 186, a. 9, ad 1.

By reason of form, moral law is distinguished into affirmative or commanding law, which imposes something to be done, and negative or prohibiting law, which imposes something to be omitted; the former obligates always but not for always, that is, only for some time during which it endures; the latter obligates always and for always, that is, for every time during which it endures. And indeed at any time we are bound to abstain from every evil, but not to do every good.

Affirmative and negative are to be taken not from the words but from the end.

To preceptive law is reduced the law which, permitting, commands the liberty of someone and prohibits that it be impeded by others; to penal law rather is reduced the law which, invalidating, coerces by invalidating an act placed against the law.

Vol. I, General Moral Theology, Treatise: On Laws in General, Section A: On Law Accordin…, First Part: On Law in Gene…, Third Question: On the Eff…, Article II: On the Coercive Force or Sanction of Law

n. 235.

235. A law is sanctioned when it is decreed holy, that is, inviolable; whence sanction (bekrachtiging) is that which confirms and urges the law. Hence:

n. 235.

among modern jurists, sanction not rarely is called the act by which the king or president of the republic, with his name subscribed, as it were completes the law and renders it firm, so that it can be promulgated and obligate; whence that act precedes promulgation and announcement of the law;

n. 235.

among moralists it is rather coercion or penal coercion by which law is confirmed and urged. It can be regarded a) actively (as coercive force), namely, the act or decree of the legislator by which an evil or penalty is established for those violating the law, or, on the contrary, a good or reward for those observing the law; and b) passively, namely, the penal coercion itself or retribution of penalty, or also denial or concession of reward, which is added to the law to confirm it and to compensate the detriment which comes to society from violation of the law: the penalty, or also reward, established by the legislator in those who transgress it or observe it.

n. 236.

236. Sanction differs from obligation: 1) the latter pertains to the directive force of law, the former to its coercive force; 2) the latter equally affects all subjects, the former first per se and immediately affects only transgressors of the law; 3) the latter per se is conformable to the inclination of the will toward good, the former per se is repugnant to the will and is opposed to its natural inclination toward good; 4) obligation is a binding to good order, sanction is immediately the privation of some good.

237. Therefore sanction is the complement of law and of obligation. Its end is threefold:

a) that subjects be moved efficaciously to observance of the law: for knowledge of the law itself and consciousness of obligation do not now sufficiently induce man, insofar as he is subject to the enticements of concupiscence, to keeping the law;

b) that the moral order be completed by retribution of reward, and especially restored by retribution of penalty: for the order of justice demands that penalty be repaid to violation of the law, in order to restore equality; or also sometimes asks that reward be granted to observance of the law;

c) that subjects rebelling against the legislator be subjected to his authority, because those who refused voluntarily to subject themselves to law are compelled against their will to undergo evil. He who rises up against some order, says St. Thomas, must be repressed by the prince of the order (I-II, q. 87, a. 1).

Therefore law, in order to move us efficaciously and direct us to the end, must be confirmed by sanction.

Its influence is twofold: 1) antecedently, under the preventive respect, when before the placing of the act, by means of promise or threats, it induces men to keeping the law; whence the scope of sanction is that the law be kept: thus it is for correction;

consequently, under the retributive respect, when after the deed reward or penalty is repaid to those acting well or badly: thus it is for coercion.

Hence a) in the state of threat, the primary end of sanction is amendment or preservation, in one word: the avoidance of sin;

b) in the state of execution, the principal end is the restoration of order; but secondarily it can have amendment.

Vol. I, General Moral Theology, Treatise: On Laws in General, Sect. C, Sixth Part: On Ecclesiasti…, Second Question: On the Power or Obligation of Ecclesiastical Law

340. Thesis. Ecclesiastical law as such is truly moral, that is, it does not import mere coercion, but obligates in conscience and before God, even under grave sin.

It is of faith from the Council of Constance, sess. 8, prop. 8, 11, 12 and 15 against Wyclif, and sess. 15, prop. 12 and 15 against Hus, and from the bull of Leo X against Luther, and from the Council of Trent, sess. 7, can. 8 on Baptism; that the obligation is grave is clear from the universal preaching of the Church and from the practice of urging certain laws under grave sin.

It is proved: a) Ecclesiastical law is borne by power conceded by God, is imposed and sanctioned in the name of God by His minister; whence the things which are bound by it on earth are also bound in heaven, and those who spurn the ministers spurn Christ (Mt. XVI, 19; XVIII, 17-18; Lk. X, 16).

Vol. I, Tr. III, Pt. I, Chapter VII. On the Obligation of Law · Vol. I, Tr. III, Pt. I, Ch. VII, Article I. On the Very Force of Obligation

b) Human law obligates in conscience, so that those who resist natural human power acquire damnation for themselves (Rom. XIII, 2); a fortiori ecclesiastical law, which is made by power supernaturally constituted.

…and 41 more passages — all of them are listed on the topic page.

Sabetti-Barrett, Compendium of Moral Theology

Aloysius Sabetti, S.J., and Timothy Barrett, S.J. — 6 passages

Vol. I, Tr. III, Pt. I, Chapter VII. On the Obligation of Law