Scotus Academicus, Tomus sextus: De Legibus Divinis et Humanis

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.