Scotus Academicus, Tomus sextus: De Legibus Divinis et Humanis

That the name of Law is received in various senses, and that its appellation differs, both among sacred and among profane writers, there is no theologian who does not know. For Sacred Scripture illustrates and signifies law under several titles: it sometimes calls it by the name of will. Thus Psalm 102. He made his ways known to Moses, and his wills to the children of Israel. So likewise 2 Machabees 1. May he give you a heart to do his will in all things. Sometimes it expresses it under the name of light and of lamp. Thus Proverbs 6. The commandment is a law, and a light to the way of life. Elsewhere it calls it a yoke, thus Psalm 2. Let us cast away their yoke from us. And Matthew 11. My yoke is sweet. At times it expounds law under the name of precept. Thus Psalm 18. The precept of the Lord is bright. More often it names it commandment. Thus Psalm 118. Thou hast commanded thy commandments to be kept most diligently, and Matthew 19. If thou wilt enter into life, keep the commandments. — But by a more common and more widely current name it is called lex, law. Of this name there is a threefold usage: the first indeed common and improper, for whatever rule of nature, of art, and of human actions. Here the law of nature is called, not that dictate of reason innate in individual men, whereby each one knows what accords with or conflicts with reason; but that which has been implanted by the Author of nature in all things; and it is nothing else than the very inclination of any thing whatsoever, whereby it is borne toward that which is fitting for it: for which reason St. Paul calls the inclination of the sensitive appetite toward a good congruent to it the law of the members, and the law of sin, at Romans 7. The law of art is that which embraces the rules according to which the works of an art must be formed, so that they may be called perfect; thus we speak of the laws of Grammar, etc. Finally, the law of morals is the norm or rule of whatsoever actions both of intellect and of will. — But more strictly, and more properly, law is said to be the rule of morals, whether just or unjust, in which sense even the prescriptions of tyrants are called laws. Thus Isaiah 10. Woe to them that make wicked laws. So likewise St. Isidore uses the term law, book 2. of the Etymologies, chapter 10, when he says that law is the constitution of the people which the elders sanctioned together with the plebs. But most strictly, and in its adequate signification, law is used for the ordination of reason directed to the common good, promulgated by him who has the care of the community, with obligation to its observance. Of this latter usage of law we shall speak in the following Questions.

We devote ourselves to establishing and asserting the necessity and existence of law: for the very defectibility and exigency of the intellectual creature sufficiently makes this plain. For since it very often deflects and wanders from the end of honesty toward which it ought to tend, it has need of some rule by which it may be led as by the hand to the attainment of that end. And if these things are true of the natural end, they must be far more certain concerning the supernatural end, which since it altogether exceeds the understanding and powers of the rational creature itself, and is naturally unknown to the human mind, no one can reach unless he be directed by a higher law and assisted by supernatural aids. — The very great utility of laws for the institution and preservation of the commonwealth proves this same point, whose salvation Aristotle rightly said was constituted in laws, book 5 of his Rhetoric: for if anyone should take away the laws from the republic, he would wrench the soul itself from the body; indeed where laws are lacking, thefts, homicides, and every other crime rage with impunity; whence that well-known saying of Augustine: Justice removed, which is established above all by laws, what are kingdoms but great robberies! To this also accords that saying of Isidore, book 2 Etymologies, chapter 20: Laws were made so that through fear of them human daring might cease, and innocence be safe among the impious, and in the impious themselves, dreading punishment, the faculty of doing harm be broken.

Therefore we undertake here only to expound the nature of law; wherefore

Note 1. Law, according to the etymology of the name, is said either from ligando, binding, because it binds and obliges men to its observance: on which account God complains of the rebellious Jews in Jeremiah 2: You have broken my yoke, you have burst my bands, and you said: I will not serve. And in Matthew 23 Christ, pointing out the hypocrisy and hardness of the Pharisees, says: They bind heavy burdens etc. Secondly, law is said from legendo, reading: because laws, especially positive ones, must be read and promulgated after they have been instituted, so as to bind subjects; or because man reads in the law itself what is to be done and what omitted; or finally, because laws were once handed down in writing so that they might be read and understood by all. Hence Isidore, book 2 Etymologies, chapter 10: This is the difference, he says, between law and custom, that law is written, while custom is a usage approved by antiquity. Cicero confirms this, book 1 On the Laws, where he says the word lex is derived from the verb lego, because it is recited from public tablets so as to become known to all; or it is said from eligendo, choosing, because in it there is a selection of things to be done or avoided: for every law dictates what things are to be chosen and what rejected. This latter usage of lex seems more apt and fitting to our present undertaking. Among the Hebrews, moreover, law is called thorah, from a verb which in the hiphil means to teach, because every law admonishes individual men of their duty and informs them concerning things to be done or avoided. Among the Greeks it is called nomos, from the verb nemеin, which signifies both to rule and to distribute, because according to its precept men ought to be ruled, and to render to each what is his own. Hence St. Augustine, Commentary on Psalm 59 after the middle, observes that although lex in the Latin tongue is of the feminine gender, nomos in Greek is masculine: for it has, he says, rather a masculine force, since it rules and is not ruled.

Note 2. That although law may not absurdly be judged to derive from legendo, reading, nevertheless the principal ground of law must not be placed in written or spoken discourse, but in the things themselves which are commanded or prohibited.

For it belongs only to things themselves to be done or not done, not properly to commands or words, says William of Paris in the treatise De legibus, chapter 1; for he who commands one to run does not command the word, but the running itself; nor does he who obey make the word of running, but the running itself properly; therefore as things are properly said to be done or omitted, so they are properly commanded and prohibited; wherefore also things are properly commanded and prohibited, words figuratively. Therefore precepts, and commandments, and law are first and properly read even as they are understood; for things are properly those whose understanding is properly and first sought. Which indeed he further confirms there, saying: The rules of honesty are such as these, that God is to be honored, that God is to be feared, that God is to be adored, that every man is to be loved, that provision is to be made for every man; whether those rules are written without or not, and whether they are heard without or not, they are true and to be held. And each one is bound by the debt of honoring God and by the debt of fearing him, whether he read it written abroad or not, and whether he hear these things abroad or not. And after this manner it stands with other things which are debts per se; although it be true that greater knowledge of the height and power of God augments the debt of honor and fear owed him, and increases the obligation. It is manifest, therefore, both that the rules of honesty and the debts, that is obligations, of doing certain things and avoiding certain others exist with all speech and writing set aside, and that transgression and sin likewise are without these; wherefore some law exists of necessity beyond this. Furthermore: all honesty is undoubtedly in the soul — I say the honesty of human life and of morals; but honesty of life regulated, ordered, and moderated: yet it is not regulated, or moderated, or ordered except by honesty, nor comely except by honesty. Wherefore the whole of that which orders, regulates, moderates, and adorns human life is in the soul: it is therefore beyond speech and writing, since these are external. Since, then, law is that which orders, regulates, moderates, and adorns human life, it is manifest that true law is in the soul. Furthermore: what is true law, unless a certain art or wisdom of living rightly and honestly? But every art and every wisdom is in the soul; wherefore if it has been truly said that true law is the art and wisdom of living rightly and honestly, truly law is, and by its true nature law is, in the soul.

Hence he concludes that law is said more properly and more truthfully to be that which is in the mind than that which is in writing or voice. But of what faculty the act should be law, whether of intellect or rather of will, that it may appear

Note 3. That law is properly used in two ways: First, indeed, for an act, and that either as it is in the legislator, or as it is in the subject. Secondly, for that which remains by way of habit; namely ever preserving its vigor from that time when it was promulgated, until it is either revoked by the Prince, or abrogated by contrary and long-continued custom; on account of which is current that saying of the Jurists: lex semper loquitur, the law always speaks. Now law insofar as it is an act in the legislator connotes and involves several acts specifically distinct, both on the part of the intellect and on the part of the will. First indeed it includes the intention of procuring the common good. Secondly a speculative judgment, by which it is judged that some means are convenient or inconvenient to the common good. Thirdly a practical judgment dictating that these things are to be avoided by subjects, those embraced. Fourthly the will by which the legislator wills certain things to be done or not done. Fifthly the very act of will whereby the same legislator wills to oblige subjects to the observance of his law. Sixthly finally the act of imperium by which he commands such observance.

But insofar as law is taken for the act which is in subjects, it includes, first, the act of the intellect judging that it is necessary and fitting for itself to observe the law. Secondly, the act of the will, whereby it freely wills and accepts the observance of the law.

Hence a controversy is moved among theologians, in which of all these acts the nature of law properly consists: for there are those who teach with St. Thomas that law consists essentially in the act of intellect alone. Some judge with Gerson, book 2 De potestate Ecclesiastica, consideration 13, that the nature of law is to be constituted in both acts, of intellect and of will. Common, however, among the disciples of the Subtle Doctor is the opinion that it must be placed precisely in the act of will alone. Which opinion, before it be confirmed, let

First Conclusion. — Law in general is rightly described as a persevering rule of human actions, implanted or prescribed, for the sake of the common good, by him who bears the care of the community and holds supreme authority over it, implanted, obliging to something to be done or omitted which is consonant with right reason.

It is called, 1. a Rule: because law formally and per se indicates what is to be done and omitted, in which respect generically it agrees as it were with synderesis and conscience; for these too are rules. — 2. Persevering, that law may be distinguished from a simple mandate and precept, which at the pleasure and will of the one commanding is taken away; for since law draws its origin from the first rectitude and truth, which is God, and since the first truth and rectitude is by its nature immutable, law likewise ought by reason of itself to involve a certain immutability and perpetuity, although sometimes it may be subject to change, whether by reason of the matter to which it is applied, or by reason of the end on whose account it is enacted: thus the ceremonial and judicial laws of the Old Law ceased and were revoked upon the advent of the New Law: the former indeed, because since they were shadows and figures of things to come, upon the advent of the truth they ceased; the latter, however, because since they had been prescribed for a people still enslaved to servitude, they ought to cease at the presence of the Evangelical Law, whose yoke is sweet and burden light: especially since it was prescribed and promulgated out of love, and out of love is to be fulfilled. — 3. Of human actions: for although Angels can be bound by law and precept, and constrained to something to be done or omitted, still we do not here institute discourse about angelic actions, any more than about the natural and necessary actions of man, since those cannot be directed to honesty. — 4. Implanted or prescribed: that both natural law and positive, divine,

Ecclesiastical or political laws are included under this definition. — 2. It is added on account of the common good: since the end of law is the felicity of the commonwealth, it is not lawful to bend it to private advantage. Hence it has rightly been laid down that the scope of laws is honorable utility: for neither God nor the commonwealth has conferred power upon superiors for any other end than that by enacting laws they may procure the common good. Hence this is the difference between a king and a tyrant, that the former seeks the public, the latter private advantage in his administration and governance. — 3. It is implied that it belongs to him who has the care of a community and obtains authority and jurisdiction over it: for he who compels others to comply and obey must necessarily exercise supreme power over them; which power, namely, in the Legislator is ordered to the governance of the community, and is distinguished from private and economic power, which resides in the head of a private family, e. g. in a father with respect to his sons, a master with respect to his servants, to whom he can give domestic precepts, but not prescribe Laws. Therefore that legislative power must extend to some community. It is also necessary that it be supreme: for jurisdiction within a community does not suffice for enacting and prescribing Laws: for it is found limited in most cases for the external forum, e. g. in ordinary judges and subordinate superiors, to whom indeed the authority of political governance belongs, yet not legislative power. — 4. Finally there is subjoined obliging or to do something, etc., so that Law may be distinguished from admonitions, exhortations, counsels, instructions, etc., which induce no obligation but only direction; Law, however, not only directs but also obliges to what is right or consonant with right reason; not indeed solely and simply to the just, because law pertains not to the matter of justice alone, but of other virtues as well. It is likewise distinguished from permission, because permission properly is not an action of law, but the negation of action, except insofar as it binds and restrains others from placing an impediment to the thing permitted.

All these, or at least the principal parts of the definition, will be examined more thoroughly below, so that the nature of Law may appear more clearly.

Second Conclusion. — Law is formally an act of the will, presupposing an act of the intellect whereby the legislator judges the matter of the law to be suitable to be decreed under obligation. This is the teaching of the Doctor in 1. d. 11. n. 2, where he says: I say that certain general right laws dictating things to be done are fixed by the divine will, and not indeed by the divine intellect, so as to precede the act of the divine will. By these words the Doctor plainly signifies that divine Law is to be formally placed not in the act of the divine intellect, but of the divine will: but the same must be said in like manner of human Law, Civil, and Ecclesiastical, on account of the parity of reason: therefore the Doctor holds that every Law must be constituted in an act of the will.

Proof First. In that act must the ratio of law be formally constituted which Sacred Scripture customarily uses to signify and express law: but Sacred Scripture ordinarily signifies Law by an act of the will: therefore in that act the ratio of Law is to be placed. The major stands: the minor is proved from that verse of Psalm 39. In the head of the book it is written of me that I should do thy will: O my God, I have desired it, and thy law in the midst of my heart. And Ps. 102. He made known his ways to Moses, his wills to the children of Israel, that is, his Laws and precepts. And 2 Machab. 1. May he give you all a heart to serve him, and to do his will, that is, that you keep and fulfill his Law. — It is confirmed from the fact that civil laws are said to be the pleasure of Princes: for in lib. 1. ff. De Constit. Princip. it is said: What has pleased the Prince has the force of law. Hence St. August. De Civit. Dei, lib. 6. The pleasure, he says, of Princes served instead of laws. Moreover Aristotle in the Rhetorica, c. 1. affirms that law is the common consent of the city: and Cicero, lib. 1. De Legibus teaches that lex was so called from election: but pleasure approved by consent, and what proceeds from election, implies an act of the will: therefore it is to be placed in an act of the will.

Nor does it avail to reply, with the Thomists, that the aforementioned testimonies intimate indeed that Law is an act of the will; not elicitive indeed, but only connotative and presuppositive; such that there is no Law which does not suppose or connote some act in the will of the legislator; yet that it is not to be formally placed in that act of the will. — This reply, I say, appears utterly groundless: both because the aforementioned testimonies simply and absolutely call Law an act of the will, while they name it either will, or pleasure, or consent, or election; and because the will rather presupposes an act of the intellect than the intellect an act of the will, especially in those operations which must be formed not only inwardly but also brought forth outwardly through the application of the exterior faculties, which certainly pertains to the will, not to the intellect.

The same is proved by theological reasoning: To that faculty does the ratio of law essentially belong which pertains to ordaining to an end; but to ordain to an end belongs to that faculty to which the end itself belongs: yet the attainment of the end pertains only to the will: therefore, etc. The major stands, for law is nothing else than a kind of guidance whereby rational creatures are led to their end as it were by a straight path. The minor also is evident; since the object of the will is the end itself to be attained; for end and good are convertible with each other; but good pertains to the will, as truth to the intellect. — Furthermore, the office of Law, and its proper ratio whereby it is distinguished from other rules of human actions, consists in the obligatory decree whereby subjects are moved to act rightly, or to elicit an operation conformable to the Law: but to move to the exercise of an operation, in order to some end, pertains to the will; because, as was just said, the object of the will is the end, which is the first principle in things to be done: therefore law pertains to the will. — Finally, to that power does the act of law essentially belong to which pertains being the rule of human actions: but the will is itself the rule of human actions: therefore, etc. The major is evident; for Law is essentially a rule and measure of human acts. The minor also is evident: since the divine will is the first rule to which all the acts of rational creatures ought to converge, that they may be judged right and perfect: according to that oracle of Christ the Lord in Matthew 5. Be you therefore also perfect, as your heavenly Father is perfect: but the will of Prelates and Princes is the second rule of the rectitude of these same actions, and a certain participation of that divine will: therefore, etc.

What the Thomists bring forward against this assertion proves only the second part of our Conclusion; namely, that Law presupposes an act of the intellect whereby the Legislator judges the matter of the law to accord with the community, for which reason law is sometimes expressed in Sacred Scripture under the name of light; thus Psalm. 4. The light of thy countenance hath been signed upon us: Psal. 18. The commandment of the Lord is lightsome, enlightening the eyes. Prov. 6. The commandment is a lamp, and the law a light, but light and illumination pertain to the intellect; since illumination in spiritual things is nothing else than the manifestation of truth, according to that saying to the Ephes. 5. All that is made manifest is light: and accordingly law implies and presupposes an act of the intellect; wherefore St. August., lib. De libero arbitrio, c. 1. calls Law the highest reason, which must always be obeyed.

For reason is necessarily required for the enactment of law, that it itself may be just and prudent; and so it also in its own way directs subjects through the intimation and signification of the enacted law; yet the proper direction of law, whereby it takes effect through the imposition of obligation to do or omit something, must be traced back solely to the act of the will: whence the will itself also in a manner illuminates and instructs; for which reason St. Anselm, lib. De voluntate Dei, cap. 4. says, the will of God is the teacher of the human will, inasmuch namely as that divine will objectively set before creatures using reason shows them what their will ought to embrace and what to shun, just as the hand of a statue on the road points out which way one must go. — To these considerations is added Cicero, lib. 1. De legibus, where treating of the principles of right, and writing in accordance with the opinion of the Ancients on the definition of law, says: Law is the highest reason implanted in nature, which commands what should be done, and forbids the contrary. And although these words seem to be said of the natural law alone, nevertheless they can be adapted to the establishment of any other law. Whence he subjoins: That reason, when it is confirmed and completed in the mind of man, is law; and hence they judge prudence to be law, whose force is such that it commands right doing and forbids wrongdoing. Hence shortly afterwards he celebrates in splendid fashion the dignity of reason, and of man endowed with reason, in these words:

Animal hoc providum, sagax, multiplex, acutum, memor, plenum rationis et consilii, quem vocamus hominem, praeclara quadam conditione generatum esse a Supremo Deo. Solum est enim ex tot animantium generibus, atque naturis particeps rationis et cogitationis, cum coetera sint omnia expertia. Quid est autem, non dicam in homine, sed in omni coelo, atque terra, ratione divinius? Qua cum adolevit, atque perfecta est, nominatur rite sapientia. Est igitur, quoniam nihil est ratione melius, eaque et in homine et in Deo, prima homini cum Deo rationis societas. Inter quos autem ratio, inter eosdem etiam recta ratio communis est. Quae cum sit lex, lege quoque consociati homines cum Diis putandi sumus. Inter quos porro est communis legis, inter eos communis iuris est. Quibus autem haec sunt inter eos communia, eiusdemque civitatis habendi sunt. Si vero iisdem imperiis et potestatibus parent, multo etiam magis parent huic coelesti descriptioni, mentique divinae, et praepotenti Deo. Unde etiam universus hic mundus una civitas communis Deorum atque hominum est existimanda. Et quod in civitatibus, ratione quadam, de > qua dicetur idoneo loco, agnationibus familiarum distinguuntur status, id in rerum natura tanto est magnificentius, tantoque praeclarius ut homines Deorum agnatione et gente teneantur.

Haec Cicero.

From these considerations therefore it becomes manifest that although law consists principally in an act of the will, nevertheless it presupposes the act of the intellect illuminating and directing the will itself in establishing those things which are consonant with right reason and useful to the public good.

The present Question is an appendix and explanation of the former; in it, namely, certain parts of the definition of law are set forth more clearly, and are established by ampler discussion and declaration, in so far as, by explaining the conditions of law which pertain to its proper notion, its genuine constitutive difference may the more easily be made known. Wherefore

Note 1. It is certain that law must necessarily be brought to bear upon and directed to someone, or to some persons; for St. Paul says to the Romans 3: We know that what things soever the law speaketh, it speaketh to them that are in the law: therefore any law whatever essentially connotes some relation to those to whom it is prescribed; and consequently, in order to explain its notion, the term of this relation and ordination must necessarily be declared.

That this may appear more plainly, it must be observed that man can be regarded under a threefold aspect and relation: namely, either in himself, and with necessary respect to God — for instance if we suppose only one man in the world; or to other men in general; or specifically to those with whom he lives in society. In the first consideration man is ruled by the natural law; in the second by that which they call the law of nations; in the third truly by the civil law, which prescribes the reason of things to be done or avoided, that a peaceful and whole society may be preserved.

Moreover it is evident that every law must be directed to man as to its connatural term; since inferior creatures are not capable of laws properly so called, inasmuch as they are incapable of moral acts, which ought to be directed and regulated by law. And although Angels are capable of receiving and fulfilling the divine law, nevertheless no mention is now made of them, especially since we undertake to explain those laws which pertain to ordering man toward his natural or supernatural end. Hence there remains only to be determined whether it is of the reason of law that it be prescribed for some multitude, or whether it can also be directed to one single person.

Note 2. Community can be distinguished as twofold: one indeed from nature, the other from institution. Natural is that whereby men agree together in the same rational nature, which is ordained to society and intercourse; for Man, as Aristotle says, is an animal born and apt for society: but the latter is the political or mystical conjunction of men in the same congregation and same assembly. To the former community pertains the natural law, which is proposed to each man by the light of reason; because it is not borne to each and every man in particular and individually, as such he is, e. g. Peter or

Paul, but in species, and inasmuch as he is man. The latter community can be subdivided into two kinds: one indeed Ecclesiastical, instituted not by human but by divine right; because it has been ordered by God Himself under some head designated by Him, and with some union toward a supernatural end. Such of old was the Synagogue of the Jews, now truly the more excellent Catholic Church, which was instituted by Christ the Lord Himself not for one people or another only, but for the whole world, and ordered by the same with certain laws and sanctions, under the obedience of one head acting in the place of Christ the Lord Himself. To a community of this kind divine positive laws per se first pertain: as the laws of the Old Testament were prescribed for instituting the Jews, and the law of grace of the New Testament was promulgated for the universal Church, for forming the worship of God and the right instruction of the faithful. To the same likewise belong the Canonical laws, although not all are constituted for the universal Church, but according to the intention or power of those who enact them. Another community is Political, namely that which is an assembly of men associated together by human right in order to some natural end, joined under some head; for which reason Aristotle said in Book 3 of his Politics, chapter 10, that a city is the multitude of citizens having among themselves a moral bond under one principal moderator. — Which is again distinguished by the moral Philosophers, and by the jurists, into perfect and imperfect.

A perfect community is called that which is capable of political governance, or which suffices to itself in this order, as Aristotle asserted in book 1 of his Politics, chapter 1, that the city is a perfect community; and with stronger reason the kingdom, of which the city itself is a part, will be a perfect community. That community is called imperfect which does not suffice to itself, and in which the individual persons are not gathered together as principal members to constitute one political body, such as the household, over which the father of the family presides: for such a community, speaking per se, is not governed by its own power of jurisdiction, but by dominative power: and thus, according to the diversity of dominion, it participates in a diverse manner of commanding respectively toward diverse subjects; for the right, or quasi dominion, of the father of the family over his wife is one thing, another over his sons, another over slaves and servants; whence neither does it have perfect unity, or uniform power, nor does it even participate properly in political regimen: and therefore it is called an imperfect community.

Note 3. It is equally certain that Princes can establish laws and edicts concerning tributes and revenues to be justly paid to them by their subjects; which indeed the King of kings Himself approved by His own oracle in Matthew 22, saying: Render therefore to Caesar the things that are Caesar's. Just, I say, are those laws, because although they immediately regard the utility and advantage of the Prince to whom tributes are paid, yet remotely they look to the common good; because the more the Prince abounds, the more easily can he repel the enemies of the commonwealth, and relieve his subjects, lest, war pressing hard or some grave necessity and calamity impending, they be harassed by unwonted subsidies. Wherefore Christopher Marcellus, in the oration which he delivered at the fourth session of the Lateran Council under Julius the Second, aptly said: If there be no resources for the Prince, he cannot protect the city, nor declare war, nor preserve peace, nor guard himself within his walls. Hence tributes, the treasury, mints, payments, rents, pensions, taxes must be instituted by the Prince, as is fitting; since these are not poured back into the good of the Prince alone, but into the utility and advantage of the Commonwealth. But whether those laws be just whose utility and fruit redound to the advantage of the Prince alone, must here be determined. These matters having been premised, three things occur here to be determined: First, whether law must of necessity be prescribed to some whole community, so that it cannot be directed to particulars. Second, whether it is ordered per se to the good of the community. Third, whether the Prince can justly enact laws which conduce only to the private good of individuals.

First Conclusion. — It is of the essential reason of law that it be prescribed for some entire community.

The truth of this Conclusion appears especially from this, that law is distinguished from precept in this, that a precept is prescribed to one, law to all: inasmuch as the former regards private direction and ordering of a part, the latter public governance and the moderation and administration of the commonwealth. Moreover it is proved: first indeed by a kind of induction; for the eternal and natural law does not befit one man alone, but is traced in the hearts of all: Likewise the divine law, both old and new, were prescribed to communities, the former indeed to the Jewish people, the latter to the Church universal and propagated through the whole world. The same is evident concerning the civil law; since in book 1 of the ff. De legibus it is said: law is a common precept: ff., same title. Rights are constituted not for individual persons, but generally. The same is evident concerning the Canonical laws; for the Canons and decrees published by the Fathers are said to be public laws. Hence Gregory IX. in the proemium of the Decret. says: Therefore law is set down, that noxious appetite be limited by the rule of right, whereby the human race may be formed to live honestly. Wherefore in 1. ff. De legibus, the definition of law is handed down in this manner: Law is a common precept, the counsel of prudent men, the correction of offenses which are contracted voluntarily or through ignorance, the common pledge of the commonwealth.

It is proved secondly both from this, that law is the principal act of political or royal prudence, whereby it looks per se first to the good of the whole commonwealth or community to which it is prescribed; and consequently it is ordered not to one person only, but to the whole community; and also because, as will appear within, it is of the reason of law that it be perpetual: but no particular person, in this mortal state, for which especially law is prescribed, can be perpetual: therefore law, formally taken, cannot be prescribed to him, but to the community: which is held to be perpetual in so far as it perseveres through continuous succession.

You will object 1. In Canon law law is distinguished into private and public: and the Canons indeed, cap. Licet, de regularibus, and cap. Duce sunt, will the latter to be prescribed to a community, the former truly to a private person. The same likewise is handed down in Civil law; for the Instit. De iure naturali, gentium, et Civili. divide the laws of princes into general ones, which bind all, and personal ones, which are not drawn into precedent, because the princes do not will these: therefore it is not of the reason of law that it be enacted for the whole community.

I answer, by the private law in those Canons is understood a vow conceived under the special inspiration of the Holy Spirit, or divine inspiration itself, which is called a law improperly and metaphorically: because it is written in the heart, and impels and obliges toward the fulfilling of what was promised by the vow, after the manner of a law. But to the text

Institutes says that by personal law is understood that which is borne in favor of, or in punishment of, some person and his successors, or whose execution pertains to that person; but from this it is not licit to conclude that law is not prescribed to the community respectively, that is, for them as members of the community, and for the common good, at least mediately; inasmuch namely as it benefits the common good that the merits of some member of the republic be endowed with privileges, so that others may be thereby spurred and kindled to promote the good of the republic itself through outstanding deeds and diligent works.

You will object 2. Law is the rule of man's moral operations: but not only communities of men, but also individual men have need of this rule, that they may be directed to the end prescribed for them: therefore law of itself does not imply respect to the human community alone, but also to individual men considered singly and individually. It is confirmed. Law is directed most of all to that person by whom it ought to be fulfilled: therefore it is directed rather to a true person than to a fictitious one; for fiction always supposes the truth which it imitates: but the community is a fictitious person; whereas each particular man is held to be a true person: therefore with stronger reason law is directed to individual men than to the whole community.

I answer, that law is not called common precisely because it is prescribed only to the community as community, and as a certain mystical body considered abstractively: but because it ought generally to be proposed as to be kept by all the members of that mystical body for which it is set forth as the rule of right acting. By this reasoning the response to the confirmation is also clear: for law is proposed generally, so that it may pertain to all and each according to the exigency of the time: whereby it is true that it is directed more to true persons than to fictitious ones. In one word, law according to its prescription and designation regards the whole community immediately: but according to execution it bears directly upon the individual members of that same community; and thus it is directed more to singular persons than to the community itself.

You will object 3. When law is borne for the community, either it obliges the community alone as such, or it also comprehends the individual members of that same community: if the first, then the community conducts itself as a particular person, and thereupon law could be directed to one person only: if the second, it is rightly concluded from this too that law can be borne for one alone; if indeed it so benefits it.

I answer, that law is ordinarily borne for the community not collectively, but distributively: namely for this reason, that it be kept by all and each of the community, with an accommodation distributed according to the condition of the law. Nevertheless sometimes law can be borne upon the community itself, as community: namely by commanding, or prohibiting some act, which ought to be exercised by it alone as community, and not by its individual members considered separately, as is evident from the statutes and fixed laws by which the superiors and prefects of Congregations, Universities, Chapters, and Colleges are at times bound to perform certain things concerning the public and common administration of such a body committed to their direction.

You will object 4. Some precept does not seem to be distinct from law: but a precept can be prescribed to one person only: therefore also law.

The minor is evident. The major however is proved: for some precept can be prescribed on account of the common good, and from the power of governing the republic, and of ordering its individual members to their due end: but in this the reason of law especially prevails: therefore, etc. — I deny the major, for precept and law are distinguished from one another, and if perhaps not physically, and as to the natural species of acts, at least they are distinguished morally: namely because law has other conditions than precept: for although every law is a precept, yet not every precept is a law, but it must have special conditions by which it is distinguished from a precept. First, indeed, a precept, although it can be prescribed to the whole community, does not necessarily require this, but can be imposed upon a particular person: whereas law always necessarily regards a community of persons, as has been proved. Second, a precept expires with the death or removal of the one imposing it, even if it be prescribed absolutely and without any limitation of time; but law does not cease by the death of the legislator, since by its nature it demands to be perpetual. Third, a precept can be imposed by any superior whatsoever; but law cannot be borne except by him who obtains the supreme and legislative power either from God or from the republic; whereupon the reason of precept and of law is far different.

Second conclusion. — It belongs to the nature of law that it be prescribed on account of the common good.

Proof, first from distinction 4, c. Erit autem lex, where it is read: No law ought to be written for private advantage, but for the common utility of the citizens. Which certainly is drawn from St. Isidore, book 5, Etymologies, and this accords with the sanction of the Twelve Tables: The safety of the people is the supreme law. It is confirmed from St. Basil, Homily 14 on the beginning of Proverbs, not far from the beginning, where he said: If kingship is legitimate power, it is clear that he is rightly governed by precept and chosen by law; who indeed is truly worthy of this appellation, holding much weight and account, inasmuch as he regards what is useful to all in common, and ordains things not to the mark of his own advantage. And there he adds: In this the tyrant differs from the king, that the former regards and protects his own interests in whatever way: the latter seeks only to provide for his subjects. — It is confirmed moreover from the consensus of all profane authors, most especially Plato, dialogue 1, On Laws, where he says that legislators ought to establish laws for the sake of the common city. Likewise Aristotle in the Politics, chapter 1. Laws, he says, are to be ordered to the common salvation of the people. Similarly Cicero, who in book 1, On Laws, says: Laws were established to be instituted for the safeguarding of the republic.

Reason likewise lends its support. First indeed, because public power is of itself ordered to the public good: but all law must emanate from public power: therefore it must be ordered to the public good. — Then, every law is either from God the legislator, or from man: if from God, it is ordered to the common good; because it is either from God as author of nature, or from the same as author of grace: but in both ways it is ordered to the common good, namely to eternal beatitude, in which men enjoy their ultimate end. If from man, it is likewise directed to the common good: for kings and princes are not lords, but ministers of that kingdom, according to that of Wisdom 6: For when you were ministers of his kingdom, you judged not aright. And from that of the Apostle to the Romans 13: For they are the ministers of God in this very society: therefore they do not possess the power of establishing laws except for the common good: since indeed all power, which they exercise over subjects, is either from God or from the people: if from God, it is clear that it is conferred on account of the common good, which God chiefly intends: if from the people, the same is evident; for just as all confer it, so they confer it for this end and with this mind, that it be exercised for their public good, and not for the private advantage of the Prince alone: whence in the Eighth Council of Toledo, chapter 10, it is prescribed that he who is elected king swear not to look to the advantage of his own right, but to look to the welfare of his fatherland and his people. — Finally, this truth is evident by induction; for the natural law tends of itself to the common good of the whole of human nature: divine positive laws are ordered to the glory of God and the utility of men, according to that of Isaiah 51: A law shall go forth from me, and my judgment shall rest for a light of the peoples. Human laws also, both civil and Ecclesiastical, are ordered to the common good; otherwise they would not be held to be true laws; for the power of enacting laws is not granted to men, whether by God or by the republic, that they may use it at their pleasure and without reason; for even that most ample power conceded to the Apostles was given unto edification, and not unto destruction, as St. Paul teaches, 2 Corinthians 10. Wherefore Legislators ought to use that power for attaining the end of law; namely the good of the republic and the public felicity.

You will object 1. Many are the laws which are ordered to private good only, such as the natural law of preserving one's own life, even with the loss of another's life: likewise the law of giving alms to the poor, which regards only their particular utility: such also is the law of fraternal correction, which regards the amendment of a particular man: finally such are the Ecclesiastical laws concerning the reception of the Sacraments, for instance the making of annual confession and the receiving of sacred Communion at Easter. It is confirmed: even if there were no republic at all, and only one single man existed, the law of nature would no less prevail in him; for while the first Parent was alone, he was not without law, since the natural law had force in him: but such a law then could not be ordered to the common good, because then there was no society of men, nor any republic: therefore, etc.

I answer, granting the antecedent, denying the consequence: for it is one thing to speak of the proximate matter about which a law is concerned, another thing concerning the formal motive on account of which it occupies itself with such matter; I confess indeed that the proximate matter, about which the aforementioned laws in the objection are immediately concerned, is a particular good; nevertheless they are not occupied with it except on account of the motive of the common good which the law regards of itself first: for it concerns the republic to preserve the life of any citizen whatsoever; otherwise the republic itself would be extinguished, inasmuch as it coalesces only from private persons: it equally concerns it that citizens not be in need, otherwise they would be in danger of life, which pertains to the good of the republic. Whence although the law concerning making alms regards the private good of a particular person, as proximate matter; nevertheless it orders the whole of it into the common good, to which it pertains that the republic nourish its members, lest plagues or thefts rage in it. The same must be said of fraternal correction, which regards the amendment of the particular life of man for this reason only, that vices be eliminated from the republic: for that society cannot long stand, in which vice is praised or dissimulated, nor eliminated.

The same also must be said of the laws of the Sacraments, which although they regard a particular good, namely eternal salvation of every believer; nevertheless they are ordered of themselves first to the common good, namely to the worship of God, which is the ultimate end of all men, and the common good of the whole human nature, in which all men communicate. In confirmation I say, that even if there were no commonwealth actually, some society of men would be no less possible: and since man is a social animal, the natural law regards him insofar as private in such a way that it also regards him insofar as he is aptly born for society, and community; and therefore that law although it may regard the particular man immediately, as the subject in which it resides; nevertheless it inheres in him for that end, that it order him toward rightly instituting society with others who either exist, or can exist. Hence Adam was alone with the law in such a way that nevertheless by his nature he sought a companion.

You will object 2. If every law essentially required to be ordered to the common good, it would follow that, the common good and public utility ceasing, the vigor and obligation of the law would likewise cease; nay rather, the motive of the law ceasing, the law itself also ceases: but such a consequent is false: for although, e.g., someone may certainly know that the Church suffers no detriment from the fact that Peter takes up dwelling and associates with those publicly excommunicated, nevertheless by the common opinion he ought not to dwell with them: therefore laws are not always ordered into the common good.

I distinguish the consequence: that the vigor and obligation of the law ought to cease, if by public authority or something equivalent the motive of the law were declared to cease, I concede: otherwise, I deny: for just as public authority declares that the law obliges, so likewise it is necessary that something public intervene, which intimates that the motive of the law ceases: namely either the judgment of the Prince, or of the whole community, or of the wise men among whom the judgment of the community can be supposed to be deposited: for that the motive of the law cease altogether, it does not suffice that it cease with respect to some particular person, or some few out of the community: but it ought to cease with respect to at least the greater part of the community; otherwise particulars, whom this motive does not regard, do not cease to be bound by the law: e.g., the motive why the Council of Trent declared that clandestine marriages would henceforth be invalid, was that various frauds and evils might be met, which are wont to occur in this kind of marriages. Whence although someone in good faith, and without deceit, contracted a clandestine marriage, since no inconveniences and evils arise from it on account of which clandestine marriages entered into were prohibited, therefore such a contracted marriage does not cease to be invalid; for although the reason and motive of the law ceases in this particular case, it does not on that account cease in the general, to which the particular good ought to yield.

You will say 3. The laws and edicts of Princes by which they prescribe and exact tributes, are truly laws: but those in no way regard the common good of subjects, but only the private utility of the king: therefore it is not of the essence of law that it be ordered to the common good.

I distinguish the minor: that those laws of tributes to be paid regard the private utility of the king as proximate matter, I concede: as the sole end, I deny: for they are ordered to the felicity and security of the republic itself, namely that the King through revenues may both procure soldiers by whom the republic may be protected against enemies, and provide in all things for the common good of the republic itself.

You ask: whether a Legislator not intending the common good of the republic, but led into it by hatred, enacts laws, which nevertheless of themselves tend to the common good — whether, I say, those laws are to be called true and legitimate? — I affirm, because that perverse intention of the legislator is merely personal, nor does it redound into the act insofar as it regards the common utility; for just as the perverse intention of a judge does not affect the validity of the sentence, provided it be not against equity; and just as the perverse intention of a minister does not hinder the Sacrament, so long as it be not against its substance, namely if in confecting the Sacrament he indeed truly intend to do what the Church intends, but propose to himself some perverse end, namely either gain, or something else perverse; so in the present case the common good is to be regarded in the law itself, and not indeed in the very intention of the legislator. Which opinion St. Augustine plainly hands down, book 1. De arbitrio, writing: A law enacted for the sake of protecting the people cannot be accused of anyone's lust; since he who enacted it, if he enacted it by the command of God, that is, what eternal justice commands, could have done it devoid of all lust. But if he decreed this with some lust, it does not follow from that that it is necessary to obey that law with lust, and because a good law, it can proceed from a good man. He indicates also another reason of this below, writing, that although he enacted the law with lust, nevertheless that law can be obeyed without lust. Wherefore although the legislator sin through defect of good intention, which he ought to have toward the public good; yet because that constitution of itself is ordered into the common good, it suffices that it be judged to have this condition desired for a true and properly so-called law.

You ask 2. When then can a law rightly be judged to be ordered into the common good? — I answer, that any law whatever is thus judged to be rightly and justly ordered, first when it regards either mediately or immediately the glory of God, and conduces to the ultimate supernatural end. Hence all civil Laws are iniquitous, nor do they obtain the reason of law, vigor, and dignity, if they conflict with the ordinance of God or of the Church: whence Can. Non licet, dist. 10. it is thus established: It is not licit for the Emperor, or for anyone keeping piety, to presume anything against divine mandates, nor to do anything which hinders Evangelical or Prophetic or Apostolic rules. And Can. Suscepimus te, it is decreed that Constitutions of Princes are to be postponed to Ecclesiastical laws: but where they have not stood against Evangelical and Canonical decrees, let them be held worthy of all reverence. Hence Pope Symmachus epist. 7. which is to the Emperor Anastasius writes thus: We indeed accept human powers in their own place, until they raise their wills against God: Moreover, since all power is from God, much more therefore that which is set over divine things. Defer to God in us, and we will defer to God in you: Moreover, if you do not defer to God, you cannot use his privilege whose rights you despise. And St. Augustine lib. 11. De Civit. Dei, cap. 21. What justice of man is that, he says, which takes away true man himself from God? From every quarter the law ought to be just. — Second, a law is judged ordered into the common good, while regarding a city, e.g., which is part of a kingdom, it regards more the good of the kingdom, than the good of the city: but otherwise if the contrary happen: for the good of the part is to be postponed to the good of the whole. — Third, that a law be into the common good, it is not required that it conduce to the good of all other kingdoms, but it can be judged ordered into the common good if it be useful to the kingdom to which it is prescribed: for since several kingdoms are not subordinated to one another, nor is one part of another, as a city is part of a kingdom, it is not necessary that where a law is useful to one kingdom, it ought also to profit other kingdoms: nevertheless as much as can be done, the Prince ought to provide lest, by enacting a law useful to his subjects, he harm neighbors, where the utility of both can be procured. Yet if the Prince cannot provide for the good of his own kingdom without some inconvenience to neighbors, he can no less legitimately enact a law which conduces to the common good of his kingdom, even though it be future to the ruin of neighbors; because before all things he ought to watch over the common good of his kingdom.

Third Conclusion. — A PRINCE COULD NOT ENACT JUST LAWS BY WHICH THE PARTICULAR GOODS OF SUBJECTS WOULD SO YIELD INTO HIS OWN PROPER ADVANTAGE THAT THEY BE IN NO WAY, EVEN REMOTELY, ORDERED TO THE COMMON GOOD OF SUBJECTS.

Which indeed is proved first from Scripture, Deuteronom. 17. where the form of the kingdom, and of rendering judgment, is prescribed in this manner: When he shall be constituted (King) he shall not multiply horses to himself, nor lead back the people into Egypt, being lifted up by the number of cavalry.... he shall not have many wives, who may allure his soul, neither immense weights of silver and gold. But after he shall have sat upon the throne of his kingdom, he shall write out for himself this Deuteronomy of the law in a volume, taking the copy from the Priests of the levitical tribe, and he shall have it with him, and shall read it all the days of his life, that he may learn to fear the Lord his God, lest his heart be lifted up in pride above his brethren, nor decline to the right hand, or to the left, that he himself and his sons may reign long over Israel. To which divine edict kings have consented according to reason. — Hence 3. Kings cap. 21. God severely took notice of Achab, and Jezabel because they had occupied by force the vineyard of Naboth the Jezrahelite; and Ezechiel 34.¹ Pastors are gravely reproved, under which name all superiors are designated, because they feed themselves: To the Pastors of Israel who fed themselves: Are not flocks fed by Pastors? You ate milk, you were clothed with wool, and what was fat you killed: but my flock you did not feed. What was weak you did not strengthen, and what was sick you did not heal, what was broken you did not bind up, and what was cast away you did not bring back, and what was lost you did not seek: but with harshness you ruled over them, and with power. He has a similar reproof against Princes cap. 22. Hence cap. 46. God established: The Prince shall not take of the inheritance of the people by violence, and from their possessions: but from his own possession he shall give an inheritance to his sons.

The same truth is proved from the Eighth Council of Toledo cap. 1. in which it is held that while the Christian Kings of the Goths instituted and put on the principate, they ought to be such as are described in these words: They shall be assertors of the Catholic faith, they shall be modest in acts, judgments, and life, they shall be sparing rather than extended in provisions of things, that neither by force nor faction of writings, or definitions of whatever kind, they exact contracts from subjects, or intend them to be exacted: they shall be not looking to the advantage of their own right, but consulting their fatherland and people. — Something similar was established in the Council of Paris convened around the year of Christ 829. under Louis, and Lothaire Emperors; where among those things which are acknowledged to pertain to the justice of the King, this holds the first place, To oppress no one unjustly by power: but when a Prince converts the goods of subjects into his own private good, and in no way into the public, that one oppresses subjects by power: therefore, etc.

St. Bernard expressly expounds this truth lib. 3. De Consideratione to Eugenius the supreme Pontiff, cap. 3. where he says: A superior, and singularly: to what end? you need consideration, I say to you: Is it that you grow over your subjects? By no means, but that they grow over you. They constituted you Prince, but for themselves, not for you. Otherwise by what pact do you reckon yourself superior to those from whom you beg the benefice? Hear the Lord: Those who have power over them are called benefactors. But that is said of those who are outside. What is it to us? You would be called mendaciously, unless you were so beneficent that you intended to preside over benefits. It is the part of small and abject minds, not seeking advancement from subjects, but their own profit.... That saying repeated again and again belongs to no mean glory: I require not the gift but the fruit. And below cap. 5. he adds: What unworthy thing to you, than that holding the whole, you be not content with the whole, unless you make certain minutiae and meagre portions of that universality entrusted to you, as though they were not yours, but somehow you were of the whole? Where also he endeavors to remind you of the parable of Nathan, concerning the man who having many sheep coveted the one which belonged to the poor man. To this also returns the deed, nay rather crime, of king Achab, who held the sum of things, and coveted one vineyard. May God turn away from you what he heard: you killed and possessed.

This truth is likewise confirmed by a threefold argument, which the author of the book De regimine Principum, book 3, chapter 11, supplies. First, the true Prince must imitate God, by whose power he commands: but God so governs men for their salvation that he acquires nothing for himself from it; therefore the Prince ought to seek the common good, and not his own private good. Second, the Commonwealth is not the Prince's, but the Prince belongs to the Commonwealth, in accordance with that saying of Seneca in book 2 De Clementia: Know that your Commonwealth is not yours, but that you belong to the Commonwealth. But he who is wholly devoted to the Commonwealth is bound to procure its good only, and not another's; therefore, etc. Thirdly, finally, just as a Bishop, as such, is bound to procure, so far as he can, the salvation of souls, and to give himself wholly to securing their eternal good — whence that well-known saying: What Christians are, is for themselves; what Priests and Bishops are, is for you — so the Prince, by like reason, ought to watch over the temporal good of his subjects. Therefore just as a Bishop would deserve blame who, despising or neglecting his pastoral solicitude, gave himself wholly in retirement to contemplation, even though he proposed to pursue thereby his own private salvation; so also a Prince who directed his efforts to his own advantage, and did not devote himself to procuring and establishing the common good, would seem above all to deserve blame.

You will say 1. To the people of Israel demanding a King, in 1 Kings, chapter 8, Samuel answered with the voice of God: This will be the right of the King that shall reign over you: he will take your sons, and put them in his chariots, and will make him horsemen, and runners before his chariots, and he will appoint of himself tribunes and centurions, etc. Your fields also, and your vineyards, and your best oliveyards will he take, and give to his servants, etc. Therefore the Prince has the right to convert the goods of private persons to his own benefit by laws and edicts.

I deny the consequence: for the law promulgated there is not legitimate royal law, but tyrannical, introduced by the violence of men and the insolence of perverse Princes, as appears from the very context: since it is related that when the people sought a King from Samuel, The word was displeasing in the eyes of Samuel; and when he had consulted God about this matter, the Lord, indignant, answered Samuel: Not you have they rejected, but me, that I should not reign over them, etc. Wherefore there is no doubt that God, in punishment of the rebellion of that people, set before them in place of the King whom they demanded a tyrant and his violent rule, as Clement of Alexandria explains in book 3 of the Paedagogus, chapter 4: When a king was asked for the people, he says, the Lord promises not a human ruler, but threatens how he will deliver unto them one given to insolence, a tyrant. And St. Gregory the Great, on the aforesaid words, says: When, he says, the right of the King is foretold, doubtless it is shown in the person of one carnal ruler what carnal men in general will do out of tyranny, not what the elect ought to imitate. For in the same history of the Kings we read that when King Achab took away Naboth's vineyard, he incurred the wrath of almighty God; but here, when the right of the King is foretold, fields, vineyards, and the best oliveyards are said to be taken away. Since, therefore, it is here foretold that which was committed there once only, it is shown that it is commanded not by divine judgment.

You will object 2. That saying of Christ in Luke 22: The kings of the Gentiles lord it over them, and they that have power over them are called benefactors: by which words he seems to establish a distinction between royal power and that which he himself was about to institute, attributing to civil power this authority, that they lord it over their subjects and are truly their Lords: but the Lord can convert the goods of his servants to his own benefit; therefore with stronger right can Princes enact laws and edicts whereby the particular goods of subjects are converted to their own and private uses.

I answer first, that in that passage there is no question of the rule of all kings, but only of the ordinary administration of the kings of the Gentiles, who, since at that time all were worshippers of devils, and scarcely any of them had a just administration, none, I judge, would say should be proposed to Christian Princes as a model.

I answer second, that by those words of Christ our Lord rather a manner of reigning is disapproved than approved: since Christ wished to deter his Disciples both from the desire of such rule and from its pattern: for he subjoins: But you not so.

Thirdly, finally, I say, that rather the contrary of what the objection intends can be gathered from that passage: since there the question concerns those Princes who, although they rule over the Gentiles, are nevertheless called benefactors, assuredly for no other reason than because they aimed more at the common good of their subjects than at their own private good.

You insist: Kings truly are lords of their subjects: since they bear rule over them: but a lord can dispose of the goods of his servant for his own private benefit: therefore, etc.

I distinguish the major: they are lords by civil and political dominion, I concede: by despotic and lordly dominion, I deny,

And the minor I similarly distinguish: that a lordly and despotic lord can convert the goods of subjects to his own uses, let it pass: that a political and civil one can, I deny; for the members of the Commonwealth, over which the Prince presides, are citizens and free men, and not servants or captives.

You will object 3. Princes exercise the offices of God: therefore as God refers all things to himself, so Princes can licitly refer all the goods of subjects to their own private benefit. — I deny the consequence; for in order that the inference of him who objects might be legitimate, it ought thus to conclude: therefore as God refers nothing to his own benefit — because, as the Royal Prophet says, Thou art my God, for thou hast no need of my goods — so neither ought Princes refer the goods of subjects to their private advantages; but what they gather from taxes paid, they ought above all to pour back into the utility of those same subjects.

Note 1. That a law can be just, and justly enacted, is able to be understood in a threefold way: namely, either on the part of the object which is commanded; or on the part of the Prince enacting the law; or on the part of the form and manner according to which the law itself is established. First indeed, on the part of the object, a Law can be just and honest in a twofold way: negatively, insofar as what it commands or establishes is not base and dishonest; or positively, insofar as what it commands or establishes is honest antecedently to the law, or at least consequently: because although it may be indifferent of itself, by the law it is referred to a good end, and is constituted in some matter of virtue: for certain things can be established by laws which were antecedently indifferent; for instance, to abstain from a certain kind of foods, to wear garments of this or another material or shape, etc. On the part indeed of the one enacting the law, a Law can be judged just, if indeed he prescribes it out of an affection for justice and honesty; and not led by some perverse and evil motive: and this does not seem necessary for the validity of the law; for, as we have said, a Prince can enact a valid and legitimate law which conduces to the common good of subjects, even though he prescribes it led by hatred of them, or on account of another perverse end. Thirdly, a Law can be understood to be justly enacted with respect to form, that is, as regards the manner required on the part of the law; which manner chiefly consists in three things. First, that it be justly enacted on the part of the end, which is the common good: which occurs when the law is useful for attaining or establishing that end. Secondly, that it be justly enacted on the part of the power; namely, that the Legislator establish nothing beyond what his authority extends to, nor prescribe a law to any others than his own subjects; for the act of agents cannot exceed the power of the agent. Thirdly, that the law be enacted according to the equality of proportion; namely while burdens are imposed upon subjects respectively in just proportion for the common good: for it would be against right reason to burden some subjects beyond measure, without regard to their strength and resources. Hence where the contrary happens, those laws do not bind in conscience, except on account of avoiding scandal, or sedition, and preventing public disturbance: for in these cases every particular man is bound to yield his own right. Yet Suarez notes, lib. 1. cap. 2. n. 16., that for the nullity of a law on this head there is required so great an impropriety and inequality, that it redounds to the common detriment and to a grave and unjust burden of many members of the community: for otherwise, if the law is of itself useful, and the grievance or excess affects only a few, the law will not on that account be wholly null, nor will it cease to bind others: but it will not bind only those as to the excess who are unjustly burdened: that this may appear more clearly,

Note 2. That in order for a law to bind, and be justly enacted, three species of the virtue of justice are desired in its enactment: the first is Legal Justice, whose role is to intend the common good, and consequently to preserve the rights due to the community. Hence a just law is discerned from the end of the common good which it regards. The second is Commutative Justice, to which it belongs that the Legislator command no others than his own subjects: which justice is especially necessary for the validity of the law: for, as we said just now, if a Prince enacts a law for those not subject to him, he exceeds his power, and sins against commutative justice with respect to those to whom he prescribes the law: even if he commands an act honest and useful of itself. Thirdly, finally, there is Distributive Justice, which is also required in a law: in commanding the multitude it distributes, as it were, the burden among the parts of the commonwealth in order to establish its good: and therefore it is necessary that in that distribution it observe the equality of proportion, which pertains to distributive justice; and therefore a law will be unjust if it dispenses burdens unequally. Hence the injustice of a law can be regarded either on the part of the matter, or on the part of the form: indeed on the part of the matter, if it should prescribe things impossible, opposed to divine worship and to natural inclination, and conflicting with the common good and honesty: but on the part of the form it can be unjust either from an end of private advantage, and not of the common good: or on the part of the agent, and from defect of power: or from defect of form, that is, of just distribution. Whether, however, all these things are true, namely that in order for a law to be just, and to be justly enacted, it ought to involve all these conditions, this will be resolved here.

Note 3. A twofold perpetuity is customarily distinguished by the Philosophers: one indeed on the part of the beginning, which they call a parte ante: another on the part of the end, which they call a parte post. But here the discourse is chiefly about perpetuity into the future, from the point at which the law has once been fixed and enacted. Which perpetuity can further be distinguished into perpetuity simply, such as eternity: or into perpetuity in a certain respect, such as long duration of time, which Sacred Scripture sometimes calls an age, and an eternal age. Now the perpetuity of which there is question in the present Question chiefly signifies the stability of the law, whereby it comes about that it has its being with validity and efficacy so firm and permanent, as far as lies in the force of its origin and constitution, that it perseveres of itself forever, or at least for an indefinite or lengthy time. Again, this mode of perpetuity can be twofold: one indeed negative, the other positive. Negative is when a law is enacted indefinitely, and therefore has an indefinite duration, although it can be revoked: after which manner a suspension is called perpetual negatively, which is introduced without a term. But positive perpetuity is said of a law which by its nature or by express words is enacted so as to endure forever, and never be revoked; thus deposition and degradation are said to be perpetual suspension. Whether, however, and what perpetuity is desired for a legitimate law, will be declared below.

These things having been set forth in advance, two points are chiefly to be resolved in the present Question: First, that every law ought to be just. Secondly, that of itself it should endure perpetually.

First Conclusion. — IT IS OF THE NATURE OF LAW THAT IT BE JUST, AND JUSTLY ENACTED, ON THE PART OF THE OBJECT, THE LEGISLATOR, AND THE FORM.

This Conclusion comprises three parts, which are proved together. The first indeed by the authority of the Holy Fathers, but especially of St. Augustine, lib. 1. De libero arbitrio, cap. 5. where he said, To me a law does not seem to be a law which has not been just. And of the same thing it can be understood what he says in the book De vera religione, cap. 31.: The founder of temporal laws, if he is good and wise, consults the eternal law, that according to its unchangeable rules he may discern what is to be established and commanded for the time being. Hence just as the eternal law commands only what is just, because it is justice itself by essence, so true human law ought to be a participation of it, and therefore cannot validly command anything except what is just and honest. This same thing St. Isidore teaches, lib. 5. Etymolog., cap. 2., affirming that a law ought to be honest, just, and possible: the same is reported distinct. Erunt autem lex.

Proof 1. From the end of the law, which is to make men good. Hence Aristotle, 2. Ethicorum, says, The makers of laws, accustoming the citizens themselves, make them good. And lib. 3. Politic., cap. 1. he says, The end of the city is to live well, and to participate in some honesty. And cap. 6. he adds: They think about virtue and vice, whoever have care of well instituting a city.

It is proved also by reason: first indeed: every power of enacting laws is either divine, or emanates from God, according to that of Sap. 6.¹ By me Kings reign, and the makers of laws decree just things: But those things which are from God, says the Apostle to the Romans 13, are ordained: For God, who is supremely good and upright by essence, cannot establish by his laws anything except what is just and honest: therefore neither can other Legislators, who hold power derived from God, and themselves subject to him, not unto destruction, but unto edification. Then, no inferior can bind against the law and will of a superior: but a law commanding a depraved and dishonest act would be against the law of God prohibiting it: therefore no law can oblige to anything base and illicit; for from this it would follow that we have simultaneously two contradictory obligations, and be bound both to do something because human law commanded it; and not to do it, because the divine law prohibited the very same thing. Finally, God cannot licitly be offended: but if some law were to prescribe something forbidden and illicit by God, it would follow that God could be offended impunibly and illicitly; he would indeed be offended, because something forbidden by him was done: and that would be done licitly, because it had been provided and sanctioned by law: therefore, etc.

You will say: There are certain human laws which permit evil: therefore a law can be unjust on the part of the object. — I distinguish the antecedent: certain human laws permit evil, and that which is intrinsically illicit, by establishing that it be lawful to commit it, I deny: they permit it by not avenging nor prosecuting it, on account evidently of some greater good arising thence, and a greater evil to be declined, I concede; but this permission is not evil, but honest and reasonable; for one thing is the evil itself, and another the permission of evil by mere toleration: for although the evil be base and illicit, yet for just causes it can sometimes be tolerated by superiors, lest severity in punishing it be the cause of a greater evil, for instance of the rebellion of subjects: for it is congruent to right reason, of two evils simultaneously unavoidable, to avoid and decline that which is greater.

From these gather that no law whatsoever can be enacted concerning what is impossible simply or morally, that is, exceedingly difficult: then because whatever falls under a law falls in some degree under liberty: namely, insofar as it depends upon it whether it be done, or not done: or whether it be, or not be, as it is commanded or established: but the impossible does not fall under liberty: whence rightly St. Augustine says, lib. De Fide contra Manichaeos, cap. 10.: Who would not cry out that it is foolish to give precepts to one for whom it is not free to do what is commanded: and iniquitous to condemn him for whom there was no power to fulfill the commands? And lib. De Natura, et gratia, cap. 43.: God does not command impossibilities: but by commanding he admonishes both to do what you can, and to ask for what you cannot; which words he took from there the Council of Trent, Sess. 6. c. 11., adding, and I adjure you that you may be able. Which truth at any rate is more safely proved, and sufficient for fulfilling every divine law.

Second Conclusion. — IT IS OF THE RATION OF LAW THAT THE LAW BE STABLE AND PERMANENT, AND ENDURE AND BIND UNTIL IT IS REVOKED; AND ACCORDINGLY IT OUGHT TO BE IN SOME WAY PERPETUAL.

It is proved 1. from the common consensus of the Jurists, who assign especially this difference between a precept given by way of personal command, and one issued by way of law or constitution: that a mere precept expires by the death of the one commanding; but a law is not extinguished by the death of the Legislator. The reason of which difference indeed is sought from the nature of the precept itself and of the law; for since a law is enacted for the community, and for the common good, it seems to be enacted by the Prince in the name of the community itself, and by the authority of the commonwealth itself: and accordingly since the commonwealth always remains, the force of the law also perseveres, even if the Prince dies: but a singular precept is prescribed to some one by a Prince or Superior, that he may have care of it: for a Prince or Superior regards not only the common good, but also the singular good of this or that subject or inferior; and therefore since the precept is enacted insofar as it pertains to the care of individual citizens, which care expires by the death or mutation of the Superior, therefore also upon his ceasing, the precept ceases.

This truth is confirmed by induction; for the eternal law, since it exists in the divine mind, is perpetual and immutable: for although, insofar as it regards creatures, it prescribes laws to them according to their diverse mode of existence, not for all time, but according to a mode defined by God Himself; nevertheless the law once conceived by God according to that mode, on the part of God and in His divine mind, perseveres immutable. Similarly the natural law, which is a certain participation of the eternal law, can also be called absolutely perpetual, both on the part of the mind in which it is written, and on the part of its object; for it forbids what is intrinsically evil, and commands what is necessary in itself: but what is necessary is perpetual; and thus it is said to be immutable by Gratian, distinction 1, at the beginning. The divine law of the Old Testament likewise was perpetual, constantly binding all men until the coming of Christ, and until the Evangelical law succeeded it, for which it was disposing men as toward a more perfect law. In like manner the divine law of the New Testament asserts perpetuity for itself, seeing that it is to endure even unto the end of the world. The same must be said of all laws, both Civil and Ecclesiastical, which ought to be permanent and stable, that they may correspond to the administration of human community, which demands stability and uniformity. Hence laws are said to be as it were the foundations of the commonwealth, upon which it rests unmoved, and perseveres in good and in peace. Nor does it matter that there are very many human laws, both Civil and Ecclesiastical, which are abrogated and changed with the passage of time: for here we do not speak of positive perpetuity, whereby a law nowhere varies; but of negative perpetuity, which lasts so long until it be revoked either by contrary custom or by express command of the Prince; for this perpetuity suffices to distinguish a law from a precept, which is temporal not only negatively but also positively, lasting only unto the life of the one commanding, unless it be renewed and confirmed by a succeeding Superior. — For an easier understanding and confirmation of the foregoing, however, it must be observed with Suarez, book 1, chapter 10, number 7, that any law is said to be perpetual with respect to three things: First indeed with respect to the one enacting it; because the law endures even when he is removed or dies; for a law does not expire at the death of the Legislator; otherwise in a commonwealth the greatest change of human laws would occur, not without great detriment to it. Second, on the part of the subjects to whom it is given: because it binds not only those present who were either born, or inhabit the territory when the law is enacted, but also their successors born afterwards, or at length dwelling there. Third, on the part of the law itself; because once enacted it always endures, until either it be revoked, or its matter or cause be so changed that it ceases to be just.

Conclusion third. — EVERY LAW OUGHT TO BE PRECEPTIVE AND OBLIGATORY; YET THE PRIMARY REASON OF THE LAW ITSELF CONSISTS UNIVERSALLY IN THIS, THAT IT COMMAND.

This comprises two parts, of which the first is common, and is proved:

First indeed, because no species of law can be shown which is not preceptive; taking precept in its wider usage; namely, both for the affirmative and for the negative or prohibitory. For concerning a law directly commanding or prohibiting the matter is manifest: for it plainly bestows prohibition or command. But a Permissive law, whereby something is permitted to be done, also virtually imports a precept; for it commands that what has been permitted not be impeded from being done, in that mode and order in which it is permitted: thus, for example, the law which permits a wife to be dismissed as regards bed and cohabitation on account of adultery consequently commands that this not be forbidden to be done. Similarly a law establishing a penalty or reward infers a precept upon those to whom it pertains, that they render the penalty or reward to delinquents, or to those fulfilling the precept. In like manner an irritant law consequently commands that such acts not be done, nor have any further account made of them. Likewise a law establishing and decreeing what pertains to the moral being of persons or things: put the case that certain persons are irregular, excommunicate, incapable of receiving the fruits of benefices; it consequently forbids that those whom it has made irregular be promoted to orders, nor, once promoted, exercise them; that Sacraments and the suffrages of the Church not be conferred on the excommunicate, nor fellowship be entered into with them. Similarly, that beneficiaries do not receive fruits from which they are deprived by right, and if they have received them, restore them. Finally, a Declarative law contains the precept of understanding the matter just as it itself declares: and a purely penal law obliges either the delinquent to accept and undergo the penalty, or the Judge or Superior to impose and prescribe it.

It is proved secondly: To every law some non-observance of the law is opposed, which is sin: but it would not itself be sin unless the law induced obligation of precept: therefore every law induces this obligation of precept. The major is evident as regards the first part: for what is ordained by the Legislator can be or not be; for things that exist of necessity do not need one ordaining: but things that can be or not be can freely be committed to execution; but to every free execution non-execution is opposed; and therefore to every law some non-observance can be opposed. — The second part of the same major is also evident, both from what has been said, whereby it is established that sin is a violation of the law, and from the fact that Sacred Scripture uses transgression of the law and iniquity for one and the same thing: thus 1 John 3: All iniquity is sin, and sin is iniquity, or as the Greek version of the third chapter has it, It is transgression of the Law. The minor likewise is evident, namely, that there would not be sin in the non-observance of the law unless there were from it an obligation of precept: for universally there is no sin except against some obligation, and therefore against the reason of precept. Finally, the reason of law consists especially in this, that it decree concerning the moral state of persons, or of things, and of human actions: but this decree imports the reason of precept: for to decree concerning a state of things or actions of this kind is nothing else than that the reason of those things or actions be had, or not had, by subjects; but to decree that subjects have, or have not, the reason of such things in acting is nothing else than to command or forbid that subjects so conduct themselves with respect to such things: therefore every law imports the reason of precept.

The second part is similarly proved, namely, that the primary reason of law imports the reason of precept only consequently, and not primarily. It is proved, I say, because a permissive law does not command first of itself, but only permits something to be done licitly, for example, that a wife can be dismissed on account of adultery: but it only consequently forbids that this be impeded from being done. An irritant law first of itself establishes that the acts which it declares null be invalid, nor have any account of them whatsoever in order to the good of the community: but it consequently commands that they not be done, nor be destined to the good of the community. Likewise a law excommunicating ipso facto with the greater excommunication first of itself deprives of the suffrages of the Church and participation in the Sacraments; but consequently it forbids that suffrages be applied for them, nor Sacraments ministered to them. The same must be said of the other laws: therefore, etc.

You will say against the first part: counsel is a law, as Canonists commonly hold, asserting that the law counseling the civil good, which they call consultory, is truly a law, although no one is held bound by it, as Azorius teaches, book 1, chapter 2, last paragraph: therefore it is false that every law obliges in any way and commands. Moreover, the Evangelical counsels are reckoned among the parts of the Law of grace, whence in the chapter Licet, de Regularibus, the counsel of following the religious state is called a Private law: yet this does not oblige: therefore it is not true that every law obliges by precept. Finally, privilege is a private law, as Isidore teaches, 5 Etymologies, chapter 18: yet privilege does not oblige; since he in whose favor it is introduced can renounce it: therefore it is not true that every law obliges by precept. — I deny the consequence; and to the first proof I say that counsels are called laws, not properly; because counsel can be given by any private man, even interiorly, nor does it require the authority of a superior, such as is desired for enacting a law; but improperly counsel is called a law, inasmuch as in the manner of a law it illuminates, directs, and sweetly moves the will to doing or omitting something; although it does not oblige to executing what it counsels. To the second proof I say that under the name of the Evangelical law sometimes the whole Gospel and the New Testament are comprehended: just as the Old Testament is sometimes signified by the name of the Mosaic law; and therefore it is no wonder if the Evangelical counsels are numbered among the precepts of the new Law, not because they are truly precepts and have the reason of law, but only because they are comprehended under the New Testament, which is called the new Law. To the third proof finally, I answer that privilege, although it does not oblige primarily of itself, nevertheless obliges at least consequently, that neither may others impede the use of the privilege, nor may the privileged one himself at times renounce his privilege: especially when the privilege is granted in respect of some common good: such, for example, are the privileges of Clerics, whereby they are exempted from taxes or forensic acts, which private clerics cannot renounce: and therefore they are obliged to use those privileges insofar as these privileges have a certain reason of law, seeing that they are granted in perpetuity, and to many succeeding one another.

You will say 2 against the second part: The first intention of the Legislator is to oblige subjects to execute or omit what he decrees to be done or avoided: therefore likewise every law obliges primarily and of itself. The antecedent is proved: A law is an ordinance whereby a superior ordains subjects to a congruous end: not indeed in being, but in acting; namely, moving their intellect and will by the way of authority: but whoever moves the intellect and will of another by the way of authority to doing or avoiding something, he either commands or forbids, if he act positively: or if he act quasi-negatively, he dispenses and exempts from obligation: therefore the primary intention of the Legislator is to command or forbid by the way of legitimate authority and superiority.

— I deny the antecedent: for, as was said in the proof of the second part, permissive laws, irritant laws, and others of this kind do not import precept first of themselves, but only consequently, nor does the Legislator in prescribing them primarily intend to infer that obligation, that one, for example, should desert a wife caught in adultery and make divorce: otherwise every husband would sin who did not desert such an adulterous wife, which certainly no one will say; for he can licitly cohabit with her, although he is not bound to it; and therefore it is false that the primary intention of the Legislator in prescribing those laws is to oblige subjects to execute what he decrees, but he only consequently induces this obligation.

You ask 1. — How manifold, and of what kind, is the division of law?

Faustus, Bishop of the Manichaeans, distinguishes laws of threefold genus, in S. Augustine, book 19 of the thirty-three which he wrote against him; and to each law he assigns its own prophets:

There are, he says, three genera of laws: one indeed of the Hebrews, which Paul calls the law of sin and death: another truly of the Gentiles, which he calls natural. For the Gentiles, he says, do naturally the things that are of the law, and not having a law of this kind, they are a law to themselves, who show the work of the law written in their hearts. But the third genus of law is truth, which the Apostle, signifying accordingly, says: For the law of the Spirit of life in Christ Jesus hath delivered me from the law of sin and of death.... likewise of prophets, some are of the Jews, some of the Gentiles, some of truth. But concerning those of the Jews no one would ask, for it is known. Yet if anyone doubts concerning those of the Gentiles, let him hear Paul, who writing to Titus concerning the Cretans said: One of their own prophets said: The Cretans are always liars, evil beasts, slothful bellies; and therefore it must not be doubted that they too have their own prophets. Nor yet that truth has its own prophets, both the same Paul signifies, and also Jesus. And Jesus indeed, where he said: Behold I send to you wise men and prophets, and of them you shall kill in every place. But Paul, when he said: The Lord Himself constituted first apostles, then Prophets. — But besides that in this division certain things occur, especially in its first member, which S. Augustine there disproves, this division is also more universal than that which suffices for embracing and expounding all laws. Wherefore, that I may make more distinct satisfaction to the proposed question,

I ANSWER, I distributed Law by its primary division of itself into the Eternal and the Temporal. For every law either is in God or outside God: if it is in God, it is eternal, because God Himself is eternal: but every law which is not in God is outside God; and whatever is so outside God is temporal; for the eternal and the temporal differ as created and uncreated differ; because whatever is eternal is uncreated, and whatever is temporal is created. — Now the Eternal Law is a certain ordination of the divine will, fixedly determining from eternity what the rational creature should do or refrain from doing, that it may attain its due end. — The Temporal Law is that which has been enacted in time by God or by men; and it is just like a participation of the eternal law existing in the divine mind, wherefore it is called law by participation, or participated law. — The Temporal Law is further divided into Natural and Positive. — Now the Natural Law is an ordination of the Author of nature permanently and fixedly determining concerning things illicit and licit, to be done and not to be done, insofar as it is declared by the natural dictate of the intellect as its promulgator.

But whether this definition be legitimate and accurate, we shall determine presently, by inquiring into and resolving what natural right is and wherein it consists.

Positive Law is called that law which is not innate to nature or grace intrinsically, but emanated from elsewhere, namely from some principle extrinsic both to nature and to grace having the power whereby it was posited. On account of this it is called Positive, as it were posited alongside the natural law, or added to it: this the Philosopher defines in Book 5 of the Ethics, chapter 3: The legal, that at first it makes no difference if one have it otherwise; but when it has been posited, it makes a difference. He said, at first it makes no difference by whom it is done, because its obligation is not from nature: but when it has been posited by one having authority, it obliges; wherefore he added: Afterwards, when it has been posited, it makes a difference.

Further, Positive Law is twofold, namely Divine and Human. — Divine Positive Law is that which God made known, posited, and prescribed to men in time; and that either through the ministry of Angels or of men. This again is chiefly twofold: The first is the law of the Old Testament, which God posited and prescribed through the ministry of the Angels to Moses, and through Moses to the people of Israel. The second is the law of the New Testament, which Christ the Lord prescribed, and promulgated partly by Himself, partly through the Apostles.

This division is to be understood only of the divine law consigned in writing. For we find the whole body of divine law consigned and the law prescribed to the human race by God four times, namely immediately after man was created, when God forbade Adam to eat of the tree of the knowledge of good and evil. Secondly, in the restoration of the human race after the flood, when God handed down to Noe and his sons the precepts which are called the Noeidian precepts, of which presently. Thirdly through Moses, to whom He prescribed the ten commandments to be consigned to the Israelites, that they might be kept by them and their posterity, and thereafter by the whole human race. Fourthly and finally through Christ the Lord, who prescribed the Evangelical law embracing all the headings of divine right.

Human Law is that which is borne by immediate human authority; since however this authority is twofold, namely Ecclesiastical and Secular, it comes about that human law be divided into Ecclesiastical and Civil. The former is borne by ecclesiastical power, as of Supreme Pontiffs and Councils; the latter by secular power, as of Kings and Emperors. Each of these, on the part of the object and of the thing commanded, can be subdivided into Natural and Positive; for Ecclesiastical and Civil power can rightly prescribe and confirm those things which belong to Natural Right; it can also establish certain things pertaining to the observance of the law prescribed by God: the former is called Canon Law, the other Civil Law.

OF CANON LAW — Canon Law was integrated out of various laws and diverse constitutions into one body, which on that account is called the corpus of Canon Law. It is divided into the Decretum and the Decretales. — The collector and arranger of the Decretum was Gratian, a Monk of the Order of Saint Benedict, who after the ancient collectors of Canons and Decrets wove together and composed that immense work, partly from the decrees of Supreme Pontiffs, partly from the canons of Councils, partly from the sayings and sentences of the Holy Fathers of the Church, around the year 1151, and which Eugenius III approved and Gregory XIII afterwards confirmed. — The Decretum indeed is divided into three parts: The first part contains one hundred and one distinctions, which are subdivided into chapters, or canons. Places taken from that part are cited thus, Can. or cap. Humanum, dist. 1. The second part embraces thirty-six Causes, which are divided into questions, and the questions into chapters; citations from that part are made thus, Can. or cap. Quicumque studet, 2. q. 1., that is, the chapter or Canon which begins with those words, Cause two, Question one. The third part contains the Treatise De Consecratione: which is divided into five distinctions, and each distinction into chapters: and thus those chapters ought to be cited, can. or c. Pasu de consecratione, dist. 1. In the first part there is treated of Right in general, in the first twenty-six chapters, and of persons or Ecclesiastical ministers in all the rest. In the second part there is treated of those things which concern the form of Ecclesiastical judgments: yet in cause thirty-three, question three, is contained the Treatise De Poenitentia, divided into seven distinctions, which are subdivided into chapters: and this Treatise must be cited thus, Can. or cap. reperiuntur, De Paenit. dist. 13. The third part treats of the consecration of Ecclesiastics, of the celebration of Masses, of the Eucharist, of Ecclesiastical feasts and ceremonies, of Confirmation, and of fastings. — The Decretales were collected and arranged by the authority and ordinance of Gregory IX, Supreme Pontiff, through S. Raymond of Pennafort, not long since received into the catalogue of the Saints, chaplain of the same Pontiff and Penitentiary of the holy Roman Church: they were collected moreover chiefly from the letters and constitutions of Gregory IX and other Pontiffs: wherefore they were called Decretal letters, which are distinguished in this from the Decretum of Gratian, that they were compiled far more from the letters of Pontiffs than from Councils; whereas conversely the Decretum of Gratian relies more on the Decrees of Councils than on the letters or constitutions of Pontiffs. The Decretales comprise five books, in which the matter of Canon Law is expounded. The first book treats of the persons to whom any jurisdiction belongs, and of the preliminaries of judgments. The second explains the order of judgments. The third treats of Ecclesiastical matters which are accustomed to come before a court. The fourth, of betrothals and marriage. The fifth, of crimes and penalties.

The Decretales are otherwise called extra, because they were outside the Decretum of Gratian, which had been digested beforehand: whence among the more ancient writers they were cited thus, extra De Iudaeis, cap. Post Iudaeos: now however, since they enter into the body of Pontifical law, they are cited without addition, thus namely e.g. cap. Tuae nos, de iureiurando, and for the time being the books of the Decretales are understood by excellence, and neither distinctions nor causes are cited, as in the Decretum. — To these five books of the Decretales of Gregory, Boniface VIII added a sixth, compiled from the decretal letters of the Pontiffs successors of Gregory from the Council of Lyons, from certain new Constitutions of Gregory himself, and also from many of his own: and this book is called the Sextus of the Decretales, likewise consisting of five books, whose citation is made in the same manner as the Decretales are cited: except that the chapters and titles of this book are cited with an addition: saying namely in Sexto: thus e.g. cap. Volentes de privilegiis in 6. Clement V shortly afterwards published Constitutions, partly his own, partly taken from the Council of Vienne over which he presided; which John XXII, that same author dying, completed and caused to be published. From their author they are called Clementinae, and so they are cited, Clem. Dudum, de sepulturis, that is, the Clementina which begins with this word Dudum, under the title De usuris. Afterwards finally John XXII published twenty Constitutions, and after his death others issued from various Pontiffs, which are called extravagant; because although now they are of the body of the law, nevertheless they existed for some time outside it, as it were wandering with uncertain seat: and those are accustomed to be cited thus: extrav. Unigenitus, that is, the extravagant constitution under the title Unigenitus.

OF CANON AND CIVIL LAW.

The imperial law, especially the Digest and the Novels, was illustrated with notes so distinguished that they forestalled others from attempting the same thing. Thereafter many celebrated jurists emulated their labors. In Gaul indeed Budaeus, who on account of his outstanding prudence and jurisprudence under Francis I, king of the Franks, was prefect of petitions, and likewise legate of the same king to the Supreme Pontiff Leo X; and Duarenus, who surpassed all the jurists of his age both in elegance of speech and in method of teaching; Charondas Molineus, to be celebrated by a manifold title for the excellent gifts of his soul, had he thought altogether catholically. But far beyond them all came Jacques Cujas, a native of Toulouse, excellently trained in Greek and Latin letters as well as in imperial law, who for 40 years taught the imperial law publicly with highest praise at Toulouse, Cahors, Valence, Turin, and Bordeaux, and illustrated it with his exceptional and massive commentaries. I pass over the other expositors of the same civil law, sufficiently and more than sufficiently known through their excellent works. — Here incidentally it must also be observed what distinguishes the civil statute, the plebiscite, the senatusconsult, the edicts of the praetors, the responsa of the jurists, and custom confirmed by usage. What, says Justinian, book 1. Institutes, title 2, the civil statute is that which princes or magistrates establish with the people requesting it. A plebiscite is what the plebs enacted through a plebeian magistrate such as the tribune among the Romans. Now the plebs differs from the people in the way a species differs from its genus; for under the appellation of people all citizens are signified, patricians and senators included; but under the appellation of plebs the remaining citizens are signified without the patricians and senators. — A senatusconsult is what the senate commands and enacts. For when the Roman people had grown so much that it was difficult to convene it in one body for the purpose of sanctioning statutes, it seemed equitable that the senate be consulted in place of the people. — The edicts of the praetors served as a kind of supplement to the civil law, yet so that they had far less force than statutes, nor could they abrogate established or received law. The curule aediles also proposed edicts concerning certain matters which chiefly pertained to their duties. For, as Cicero notes, book 5. Against Verres, it belonged to them to see that certain buildings were roofed, the waters pure, the aqueducts intact, the roads passable. They were called curule either from the curia which they presided over, or from the chariot in which they rode, or from the curule chair in which they sat. — The responsa of the jurists were the sentences and opinions of those who were permitted to respond on points of law; for in ancient times it was established that there should be men who interpreted the laws publicly, to whom Caesar granted the right of responding, who were called jurisconsults; and the sentences and opinions of all these held such authority that a judge was not permitted to depart from their responsa, as it stands enacted. — Custom, or unwritten law, is that which usage approved; the usages of long standing approved by the consent of those who employ them imitate statute, says Justinian, text 9. For just as an express sanction makes law, so the tacit will of the people makes custom; whence as regards force and effect there is nothing at all between these two, provided the people which introduced the custom be sui juris and subject to no other empire; for cities and regions subject to another empire can no more introduce a custom by tacit consent than a statute by express consent. You will ask, 2. — Which are the principal acts of law? I answer, four principal ones are usually enumerated, namely to command, to forbid, to punish, and to permit. — It is proved: there are as many acts of law as there are different differences of human acts; now there are three generic differences of human acts, namely goodness, malice, and indifference, since human acts are either generically good, generically evil, or indifferent; therefore equally there are four acts or effects of law, namely to command, to forbid, to punish, and to permit; for good acts are commanded, evil acts are forbidden from being committed and punished once committed, indifferent acts are permitted. — These, however, are called acts of law not because they are elicited by the law itself; since it is neither a habit nor a power, it has no elicited acts; rather they are so called by reason of completeness, because namely through these four acts above all the whole law is fulfilled and made complete: not that all of these are found in every particular law, but because they pertain to law in common; for law is chiefly concerned either in commanding good, or forbidding evil, or permitting indifferent acts. You will say: By what rationale are men incited to good and withheld from evil through punishments, and likewise through rewards; therefore just as punishing is an act of law, so too is rewarding, and thus there would be five acts of law, and consequently not only four. — I deny the consequence, for rewarding cannot have the character of an act of law as punishing can, chiefly for three reasons. First, rewarding may belong to anyone whatsoever, and thus, since it is not an act of a superior, it cannot be an act of law; punishing, however, can belong only to the minister of the law, by whose authority punishment is inflicted; whence it is an act of a superior, and of law. Second, because punishing induces action by way of a kind of coercion, whereas rewarding does so not in that manner but by way of a kind of exhortation, and as it were counsel; hence the former is an act of law, but not the latter. Third, because virtue in itself possesses sufficient worth, so as to be desired for its own sake; whence it is to itself a sufficient reward; consequently for inducing to virtue, which is done through law, no proposal of another reward is required; but the threatening of punishment is required, lest men, whose senses are prone toward evil from their youth because of the corruption of nature, follow their passions out of fear of penalty rather than obey the law, and thus the common good be promoted. You will say, 2: Many other acts of law could be enumerated; therefore they are not only four. The antecedent is proved: to direct, to render unfit for dignities and offices, to annul, to set prices upon things, to change ownerships of things, to revoke past laws, are also acts of law; but none of these is comprehended under the four mentioned above; therefore there are more acts of law than the four assigned. — I deny the antecedent, as well as the minor premise of its proof, for these are reduced to the four assigned; indeed directing pertains to those four; for man is directed by law in as many ways as law can enact. Rendering unfit is sometimes reduced to punishing, because unfitness is sometimes inflicted by way of penalty; sometimes to commanding, because unfit is he who lacks the condition which the law requires in this respect for some office or function; sometimes to forbidding, because the law prohibits such a one from being assumed into that office or performing such functions. As for the annulling of contracts, it has the same rationale as the unfitness of persons. Setting prices upon things is reduced to precept if it is ordered that a thing be sold at so great a price, to prohibition if it is decreed that it not exceed it. Changing ownerships of things is reduced to precept, because the Legislator commands by law that he who prescribes be lord over another's goods. Revoking a law is not precisely an act of law; but if it is reduced to the acts of law, it is reduced under that title alone by which it commands, forbids, permits, or punishes. You will ask, 3. — Which are the causes of law? I answer, the material cause in which of law, that is, its subject, is the intellect directive-wise, and the will subjective-wise; for (as we said) when the Legislator, or Superior, intends to frame any law, he first knows whether what he wishes to enact is good and useful to subjects; and that judgment resides in the intellect; next, he prescribes to his inferiors that which seems fitting to himself and useful to them, in which the formal rationale of law consists; but this decree remains in the will as in its proper subject; hence the matter in which of law is the intellect, and the will, of the Legislator. But the secondary matter in which is the tablet, book, writing, voice, and other things of this kind through which the law is declared to inferiors, most especially positive laws, both divine and human; for after laws have been decreed in the mind of the Legislator so as to have their moral essence, which consists in obliging force, they must be made manifest to inferiors through such instruments. But the matter about which laws are concerned are human actions which fall under law, so that through it they may be done rightly and turn aside from the crooked; for this reason laws are enacted, that man may tend along the straight path toward the end prescribed for him. — The final cause of law is the good of the community to be established and instituted; for laws, as we said, must necessarily bear toward and be ordered to the common good, such that if any Prince should issue an edict whose utility redounds only to his private advantage, that decree savors of tyranny rather than of law. — The formal cause is the very norm of justice which the law carries before it; for, as was said in what precedes, every law ought to be just and justly promulgated, so that namely it impose burden according to the proportion of strength; and if to one less strong a heavier work to be performed is prescribed, that prescription will incline more toward tyranny and injustice than toward an approved and right rule of acting. — The efficient cause of law is he who holds supreme authority over subjects, whether he be one, as in a Monarchical Empire, or many, as in a Democratic Empire; for since laws must be prescribed to a community and order inferiors toward the common good, it is necessary that this ordering be done by him who holds supreme jurisdiction over the community; just as in the natural body the head applies the other members to duties proper to themselves for the good and preservation of the whole body, so likewise in the political body, ecclesiastical as well as civil, it is necessary that he who prescribes law to the members of that body hold the role of head regarding things to be done or omitted, and possess supreme authority.

You will ask, 4. — Which are the effects and office of law? I answer, the office of law is twofold above all, namely to direct, and to oblige. The first indeed is evident; since every law is a measure and rule of human acts; but it belongs to the rationale of measure and rule that it be directive of what is measured and ruled; therefore law must be directive of men, prescribing to them what they ought to do and what omit. The second also is manifest; for law is said from binding, because, as Cassiodorus says, it binds our minds and holds them obedient to its constitutions. This obligation or binding proceeds either from the very nature of things, if the law be natural, or from the will and power of a superior, if it be positive. Yet this effect is not primary and adequate, as some wish; since, as was said in the preceding Conclusion, the primary rationale of law is not that it obliges, seeing that there are very many laws which have only a consequent power of obliging. — I answer secondly, the principal effect of law is the goodness and ordination of subjects; for every law tends toward this single end, that it institute subjects obedient to itself, indeed so as to make them good; for since every law ought to be just and ordered to good, inferiors cannot obey the law without being reckoned just, ordered, and good. Whence as it is the virtue proper to the Prince to command his subjects justly and rightly, so likewise the goodness and perfection of inferiors derives from the fact that they obey the law and comply with the legislator. — Moreover, the law institutes subjects as good according to the larger, or higher, goodness which it contains. Hence the Evangelical law, the most excellent of all, intends that man become simply good, not only in outward deed but also in the inward soul, and indeed that he become the adopted son of God through grace. The natural law, that he become good through the moral virtues, which are commensurate with nature, and have a life ordered toward other men, doing to another not what he would not wish done to himself. The civil law, that he exist as a good citizen, and perform those things which are ordered to the peace of the commonwealth. The ecclesiastical law, that the Cleric be instituted in upright morals and perform the duties of his office in due order. — Otherwise, the use and office of law may be distinguished as twofold, namely general and particular. General is that which obtains in every state of man, namely that it be the one and certain norm of things to be done by everyone both toward God and toward neighbor, so much so that no work is reckoned good and acceptable to God unless it be consonant with the law and prescribed by the law, at least virtually and implicitly. Particular is that it show forth evil, coerce, and vindicate; whence it has the force of conviction, coercion, and condemnation. Of conviction indeed, for by it man is judged guilty of sin; for it is a mirror in which the gravity of sin and the stains of the soul are recognized and shown forth, the Apostle saying to the Romans 3: by the law is the knowledge of sin. It also has the force of coercion, for by its precepts, terrors, and threats it holds men within due duty, so that they who are touched by no care for the just and the right except when compelled, hearing the penalties prescribed to transgressors of the law, may be deterred from wicked actions, if not from love of justice, at least from fear. Whence law stands in the manner of a bridle by which the petulance of men is tamed and repressed, and contained within the enclosures of right discipline; in respect of which St. Paul, 1. to Timothy 1, writes: the law is not laid down for the just, but for the unjust and disobedient, impious persecutors, etc. Nevertheless it not infrequently happens that this intention of the end is altogether frustrated and turns into the opposite. For it often comes about that on occasion of the law man's appetite toward the prohibited thing is irritated ever more, since we strive after the forbidden and ever desire what is denied: in which sense the Apostle, to the Romans 5: law crept in that sin might abound. — Finally, the third office of law is to adjudge the sinner guilty of transgression to the crimes committed by him against its prescriptions, and to the penalties: whence the Apostle, 2. to Corinthians 3, calls the law the ministration of damnation. And to the Romans 4: The law, he says, worketh wrath, that is, it spurs and induces the prince and magistrate to take cognizance of the transgressors of the law, by which rationale law stands in the manner of a whip and goad by which the soul of the transgressor is pricked and tormented, so that it has no rest and peace; whence David, after the adultery committed, used to say: there is no peace in my bones because of my sins. All of which, although they suit every law whatever, and no law exists which does not discharge this threefold duty, nevertheless ought by prior right to be said of the divine law, whether natural, common to all men, or positive, particular and prescribed to a determinate society of men. For those divine laws illuminate man more resplendently regarding doing good and fleeing evil, recreate and delight the obedient to the law more fully, but prick and torment the transgressor more sharply. Finally you will ask. — Which are the properties of law? I answer, three properties of law are commonly recounted, namely authority, truth, and goodness. For law has a principle, a form, and an end. By reason of the principle framing the law, authority is owed to the law itself; for an edict sanctioned without authority is of no value whatever, nor can it have in any way the rationale of law. By reason of form, truth or rectitude is owed to law; for that which is prescribed with injustice does not attain the rationale of law, but verges into tyranny. By reason of end, goodness is owed to law; since the whole law is ordered to the common good of the society of men, and likewise to the particular good of God, toward whom every good of the creature ought to flow back as to the fountain and head from which it flows forth.