Scotus Academicus, Tomus sextus: De Legibus Divinis et Humanis

Although it does not properly belong to the Theologian to treat of Laws enacted and sanctioned by man, inasmuch as this subject matter belongs to the Doctors of both Laws, namely the Pontifical and the Civil, as a harvest of their own that ought not to be reaped by another's hand; nevertheless, since human Laws are akin not only to the laws of nature, but even to the laws of God, and are as it were little rivers flowing down from that ocean of all equity and rectitude; and since they must accord not only with the dictate of right reason, but also with divine ordination and administration, if they are to be accounted just: hence it is that the Theologian does not depart from the course prescribed to him when he proposes certain matters concerning human Laws for discussion.

Now that Law is called Human which is prescribed immediately by human authority, whether civil or ecclesiastical. But civil legislative authority belongs by the nature of the thing, and of itself, to no single man; for since all men are born free by nature, no one holds by the law of nature political authority and jurisdiction over another. For although parents have paternal and domestic power over their children, yet this does not suffice for enacting laws: for legislative power is the power of governing a publicly perfect community; since law is one of the chief acts by which the Commonwealth is governed; and this is administered and sustained only by public power and jurisdiction.

Hence whoever among men possess legislative power must either receive it from God immediately, as Saul, David, and certain others in fact received it, kings elected and designated by God Himself; or they must receive it from the community of men gathered together into one political body, in order that they may be rightly governed and live happily. Now men have from nature, and from God as the author of nature, the faculty and inclination to come together into such a community: "For," says Cicero in De Amicitia: nothing is at the outset more pleasing to God in human affairs than that men should have among themselves an ordered and perfect society: for since man is by his nature a sociable animal, naturally desiring to live in community, and stands in need of many things for living commodiously, which can be furnished neither by one man alone nor by a single family—such as all those necessaries or conveniences to be sought from the arts and disciplines—therefore men, in order to procure these necessaries for themselves, have the right of instituting a perfect community, which is called civil, and this exists either among the inhabitants of the same city, or even among several cities within one kingdom. But in order that this community be perfectly directed, it is necessary that there flourish in it some supreme power, to whose office it belongs to intend and provide for the common good; otherwise it will be neglected, while each private person, as is their wont, attends only to his own advantages, or chiefly so, and cares less for what pertains to the common good. Among the means, moreover, whereby the common good is provided for and the Commonwealth perfectly administered, the chief are laws, by which are established those things that conduce to preserving peace and justice, and instituting common happiness. Wherefore those upon whose office it falls to administer the Commonwealth with supreme jurisdiction ought to have the right of enacting the laws necessary for establishing public concord, peace, justice, and happiness.

Therefore, deferring to the custom of other Theologians, that we may discuss certain matters concerning Human Laws, we shall divide the present Disputation, as also the preceding one, into three Articles, of which the First will disclose the necessity, existence, and causes of Human Laws: the Second, their efficacy and binding force: the Third will explain their diminution and relaxation.

Although the law innate in men dictates in general what is to be done and what is to be avoided; yet since besides the precepts of morals innate in each individual, many other things are required for establishing and governing human society aright, according to various particular events of affairs, it was therefore necessary that by human reason the general precepts of law be determined more in particular; namely, so that upon given occasions provision might be made for the peace, concord, and felicity of the commonwealth, which is indeed effected through laws enacted by men; wherefore that these are useful and necessary to the commonwealth no one of sound mind will deny. Whence St. Isidore, lib. 5 Etymologiarum, cap. 20: Laws were enacted that through fear of man human audacity might grow, and that innocence might be safe among the wicked, and that in the very wicked the faculty of doing harm might be restrained by the dread of punishment. Human laws, therefore, had to be established, by which the just might lead their lives tranquilly and peaceably, and the headstrong and prone to vices, who are moved neither by the beauty of virtue nor yield to words, might be restrained from evil by force and the fear of punishment threatened by law, and finally might become upright through habit.

From this is gathered a second reason for the supreme necessity of Human Law: that in the Natural Law no penalty is decreed; but in the divine Evangelical Law only a penalty to be endured in the other world is prescribed; wherefore, on account of its deferral, it strikes men less with fear: and accordingly it was needful that human laws be instituted, which should appoint a penalty for their transgressors to be paid shortly, that each one might the more easily be recalled from evil. It is not necessary, therefore, to dwell longer upon proving the necessity and existence of human laws, which all antiquity proclaims; all nations whatsoever, which have laid aside barbarism, testify universally; for there is no man among men

Scotus who has not laws; and God himself approves them when he says, Proverbs VIII: By me kings reign, and the makers of laws decree just things. And likewise while he thunders against tyrants, Isaiah 10: Woe to them that make wicked laws. For since he censures only the abuse of the institution of laws, he clearly proves their right and lawful use.

Therefore we propose only this for determination in this Article: First, whether under the Evangelical law the binding force of human laws still prevails: Second, in whom resides the authority of enacting laws: Third, who are subject to the laws once enacted.

Every human law is derived from the natural law: for there is no law unless it be just; but among human affairs something is judged just insofar as it is judged conformable to the rules of reason; and the first rule of reason is the law of nature. Whence every law posited by man has the character of law insofar as it is derived from the law of nature; if, however, it disagree from the law of nature in anything, it will no longer be a law, but a corruption of law. Now something can be derived from the law of nature in a twofold way, namely either by way of conclusions drawn from the common principles of the natural law: as that one must not kill is derived from the principle that evil must be done to no one; or by way of determination, as the law of nature has it that the malefactor must be punished, but that he be punished with such or such a penalty is a certain determination of human law: both kinds therefore are found posited in human law: but those things which are of the former kind are contained in human law not as though posited by it alone, but they also have some force from the natural law; those truly of the latter kind have their force from human law alone.

Note 2. That human law, according to its various consideration, can be divided variously. First indeed, inasmuch as it is derived from the natural law, it is divided into the positive right of nations, and civil law. To the right of nations belong those things which are derived from the natural law as conclusions from principles: to civil law, however, pertain those things which flow from the natural law by way of particular determination, according as each city, or each kingdom judges something to be established and observed for its own tranquillity and security. Secondly, since it belongs to the nature of human law that it be ordered to the common good of the city and kingdom, according to this consideration it can be divided according to the varied state of men who are engaged in procuring, establishing, and administering the common good, by which reason other laws are prescribed for Priests, others for governors, others for soldiers, etc. Thirdly, because it belongs to the nature of human law that it be instituted by the One Governing the community and society of men: thence it comes about that human laws are distinguished according to the diverse regimes into monarchic, aristocratic, and democratic. Fourthly, since human law is entirely directed to the direction of human acts; on this account laws are distinguished according to the matters upon which they bear. Hence there is the Julian law concerning adulteries, the Cornelian law concerning assassins, and so of others. Fifthly, finally, since the law can be considered according to the distinct authority of the Legislator, namely political and ecclesiastical, hence it comes about that some laws are called Ecclesiastical, which are otherwise called canons, or rules prescribed by those who hold from Christ the Lord the care and authority of administering and governing the Church: others are Civil, or Political laws, which are prescribed by Princes, and by those who are charged with governing the Republic.

Note 3. That around the times of the nativity of Christ the Lord there arose an error of certain men asserting that it was not lawful for the faithful to acknowledge any superior other than God: and thence that neither was obedience to be rendered to secular Princes, nor their laws to be obeyed. The standard-bearer of these errors was Judas the Galilean in the days of the enrolment, as we read Acts 5, that is, around the nativity of Christ, when namely the edict went out from Caesar Augustus that the whole world should be described, and all were going to be enrolled, as we read Luke 2. It is added moreover of that Juda that he drew away the people after himself. But what that man preached the sacred text does not say: however St. Jerome relates it, saying in chapter 3 of the Epistle to Titus: At the beginning, among other things he put forward this as quasi-probable from the law, that no Lord ought to be called except God alone, and that those who brought tithes to the temple ought not render tributes to Caesar. And this heresy spread far and wide up to the times of the preaching of Christ, and on his occasion the Pharisees sent their Disciples to Christ to ask whether it were lawful to give tribute to Caesar. Anastasius of Nyssa adds moreover in book 7 upon Scripture, that the followers of this Judas the Galilean were called Galileans, who forbade sacrifices to be offered for the Emperor, and for the Roman people, and that the same were killed by Pilate: for he believes these to be those Galileans whose blood Pilate mingled with their sacrifices. This error, long since lulled to sleep, Luther again raised up in the book On Christian Liberty, where he says: No work, no law does the Christian man need, since through faith he is free from every law. And in the Commentary on the Epistle to the Galatians: Faith alone, he says, is necessary, that we may be just: all other things most free, neither does he command further, nor forbid. And there he adds this: If conscience dictates, you have sinned. Answer, sin is committed: will God punish and damn? no. But the law says this? yet I have nothing to do with the law. Why? because I have liberty: and he adds there that no law can be imposed upon Christians, whether by men, or by Angels, except insofar as they themselves wish. Nor is Calvin far from this error: for in book 1. of the Institutes, chapter 10. n. 8. he affirms that God is the only Legislator: that men are not permitted to take to themselves such honor, and at n. 5. he had said before that human laws spoken and approved either by the Church, or by the magistracy, do not bind per se the conscience. Against which errors let

First Conclusion. — The faithful are not exempted through the Evangelical law from the obligation of obeying human laws, and of obedience toward superiors both ecclesiastical and temporal: consequently the necessity and utility of human laws still persists.

Proof: the Conclusion is proved by all those texts of Scripture in which Christ the Lord and the Apostles command the faithful to render due observance and obedience to Superiors, both Ecclesiastical and political. Thus Matt. 22. Render therefore to Caesar the things that are Caesar's; and to God, the things that are God's, from which words Justin Martyr in the second Apology for Christians gathers the precept of paying tributes to Princes: and there he professes in the name of all Christians subjection and obedience toward the Roman Emperors then still Ethnic. Similarly Luke 10. Christ the Lord addressing the Apostles says: He that despiseth you, despiseth me: and that successors are to render due obedience by divine precept.

Hence St. Paul to the Romans 13. prescribes generally v. 1. Let every soul be subject to higher powers: for there is no power but from God: and those that are, are ordained of God: and v. 2. Therefore he that resisteth the power, resisteth the ordinance of God. And they that resist, purchase to themselves damnation: and v. 5. Wherefore be subject of necessity, not only for wrath, but also for conscience. The former words of this last testimony, be subject of necessity, directly fight against what Luther said, that the faithful are not subjects unless they wish. The latter truly, not only for wrath, but also for conscience, are contrary to what Calvin says, that human laws do not bind per se the conscience. And to Titus 3. v. 1. Admonish them to be subject to princes and powers. And Heb. 13. v. 17. Obey your prelates, and be subject to them. For they watch as being to render an account of your souls. And 1 Peter 2. v. 13. Be ye subject therefore to every human creature for God's sake: whether it be to the king as excelling; or to governors as sent by him for the punishment of evildoers, and for the praise of the good: for so is the will of God, that by doing well you may put to silence the ignorance of foolish men, namely of those who accused the Christians at the very beginning of the preaching of the Gospel that they overturned human principality, and introduced disobedience toward Princes and toward human laws, as St. Jerome testifies in chapter 3 of the Epistle to Titus, at the beginning; and Chrysostom homily 23. on the Epistle to Timothy in these words: At that time many rumors were circulating traducing the Apostles as seditious, that they would overthrow the kingdom, and were saying so: who note also that for this reason the Apostles Peter and Paul said so many things in their Epistles concerning obedience toward Princes and Superiors, that they might oppose themselves to this error.

It is confirmed from the deed of the Apostles, who prescribed various precepts and various laws to the faithful in the very dawning origin of the nascent Church. Thus Acts 15. they decreed, that you abstain from things sacrificed to idols, and from blood, and from things strangled, and from fornication. Commanding them to keep the precepts of the Apostles and the Elders. And from the fact that the Apostle used this power 1. to Timothy 3. These things I write to thee, that thou mayest know how thou oughtest to behave thyself in the house of God. There he decrees that Bigamists and Neophytes are not to be assumed to the Episcopate; 1. to Corinthians 14. let women keep silence in the churches; and from the practice of the ancient Church, as appears from the Canons of the most ancient Councils convoked in the 3rd and 4th century. Reason also lends support; because the Evangelical law does not defraud and despoil secular Princes and Ecclesiastical Prelates of their authority, nay rather it commends it, establishes it, and confirms it, as derived from God, according to that John 19. Thou shouldst not have any power against me, says Christ, unless it were given thee from above: and Rom. 13. There is no power but from God. Nor does being deprive of the use of that power in enacting laws necessary or useful for the good governance of the Church or Republic; for as before the Evangelical law, so also under it many things can occur conducing to the worship of God, the direction of morals, the tranquillity and peace of the Republic, which are not determined and expressed by the divine laws of the New Testament, as appears not only in the laws pertaining to the administration and reception of the Sacraments, ecclesiastical censures, impediments of matrimony, but also in those things which pertain to the right governance of an empire, kingdom, and any community whatsoever: for a perfect civil community cannot be governed without laws. Hence with such zeal did the faithful of the nascent Church observe the imperial laws, which were not contrary to divine worship, that Pliny writing to Trajan concerning the Christians deservedly signified that he had found nothing whereby they could be blameworthy, as regards things not observed, religion excepted, under the imperial laws and edicts. Of this observance indeed St. Augustine in book De catechizandis rudibus chapter 21. says there was a figure in the Old Testament, when the Jews, Jerusalem having been captured and led away to Babylon, were commanded to pray for those by whom they were held captive, and to hope for their own peace in their peace: and they accomplished this so that at length some of those Kings acknowledged and worshipped the true God. In similar manner the faithful of Christ, exactly observing the decrees of the Emperors, brought it about that they themselves at length believed in Christ.

They object, the heretics: It is forbidden to the Jews to add certain laws over and above the divine law: therefore equally it is not permitted to Christians to enact new laws, which determine the divine law set forth in the New Testament, and promote its fulfilment. The antecedent is proved from Deut. 4. where it is said: You shall not add to the word that I speak to you, neither shall you take away from it, etc. and what I command thee this only shalt thou do, neither add thou anything nor diminish. It is clear also from congruence, both from parity of reason, and because St. John in the last chapter of the Apocalypse thus prescribes: For I testify to every one that heareth the words of the prophecy of this book: If any man shall add to these things, God shall add unto him the plagues written in this book: and if any man shall take away from the words of the book of this prophecy, God shall take away his part out of the book of life, etc.

I answer 1. I distinguish the antecedent: it is forbidden to the Jews to add something to the laws sanctified by God, as though laws issued by them were divine, I concede: otherwise, I deny. For from the very Old Testament it is established that several things sanctified by most holy men were to be kept by all Israelites in perpetuity: for Esther 9., Judith at the end, and 1 Machabees 1. new feasts were instituted to be kept in perpetuity: and 1 Kings 30. David ordained that there should be an equal portion for those going down to battle and those remaining with the baggage.

I answer 2. Denying the consequence: for the difference between the New Law and the Old is that in the old law, besides the moral precepts, judicial and ceremonial prescriptions were also laid down even in the smallest details, which looked either to the worship of God, or to peace among the Jews to be established or preserved: wherefore it is no wonder if then it was not in the power of men to enact human ecclesiastical laws, since God provided for everything by himself: but in the New law it happens otherwise: since nothing was prescribed by Christ the Lord concerning judicial and ceremonial matters, because these were not ordered per se, nor did they confer anything toward grace, in which the new law primarily consists, therefore these ought to be prescribed by men. Whence to the text of the Apocalypse I say that St. John forbids only detraction from, or addition to, those things which he had prophesied and written in that book: not truly does he take away from Christian Prelates and Princes the faculty of establishing new decrees, which concern the right administration either of the Church, or of the civil community.

They object 2. Christ the Lord Mark 7. condemns human precepts, citing that of Isaiah chapter 29. In vain do they worship me, teaching doctrines and precepts of men. And Matt. 23. he accuses the Pharisees because they laid heavy burdens upon men's shoulders, but with their own finger would not move them. Therefore he judged that no regard was to be paid to precepts and human laws.

I deny the consequence, and to the text of St. Mark I answer that Christ the Lord rebuked the Pharisees because they superstitiously imposed many vain and useless observances upon their followers, while they made little account of the observance of the divine commandments, as is clear from the reason which Christ himself subjoins, saying: For leaving the commandment of God, you hold the tradition of men, the washing of pots and of cups; and many other things you do like to these. He adds: Well do you make void the commandment of God, that you may keep your own tradition. And of this matter he subjoins an example, namely that they ought rather to offer gifts in the temple than come to the aid of the necessity of their parents. But to the text of Matthew I say that Christ partly reproaches the Pharisees because with their finger they were unwilling to move the burdens laid upon others, which nevertheless they urged the people to carry, saying: Therefore all things whatsoever they shall say to you, observe and do: and partly because in certain lesser observances, such as paying tithes of mint and anise, etc., they were exact, while they neglected things of greater weight: whence he subjoins: These things you ought to have done, and not to leave those undone.

You will object 3. Christians in the New Testament are called lawless, and altogether free: therefore they are bound by no human laws, whether Ecclesiastical or civil. The antecedent is proved from that passage of Matthew 17, where Christ says: The children are free, namely from paying tribute. Similarly, to the Galatians 2, the Apostle complains that false brethren crept in to spy our liberty, which we have in Christ Jesus: that they might bring us into servitude. And chapter 4: So now, brethren, we are not the children of the bondwoman, but free, by whose freedom Christ has freed us. And chapter 5: You are called unto liberty. And in the same place: If you be led by the spirit, you are not under the law. And 1 Timothy 1: The law is not made for the just. And 2 Corinthians 3: Where the Spirit of the Lord is, there is liberty.

I deny the consequence: for although Christians have been called unto liberty, this liberty is not an exemption from obedience owed to superiors, but either from the dominion of sin, or from a servile spirit and fear, or from the burden of the Mosaic law. Whence St. Peter admonishes them, 1 Peter 2: As free, and as having liberty for a cloak of malice, but as the servants of God. Therefore I answer each text singly: To the first indeed I say that those words of Christ from Matthew are not to the purpose: for their sense is, Kings and Princes are not accustomed to exact tribute from their own sons, but these are free from all tribute; and accordingly tribute ought not truly to have been exacted from Christ, who was the Son of the supreme King, and the Lord of all.

But to the texts

of the Apostle to the Galatians I say that he there treats of the liberty of Christians, and of their exemption from the burden of the Mosaic law, which he shows was a law of servitude, and that the Jewish people, to whom it was given, was prefigured by Ismael the son of the bondwoman: but Christians by Isaac the son of the free woman; whereby he signifies that we are free from the Mosaic law, but not from every other; on account of which he adds: Only be not (from the Mosaic Law) this liberty an occasion to the flesh: but by charity of the spirit serve one another. Hence in the same place St. Chrysostom rightly observes that the Apostle, when he had drawn away the yoke of the law, lest they should leap beyond measure, lays upon them another yoke, namely of charity, stronger indeed than the former, but far lighter and more pleasant. The Apostle therefore wills that Christians be free from the yoke of the Mosaic law, but not from the law of charity toward one another and toward God, which law of charity contains all the other moral precepts, as the Apostle signifies in the same place, saying: For all the law is fulfilled in one word: Thou shalt love thy neighbour as thyself.

To that passage of the Epistle to Timothy I say that the law is not made for the just, inasmuch as it threatens punishments and terrors: since the just man fulfills the law not from fear of punishment but from love of what is honorable and just: but in that way it is made for the unjust and for murderers, as the Apostle teaches in the same place.

To the passage of 2 Corinthians I say that the Apostle only wishes that the faithful be free from the obscurity and thickness of the old law, and from the blindness and hardness of heart of the Jews; insofar as they serve God freely, and attend to truth and divine things: whence a little before he had said: Until this present day, when Moses is read, the veil is upon the heart of the Jews. But when they shall be converted to the Lord, the veil shall be taken away: Now the Lord is a Spirit, and where the Spirit of the Lord is, there is liberty, But we all beholding the glory of the Lord with unveiled face, etc.

They object 4. Christ the Lord, addressing the Apostles, Luke 22, says: The kings of the Gentiles lord it over them: but you not so: therefore Christ holds that no dominion prevails among the faithful; and consequently that there is among them no legislative power. Similarly, 1 Corinthians 7, the Apostle says: You are bought with a price; be not made the bondservants of men.

I answer first, that by those words Christ only admonishes his disciples that they neither affect dominion nor titles of honor and excellence, but rather desire to serve others. But if they be compelled to preside over others, let them not do so as domineering, but as ministering, and let them imitate his example, who, although he was their Lord and Master, was in the midst of them as one who serves.

To the Apostle I say that he forbids us to become the servants of men in those things which offend God, namely by so accommodating ourselves to them that, bestowing compliance upon them, we forsake what belongs to God: for otherwise elsewhere the Apostle admonishes servants to obey their temporal masters. Thus to the Ephesians 6: Servants, be obedient to them that are your lords according to the flesh, with fear and trembling, in the simplicity of your heart, as to Christ: knowing that whatsoever good thing any man shall do, the same shall he receive from the Lord, whether he be bond or free. The same he repeats to the Colossians 3; the same likewise St. Peter teaches, 1 Peter 2, saying: Servants, be subject to your masters in all fear, not only to the good and gentle, but also to the froward.

Second Conclusion. — Human law is not incongruously described: the dictate of practical reason directed to the common good, promulgated by him who has care of the true community, and who possesses authority over it, sufficiently notified to his subjects.

The truth of this description is clear from an explanation of its parts.

First, then, human law is called the dictate of practical reason, in which respect it agrees generically not only with the natural law, from which it is derived as from a fountain, but also with counsel and with the simple command prescribed by one who exercises power; but when it is further defined as directed to the common good, privilege is excluded, which is granted only for the private good of some particular person. The remaining elements are added, partly to exclude counsel, which does not require the authority of one over another; partly to set forth the coercive force and efficacy of law, which can belong to a superior having supreme power over subjects to whom he has prescribed and made known the law.

It must nevertheless be observed that other definitions of human law are given by the jurists. Gratian, cap. Lex, distinct. 2, says that Law is the constitution of the people, which the elders together with the commons have sanctioned. Papinian, in Law 1. ff. de legibus, describes it thus: Law is a common precept, the deliberation of prudent men, the prohibition of offenses, and the common pledge of the commonwealth. Finally Rebuffus, in the Proemium of the constitutiones regales, Gloss 1, num. 1, hands down this description of human law: Law is the common Good, without which nothing good can ever be done. And although all these, and other similar descriptions of human law, can in truth be approved, nevertheless the one we have given seems more exact and more worthy of approval, since it sets forth the genus and the difference more perspicuously.

It must be observed besides that various conditions are required for the integrity and perfection of human law, all of which Isidore embraces in lib. Etymol. cap. 2, and Gratian, dist. 4, in these words:

Now a law shall be honest, just, possible, according to nature, according to the custom of the country, suitable to place and time, necessary, useful, and manifest too, lest it contain anything obscure through which one may be ensnared: written for no private advantage, but for the common utility of the citizens.

First it is said that a law ought to be honest and just: since law is ordained to compose the morals of men, who cannot be upright and virtuous unless they are imbued with the honesty of virtue and with justice; hence with good reason Saint Augustine says, lib. 1. De libero arbitrio cap. 5: That does not seem to me to be a law which is not just. But there is a distinction between these two qualities of human law, honest and just: it is called honest insofar as it prescribes what is honest and congruent to right reason; just, however, inasmuch as it compels all subjects equally, and without any exception, to observe or avoid its prescription.

Secondly it is said that a law ought to be possible, and that not only by physical possibility but also by moral possibility, namely, that it be tempered to the strength of the subjects: for human law ought to direct the multitude to which it is prescribed toward the common good; but it would not direct them in such a manner if it commanded something difficult of accomplishment, since this would rather tend to the detriment of the common good, and would be a snare to the subjects, since scarcely would it be observed by the very few, on account of the difficulty of the thing commanded and human frailty. Wherefore Princes and prelates must above all take care not to oppress and overwhelm their subjects with a multitude of laws and with difficulty. Hence Seneca rightly said, Epist. 94: A law ought to be brief, so that it may the more easily be grasped by the unskilled; or as the voice divinely uttered has it: let it command, not dispute. Hence Saint Augustine, Epistle 119, which is to Januarius on the various ecclesiastical rites, where he had recalled the diverse precepts of the Church, says cap. 19:

All such things, therefore, as are not contained in the authority of the holy Scriptures, nor are found decreed in the councils of bishops, nor confirmed by the custom of the universal Church, but are varied innumerably in diverse places by diverse customs, so that scarcely, or indeed never at all, can the reasons be found which men followed in instituting them — wherever liberty is given, I judge they should without any doubt be cut away. For although it cannot be found how they are against the faith, still they burden that religion itself which the mercy of God willed to be free with the fewest and most manifest sacraments of celebration, with slavish burdens, so that the condition of the Jews is more tolerable, who, even though they have not recognized the time of freedom, are subjected yet to legal burdens, not to human presumptions. But the Church of God, established amid much chaff and many tares, tolerates many things, and yet neither approves nor does those things which are against the faith or a good life.

The third condition is that human law be framed according to the custom of the country: since according to the variety of regions and peoples there are also various customs; and therefore laws ought to vary. It is added that they ought to be congruent to place and time. Thence it has come about that there is such variation of laws; for those which were fitting at one time seem hostile at another. It follows that it ought to be necessary and useful: necessary, I say, for the proscription of evils: for if all things in a commonwealth stand aright, law is altogether superfluous. Useful, however, for if it brings no utility to the common good, it must altogether be dismissed as futile and empty. It is added that a law ought to be manifest: hence Justinian, lib. De legibus: The most sacred laws, he says, ought to be understood by all, so that all, more clearly understanding their prescription, may decline what is forbidden and do what is prescribed. The rest are added so that from them it may be evident how all laws ought to conduce to the common good, as was said in the first Disp.

That the supreme legislative power resides in God alone; for since He alone is the most powerful Artificer of all things, it belongs to Him alone to direct all things, and especially those endowed with reason, toward their ends through fitting means. But since there is a twofold state and end of men, one natural, the other supernatural, toward which God orders them by the twofold vigilance of His divine providence, He has also implanted in men a twofold authority, by which, as ministers of that supreme power of His, they might direct others subject to them toward both felicity, natural and supernatural. Hence a twofold legislative power arises among men: one indeed civil and political, whereby the commonwealth may be rightly and peacefully administered and subsist; the other however spiritual and ecclesiastical, whereby the faithful of Christ the Lord may cohere together not only by the bond of charity but also of tranquillity and concord; and, obeying the laws prescribed to them, may attain eternal life with an easier and more secure step. It is asked, therefore, in whom this twofold power of enacting laws principally resides and flourishes.

Note 2. This is the difference between these two legislative powers: that the Ecclesiastical was derived from Christ the Lord into Peter and his Successors, according to that word, Matth. 16. To thee I will give the keys of the kingdom of heaven, and John 20. Feed my sheep: by which words, as we shall say presently, the government of the universal Church is promised, and then committed, to Peter and his Successors: but the political resides primarily, and as it were radically, in the community itself, or the commonwealth; for this power follows from the nature of the thing from the condition of a political body, as a certain moral property thereof; since by the very fact that some men come together into some assembly, that community has by the nature of the thing the power of governing itself by fitting means; and consequently of prescribing laws, whereby each member may strive for and watch over the common good. For just as by the very fact that some slave, or other person, is enrolled in the household of some master, he knowingly subjects himself to his government; so also the members of a community, by this very thing that they come together into one body, subject themselves to the government and authority of that body itself. Now this power of the whole community does not reside in any one member of it; because there is no stronger reason why it should belong to one man rather than to another, on account of which the right of governing the multitude, or community, would accrue to him by the nature of the thing; especially since individual men vindicate liberty for themselves, nor are they by their nature subjected to any political power. Therefore this power resides in the whole community itself, yet nevertheless it is not so immovably fastened to it that it cannot be removed from it; for first, God, as supreme Lord of all created law, can take away this legislative power from that community, and confer it upon some member of it, as He conferred the power of government over the Israelites upon Saul and David. The commonwealth itself also can transfer this power to one single of its mem-

Note 3. Moreover, this further difference exists between the two powers: that the Ecclesiastical is more excellent than the civil, insofar as spiritual things excel temporal ones, and the supernatural the natural: for the Ecclesiastical power is of the supernatural order, not only with regard to the principle from which it is derived, being instituted by the Author of grace, but also with regard to its end; since it intends a supernatural end, and by supernatural means; and although it seems to prescribe many things which are in substance of the natural order, nevertheless it commands these in order that by them the order of the Ministers of the Church may better stand, who ought to offer sacrifices, administer the sacraments, and discharge the other duties of the Church; whereby the people may work out or attain salvation more easily. But the Civil power is only of the natural order; for it looks solely to political felicity, nor does it intend of itself what is spiritual and supernatural. Nevertheless both these powers ought to cohere with each other: hence Hugh of Saint Victor, Letter 238, to Pope Paschal, rightly says: When the kingdom and the Priesthood agree with each other, the world is well governed, and the Church flourishes and bears fruit: but when they disagree with each other, not only do small things fail to grow, but even great ones miserably fall away.

These points having been set forth in advance, three things chiefly occur here for examination. First indeed, whether and what laws Emperors and Kings can enact. Second, whether the Prelates of the Church, namely the supreme Pontiff, Bishops, etc., can prescribe laws to their faithful subjects. Third, whether Communities and assemblies also have power to establish laws.

First Conclusion. — Emperors and Kings cannot establish laws purely ecclesiastical, but only political: and this only for the peoples subject to them. This conclusion has two parts, of which

The first is proved: First indeed by the authority of the Holy Fathers, as is evident from St. Athanasius, Epistle to those living the solitary life; Hilary against Constantius, but especially from St. Ambrose, who in his sermon on the Basilicas not to be handed over to heretics speaks thus of the Emperor:

What is more honorable than that the Emperor be called a son of the Church? And when this is said, it is said without sin; for a good Emperor is within the Church, not above the Church: for a good Emperor seeks the help of the Church, he does not refuse it, etc.

And Letter 13, to the Emperor Valentinian, who had commanded Ambrose to come before him to dispute concerning the faith with Auxentius the Arian, among other things he writes:

When have you heard, most clement Emperor, that in a matter of faith laymen have judged of a Bishop? Are we then circumvented by a kind of flattery, so that we are unmindful of the priestly right, and think that what God has given to me, this same I must believe to be given to others! If a Bishop is to be taught by a layman, what will follow? The layman rises, and the Bishop listens: does the Bishop learn from the layman? But certainly if we draw upon the series of the divine Scriptures, or upon times of old, who ever heard that in a matter of faith, in a matter, I say, of faith, it was customary for Bishops to judge of Christian Emperors, and not Emperors of Bishops? You shall be, God favoring, even more advanced in the maturity of age, and then you will judge what manner of Bishop he is, who submitted the priestly right to laymen. Your father, God favoring, and of riper years, said: It is not mine to judge between Bishops: your Clemency now says: I ought to judge: and he, baptized in Christ, thought himself unequal to the weight of so great a judgment; your Clemency, for whom the sacraments of baptism are still reserved to be earned, arrogates judgment concerning the faith, when she does not yet know the sacraments of that faith itself.

With similar constancy and fortitude of mind St. Augustine writes to Boniface the Count concerning the Donatists and Circumcellions, showing how and when the faithful ought to obey the laws of Emperors:

Because, he says, even the Emperors, when they enact wicked laws in support of falsehood against truth, are proven to be believers indeed, and are crowned for persevering; but when they enact good laws in support of truth against falsehood, the raging are terrified and the understanding corrected: whoever therefore refuses to obey the laws of Emperors, which are not enacted against the truth of God, incurs great punishment, etc.

Nor does it stand in the way that certain Christian Emperors have prescribed certain ecclesiastical laws, as is evident from the Code of Justinian: for whatever they decreed had no binding force by virtue of Imperial sanction, but derived its force solely from the concession of ecclesiastical power, as if by a tacit or express invocation of the Church requesting the aid of the secular arm against raging heretics or other vices contrary to religion, such as blasphemies, and Pagan and Jewish rites, which could not be restrained by the spiritual power of the Church alone. This the Emperors accomplished, so that what had been holy ordained either by Christ the Lord or by the Church might be put into execution; for Kings and Emperors must watch most diligently that the Church be protected and preserved, according to that prophecy of Isaias concerning the Church: Kings shall be thy nursing fathers, and queens thy nursing mothers: they shall worship thee with their face toward the earth, and lick up the dust of thy feet.

The second part is also evident, namely that Emperors and Kings can enact laws only for the peoples subject to themselves. For since the authority of enacting laws extends itself only to subjects, whom Legislators can compel to the observance of the laws, it follows that laws have no binding force whatsoever with respect to those who are not subject to the Legislator.

Second Conclusion. — THE SUPREME PONTIFF, BISHOPS, AND COUNCILS HAVE THE POWER OF ENACTING ECCLESIASTICAL LAWS.

The first part is founded on those two testimonies of Matthew 16, where Christ promises Peter a special authority, saying: To thee will I give the keys of the kingdom of Heaven, and Thou art Peter, and upon this rock I will build my Church. Afterwards indeed, fulfilling the promise in John 21, when he had thrice asked Peter whether he loved him more than the others, subjoining, he said: Feed my sheep; that is, receive the power of ruling and of enacting laws: for the word feeding signifies in the Scriptures that power, as is gathered from 2 Kings c. 6: Thou shalt feed my people Israel, and thou shalt be prince over it. But whereas he said indefinitely my sheep, he shows that the power granted to Peter extends to all the faithful of Christ. — And Saint Bernard explains this truth expressly, book 2 De consideratione, addressed to Eugenius the supreme Pontiff, chapter 8, where addressing him he says: Come, let us inquire yet more diligently who thou art whose office thou bearest, namely for the time being the person in the Church of God. Who art thou? The high priest, the supreme Pontiff. Thou art the prince of Bishops, thou the heir of the Apostles, thou Abel in primacy, Noe in governance, Abraham in patriarchate, Melchisedech in order, Aaron in dignity, Moses in authority, Samuel in judgment, Peter in power, Christ in anointing. Thou art he to whom the keys were handed over, to whom the sheep were entrusted… Those men have flocks assigned to them, each his own one; to thee all were entrusted, one flock to one man. Nor art thou now the one shepherd of sheep only, but also of shepherds. Whence, if I prove it, do you ask? From the word of the Lord. For to whom, I shall not say of Bishops, but of parts of the Apostles, have the sheep been thus absolutely and without distinction entrusted whole? If thou lovest me, Peter, feed my sheep: which? those of such and such a people, city, or region, or certainly of some kingdom. My sheep, he says. To whom it is not plain that he designated some, but assigned all? Nothing is excluded where nothing is distinguished.

This same truth many supreme Pontiffs have asserted: Thus Pope Anacletus, dist. 22, Epistle to all the Bishops, writes thus: The most sacred Roman and Apostolic Church obtained the primacy, not from the Apostles, but from the Lord himself our Savior, and attained the eminence of power over all the Churches and the whole flock of the Christian people; as he himself said to Blessed Peter the Apostle: thou art Peter, etc. The same is affirmed by Innocent III, c. Sollicitae est, etc.: The sheep of Christ are committed to us in Blessed Peter, the Lord saying, Feed my sheep. And Innocent IV in the General Council of Lyons: Since we hold the vicarship of Jesus Christ on earth, and it has been said to us in the person of Peter: Whatsoever thou shalt bind upon earth, etc.

This same truth is confirmed from the practice of the early Church: For Victor excommunicated the Churches of Asia because they did not celebrate Easter on Sunday, but on the day on which it is celebrated by the Jews, as is read in Eusebius book 5, history, chapter 31. Zephyrinus, as Tertullian relates, book De Pudicitia chapter 7, decreed that adulterers and fornicators be admitted to penance. Likewise he condemned the Montanists, as Tertullian himself relates in the book Contra Praxeam. Pope Stephen decreed that those returning from heresy were not to be rebaptized. So Eusebius book 7, chapter 6.

You ask: whether the supreme Pontiff can enact laws independently of the counsel of the Cardinals? — I answer, that in ancient times the Roman Pontiffs, whenever they had something weightier to decide, took counsel not otherwise than of neighboring Bishops, as is evident from very many examples which it does not profit to examine at present. Nevertheless, fittingly the supreme Pontiff decides and decrees nothing of greatest weight without the counsel of the Cardinals: Because, as Innocent III says, as related under the title Qui filii sunt legitimi, chapter Per venerabilem, the priests of the Levitical race are our brethren, who stand as our coadjutors by Levitical law in the execution of the sacerdotal office: But he is priest or judge over them, to whom the Lord says in Peter: whatsoever thou shalt bind upon earth, shall be bound also in Heaven. His Vicar is he, who is a priest forever according to the order of Melchisedech, constituted by him judge of the living and of the dead.

Proof of the second part: First, because Bishops have power in their own Dioceses, and are set by the Holy Spirit to rule their own Churches. Second, because the Church acknowledges such power in them, as is evident from the chapter Si quis de maioritate et obedientia, and the chapter Ut animarum, in sexto. Third, from the practice of the early Church, which appears in the Letters of Saint Cyprian, 10, 11, 12, and 11, in which he decides and commands in his Clergy that peace not be rashly granted to the lapsed, and in Epist. 13, in which he decrees that the lapsed and Catechumens not depart out of this world without communion. — Likewise from the Canons of Peter of Alexandria in his Sermon on Penitence: the Canonical Epistle of Gregory Thaumaturgus constituting various penalties according to the diversity of sins, and others.

The third part is also evident, because a General Council legitimately convoked has the power of enacting laws for the whole Church: First because General Councils are convened in the Holy Spirit, and represent the universal Church: Second because the Apostles sitting in a General Council enacted laws, as is evident from Acts 15. Finally, because this has ever been done in General Councils, in which very many things have been sanctioned pertaining to the good government of the Church and the upright institution of morals. — Provincial Councils can likewise enact laws which bind in Provinces; and National Councils, laws which bind in nations, as is equally evident from the universal and perpetual practice of the Church. But if National or Provincial Councils have carried certain laws which extend themselves to the whole order, this was not done because those laws were sanctioned by those Councils, but because laws of this kind were accepted by all the faithful, at the instance and command of the Bishops. — As for the Chapters of Cathedral Churches during a vacant see, it is more probable that they cannot constitute anything which binds throughout the whole Diocese, save provisionally, and especially in those matters wherein provision must be made for the time of the vacancy: first because the law itself provides that nothing be innovated while the see is vacant, and although episcopal jurisdiction subsists in the Chapter of the Cathedral Church while the see is vacant, nevertheless it resides therein after the manner of one passing through, and provisionally only, until a Bishop be constituted: but laws ought to be enacted by an authority holding itself after the manner of one permanently abiding; since, as we said, laws ought of themselves to be perpetual. Finally, because the Cathedral Chapter, during the vacancy of the Episcopal see, has no wider jurisdiction than the College of Cardinals during the vacancy of the Apostolic see; but Cardinals are not permitted to enact any laws during the vacancy of the Apostolic see, save only after the manner of provision, and that when the gravest necessity demands it, because a single business is enjoined upon the Cardinals, namely to attend to the election of the supreme Pontiff, as is evident from the Clementine Ne Romani etc., and from the chapter Ubi periculum, de electione, in sexto; therefore etc. — Finally, all Superiors having episcopal, or quasi-episcopal jurisdiction, such as very many Abbots and other superiors and Prelates of Orders, can enact laws for the religious subject to them. The General and Provincial Congregation can likewise perform the same, as is evident from the usage of Religious Orders approved by the Pontiffs. It must nonetheless be observed that no laws can be enacted in our Seraphic Order which bind the brethren under pain of mortal sin: for this authority was proscribed by Sixtus IV in the Bull Circumspecta Apostolicae Sedis, which is number 26 of the same Pontiff in the Bullarium of Rodriguez. For in it the supreme Pontiff, at the instance of the Minister General and of the whole Order, annulled obligations under pain of mortal sin arising from censures, and from statutes hitherto made even by Popes: which annulment Pius V confirmed, as Portel relates, under the word statutum, in the additions; intending that by whatsoever statutes, even Apostolic ones, the Brethren should not be bound to any censures or ecclesiastical penalties, or to mortal sin: but only to penalties or penances to be imposed by Prelates, provided there be no contempt, nor a command laid under pain of excommunication, or in virtue of holy obedience.

It is certain that preceptive or prohibitive laws do not oblige one to avoid or to do anything, except in subjects who are masters of reason: since the law is an act of jurisdiction and superiority, which cannot be exercised except toward a subject who ought to acknowledge the precept in order to fulfill it; hence it is evident that preceptive or prohibitive laws cannot bind anyone except those who are subject to the command of the legislator, and who can know his mandate, that they may be able to fulfill it. Whence it follows that whoever are bound by laws must be of such a condition and state that unless they obey, the transgression be imputed to them as fault: but those who are not capable of reason can admit nothing that would be imputed to them as fault: for nothing of this kind is imputed unless it be done in a human manner, that is, understandingly and rationally: wherefore infants, who have not yet come to the use of reason, are not bound by preceptive or prohibitive laws: hence they may use forbidden foods, and enter the enclosures of nuns, etc. Similarly catechumens, and infidels not yet baptized, are not bound by the preceptive and prohibitive laws of the Church, because they are not her subjects: wherefore they do not sin against an ecclesiastical precept if they neither keep the feasts nor abstain from flesh on fasting days. I have said preceptive or prohibitive laws, because laws simply constitutive, that something be or not be, are held to extend even to those who are not capable of reason: for instance, that no unbaptized person be capable of the other sacraments.

The reason of the distinction, however, is that those who lack the use of reason, although they are not capable of moral obligation, to which they would be held bound to obey under pain of sin, are nevertheless capable of an impediment that is quasi-natural, and does not depend upon the free use of their will.

Note 2. The present question is not raised against heretics, and certain Errors, some of whom, as the Lutherans, contend that Christian men are not bound by human laws, seeing that they have been made free through Christ: while others wish that at least the just are not bound by human laws: since, they say, the law is not laid down for the just. But others contend that at least those eminently perfect are not subject to human laws, as the Beguards at one time affirmed, as is gathered from the Clementine Ad nostrum, de haereticis. For all these errors were refuted by us above. Nor is the discourse equally about subjects of the authority of the legislator: for it is evident that every man having a ruler and superior can be bound by his laws, and accordingly human laws bind all the subjects to whom they are directed: For, says St. Paul to the Romans 3, We know that what things soever the law speaketh, it speaketh to them that are in the law. It is said. Therefore it binds all those to whom it speaks by commanding, for authority binds its subjects, according to that saying of St. Paul to the Romans 13, Let every soul be subject to higher powers. Whence a threefold difficulty especially remains here to be examined: First, whether princes and legislators are subject to their own laws, and bound to keep them. Second, whether ecclesiastical persons are obliged to keep the laws of secular princes. Third and last, whether travelers are bound by the laws of the place through which they pass.

Note 3. That the Prince and Legislator cannot be obliged to keep laws which by no means pertain equally to all, is certain indeed, since the Prince is not held by them: thus he is exempt from the law of tributes, which is prescribed only to subjects: equally exempt from the law whereby the manner is prescribed in banquets, garments, and furniture: for it would be unjust for the Prince to be restricted by these, no otherwise than subjects are held bound. The difficulty therefore is solely whether the Prince, both political and Ecclesiastical, is held to keep the laws which pertain equally to all: but this obligation can be conceived as twofold: either with respect to the directive force only; so that the Prince is held only to execute, or to provide for, that which the law commands or forbids, so that he may show the way to his subjects for the observance of those laws: or he can be considered obliged also with respect to the coercive, or punitive force, so that he lie subject to the penalties prescribed by the law, should he not fulfill what is commanded.

Again the difficulty can be raised, from what source either or either obligation could arise in the Prince to keep the laws: namely, whether from the virtue and efficacy of the law itself, and true obedience toward it, as most Theologians judge; or rather from the affection alone of that virtue which is commanded by the law itself: for instance from the affection of justice, if a price be appointed to be paid, of abstinence if fasting be prescribed, as other Theologians contend.

First conclusion. — PRINCES BOTH POLITICAL AND ECCLESIASTICAL ARE BOUND BY THEIR OWN LAWS WITH RESPECT TO THE DIRECTIVE FORCE, BUT NOT WITH RESPECT TO THE COERCIVE FORCE, AND THIS FROM THE MOTIVE OF VIRTUE ALONE, WHICH IS COMMANDED BY THE LAW.

Proof 1. from authority: for l. digna vox, cap. de legibus, is thus expressed: It is a word worthy of the majesty of the ruler for the Prince to profess himself bound by the laws, and l. Princeps ff. de legibus: Obey the law, whosoever thou shalt have enacted the law. Similar things are found in Canon law cap. Iustum dist. 9, in these words: It is just for the Prince to obey his own laws, for then he judges that his rights are to be kept by all, when he himself also shows reverence to them. And lest this seem said merely by way of counsel, it is added: That Princes are held by their own laws, nor can they in themselves condemn the rights which they establish in their subjects, is a just authority of their voice, for if what they forbid to peoples they permit to themselves, they suffer it not. Finally St. Ambrose to the Emperor Valentinian, Epist. 32, thus speaks: What thou hast decreed for others, thou hast decreed also for thyself. For the Emperor enacts the laws which he himself first established. — These things, however, are true not only of the Political Prince, but also of the Ecclesiastical: for the supreme Pontiff is at times held by the laws prescribed by himself, as appears from Decretum 2. part of cause 12. q. 2. c. 20. where Pope Symmachus enacted a law which comprehends even the Pope himself in these words: Let it not be lawful for the Pope in any manner to alienate the estate of the Church on account of any necessity, nor to give it in usufruct; except only houses, which in whatever cities are maintained at no small expense, etc.

Proof of the same by reason: No assignable reason exists why the Prince should be exempted from a law pertaining to all: because human laws are ordained to the common good, and that they may make good those who are of the community: but the Prince no less than any one of the subjects is held to procure the common good, and to labor that he himself become good through the observance of the law: therefore, etc. Moreover natural law dictates that the head cohere with and conform to the other members, else there would be the greatest deformity in the political body, as also in the natural body, if the members did not cohere among themselves and conspire in their offices toward the common good; for, says St. Augustine, 3. confess. c. 8. Every part that accords not with its whole is unsightly: therefore since the Prince is the head of the political body, whose subjects are the members, he ought together with his subjects to conspire toward the common good, which is established and confirmed only through the observance of the laws.

Proof also of the second part, namely that the legislator is not subjected to his own laws with respect to the coercive force, but only with respect to the directive force. The coercive, or constraining force is the infliction of punishment on account of the non-observance of the law: but the Prince cannot be compelled or punished with an inflicted penalty to the observance of the law; since he has no superior by whom he may be compelled, and no one can properly be compelled by himself; seeing that these against the order of nature ought to keep the laws, because they have no corrector on earth, but shall therefore be more severely punished by the supreme judge God, according to that Wisdom 6. Terribly and swiftly shall he come to us, for the judgment most severe shall be upon those who rule. Wherefore David penitent said to God, To thee only have I sinned: as if to say according to the gloss: I acknowledge no superior on earth who can judge or vindicate my sin, save thee alone; and therefore to thee alone, as to him who is to prescribe the condign punishment, I submit my sin.

Proof is finally given of the third part, namely, that the Prince is most bound to keep his own laws by the directive force of the law itself, and likewise from the affection of that virtue which the law itself commands. First, this follows from what has been said; for since the Prince is bound to keep his laws not by coercive force, he must at least be bound to that observance in respect of the directive force. Second, it also follows; for since the Prince is the head of the commonwealth, he is bound to conform himself to the members in those things which by natural law are held bound to obey superiors and to conform themselves to their precepts; otherwise there would be a great discrepancy in the mystical body of the commonwealth with its head; so the Prince is bound in life and morals to accord with the rest of the body in those things which befit equally himself and the people; hence he is bound to keep his laws; otherwise he would live under another law than the people, would differ much from the rest of the body, and would not hold to the rule of right reason: which certainly would redound to the greatest detriment of the commonwealth.

You will say 1: …rior's law binds. An equal has no authority over an equal. No one can command or forbid himself. The Prince is exempt from his own laws. Therefore, etc. — I answer to the three first propositions, that the prince has a twofold relation: he is indeed superior, and inferior: superior, inasmuch as he is the head of the community: but inferior, inasmuch as he is a member, as it were, in respect of himself as superior. To the fourth proposition I answer that the sense is, that the Prince is exempt from his laws as regards their coercive force, because there is no one by whom he can be punished if he depart from the common law.

You will say 2: The Prince can dispense, and exempt whomever he wills from the observance of the laws: therefore, as soon as he has enacted a law, he can dispense with it for himself, and exempt himself from the observance of those which he has enacted: and so it will come about that he is never bound, at least by human law in conscience, to keep his own laws. — I answer, that the Prince is able to dispense and exempt whomever he wills from the observance of the laws for a just cause: otherwise not at all: but that what he is bound to observe in respect of any one of his subjects, that very thing he is bound to observe in respect of himself: nay, more so, because to exempt and dispense with a private man does not turn so much to the ruin and destruction of the commonwealth as for a prince to dispense with himself, seeing that upon him, as upon a model, the eyes of all are fixed.

You will say 3: Against the latter part, nothing stands in the way of the Prince being punished by a penalty inflicted by the law itself, which does not require the sentence of a judge, but is incurred by the very fact: although perhaps it conflicts with his being punished by a penalty which ought to be inflicted by a man.

— I answer, that something does stand in the way, because he who inflicts a penalty in virtue of the law ought to be a person distinct from the one upon whom it is inflicted.

Second Conclusion. — CLERICS, OR ECCLESIASTICS, ARE NOT SUBJECT TO CIVIL LAWS WHICH ARE UNBECOMING TO THEIR STATE AND ORDER: BUT THEY ARE SUBJECT TO THOSE WHICH CONFLICT NEITHER WITH THEIR STATE NOR THEIR ORDER. This Conclusion has two parts,

The first part is proved by all those constitutions whereby Clerics are exempted from the jurisdiction of secular Princes. Thus in the constitutions, chapter Ecclesia sancta Mariae, it is laid down: We, attending to the fact that no power has been attributed to laymen over Churches and over ecclesiastical persons, whose duty it is to obey out of necessity, not out of an authority of commanding; and that if anything has been decreed by them of their own motion which touches even the advantage and favor of Churches, it exists with no firmness unless it shall have been approved by the Church. And in the chapter Decernimus, on Judgments: We decree that the lay power and laymen presume not to handle ecclesiastical affairs, but that Bishops, Abbots, Archbishops, and other Prelates dispose not of ecclesiastical affairs (especially those which are known to be spiritual) by the judgment of laymen: nor on account of their prohibition abandon the exercise of justice in ecclesiastical matters. And in the chapter Nullus iudicum, Title On the competent forum: Let none of the judges presume of himself to distrain or condemn either a Priest, or a Deacon, or any Cleric, or the lesser ministers of the Church without the permission of the Pontiff. But if he shall have done so, let him be sequestered from the Church of God, to which he is acknowledged to have done injury, for such time as until he acknowledge and amend his guilt.

This same is clear by reason: A law which is not honest and consonant with religion has no force or efficacy: but laws which would be adverse to the state and order of Clerics would be neither honest nor congruous to religion; and therefore they would be of no value, nor would anyone be bound to obey them.

The second part is also clear: both from that saying of the Apostle, Rom. 13: Let every soul be subject to higher powers: then from the practice of the primitive Church, wherein it is established that Clerics obeyed the laws of the Emperors; and finally from this, that since they are members of the commonwealth, they ought to study the common good, and to concur in procuring it inasmuch as their sacred state and order permit.

Third conclusion. — SUBJECTS DWELLING OUTSIDE THE KINGDOM ARE BOUND BY THOSE LAWS WHICH IT CONCERNS THEM TO OBSERVE FOR THE GOOD OF THAT COMMUNITY OF WHICH THEY ARE PARTS: BUT IT IS OTHERWISE WITH OTHER LAWS, WHICH ARE NOT ORDERED TO THE COMMON GOOD IN THAT WAY.

The first part is evident: For citizens and subjects are bound to obey the laws of the City and the Kingdom insofar as that observance contributes to procuring and establishing the common good: therefore, where the common good can be procured by those subjects even while dwelling outside the Kingdom and City through observance of the sanctions of the laws, those subjects are bound to keep the laws.

The latter part is also evident: for where the observance of laws by subjects in no way pertains to the good of that community, there is no doubt they are not bound to that observance when they find themselves in foreign territory, whether passing through or sojourning. The reason is, because the jurisdiction of each city, or of a particular Prince, does not extend as regards enacting laws beyond the city or its territory: as Berthold teaches on the first law C. de summa Trinit. number 17. And it is gathered from the law, Omnes populi, ff. de iustitia, et iure: where the law is called the proper Law of a city: therefore just as natural agents do not act beyond the sphere of their activity, through defect of power, so because the activity of jurisdiction is limited within its own territory, the law does not bind beyond it: whence it is gathered, that even if the Legislator should will this most earnestly, and should express it in these very words, he cannot bind a subject existing outside his territory.

Fourth conclusion. — IT IS PROBABLE THAT PILGRIMS AND STRANGERS ARE BOUND TO THE OBSERVANCE OF THE LAWS PRESCRIBED IN THOSE PLACES IN WHICH THEY ARE, EVEN ONLY IN PASSING THROUGH.

Proof 1. From the authority of St. Augustine, Epistle 119, which is written to Januarius, in which he relates how St. Monica, coming to Milan with the intention of migrating and not of lingering, began to be troubled because fasting was not observed there on Saturday; she had however consulted St. Ambrose for the sake of his mother, who answered that he had nothing to teach or could teach, except what he himself did, for if he knew better, he would rather observe that. "While I thought that they wished to admonish us without any reason given, by their authority alone, not to fast on Saturday, he followed me and said to me: When I come to Rome, I fast on Saturday; when I am here, I do not fast: so do you likewise, to whatever Church you may come, keep its custom, if you would not be a scandal to anyone, nor take any to yourself." When I had reported this to my mother, she gladly embraced it; but I, pondering this sentence again and again, always held it as if I had received it from a heavenly miracle. For I have often felt, grieving and groaning, that many disturbances of the weak arise from the contentious obstruction, or superstitious timidity, of certain brethren, who in matters of this kind, which can arrive at no fixed term either by the authority of holy Scripture, nor by the tradition of the universal Church, nor by the usefulness of correcting rites, merely because some sort of reasoning of a thinker underlies them, or because he has himself been accustomed thus in his own country, or because he saw it there, where he thought his journey made him both more welcome to his own people and more learned. Then the quarrelsome stir up questions, so that unless others do what they themselves do, they judge nothing right.

Proof 2. Then because that observance of laws by pilgrims tends to the common good, namely, that strangers conform their manners to those among whom they live, hindering dissensions from arising between strangers and inhabitants, lest scandals and offenses occur; and lest any law come into contempt by reason of non-observance. Then also because it seems equitable that strangers dwelling in a region should be subject to its laws, according to that rule of law in 6. Qui sentit commodum, sentire debet et onus.

It is confirmed by the inconvenience; for if Pilgrims and Strangers, as we said above, were not bound to keep the laws of their own territory from which they departed, and were not bound by the laws of the place through which they pass, they would be bound by no particular laws; and thus if there were any particular law which was observed both in their own territory and in the place through which they pass, they would become wholly immune from it, which is absurd.

FROM these GATHER 1. That strangers and pilgrims passing through places in which some feast is celebrated, if they are there for the whole morning of the feast day, are bound to hear Mass, yet not to linger there in order to hear it.

GATHER 2. That one departing in the morning from his own domicile, in which the fast binds, and arriving at night at a place where the fast does not bind, may sup at night, and eat meat; since in departing he is not bound to observe the laws of his domicile, but may follow the favorable laws of the place through which he passes.

It is abundantly clear from what has been said that every law has the force and efficacy to bind those to whom it prescribes the execution and observance of what it dictates; wherefore in the present Article we must determine briefly what is the force and efficacy of Human Laws, and how great it is. This will indeed be done in the three following Questions: the first will show what Human Laws may be concerned with; the second, how they bind their subjects; the third, what conditions they require, so as truly to be able to compel their observance.

Every law is concerned with human action, that is, an act done knowingly and freely; for law is the rule of human actions: wherefore just as he who lacks the use of reason and liberty is not bound by law, as was said in the preceding Question, so neither does law command or forbid anything other than the use of reason or of liberty. Now since human act is threefold, of which one is morally evil, another indifferent, and another truly good, there remains for examination the difficulty whether law can command such a threefold act.

Note 2. Moreover, human act can be distinguished as twofold: namely internal, and external. That is internal which is elicited by the internal faculties, such as intellection, volition, and imagination; but external is that which is produced by the external faculties, such as the operations of the five external senses. Again, those acts either are purely internal and are not at all connected with external ones, or they are not purely internal, but have a certain connection with external acts. Now an internal act can be connected with an exterior one in two ways: namely, per se, or per accidens. An internal act is connected with an external one per se, either when it is the cause, and as it were the form, of that act, by which reason the will of committing adultery is connected with actual adultery; or when it is a condition necessarily required for the substance of the exterior act considered in the moral genus, in which way attention ought to be connected with vocal prayer, and internal sorrow of contrition or attrition with Sacramental confession, and the intention of baptizing with the external action of the baptizer: for there is no true exterior prayer considered in the moral genus unless it proceeds from some attention, nor true Sacramental confession which does not proceed from internal sorrow: nor true action of baptizing, which does not follow from the intention of the Minister.

Note 3. There is a great difference between those internal acts which are connected with external ones per se, and those which are connected only per accidens. For acts which are connected per se are sufficiently manifested through the exterior ones; for who does not see that the volition of stealing is manifested by the theft committed externally? But acts connected per accidens are not sufficiently manifested through exterior ones; for the exterior recitation of the office does not sufficiently manifest attention and devotion, since it can exist without these. Thirdly, an interior act can be connected with an exterior one not per se, but per accidens, even as regards the moral being of the action, as the motive of penance is joined per accidens to the exterior fast, and the motive of vainglory to the bestowal of alms. — The present difficulty therefore proceeds universally, namely whether Human law, both Civil and Ecclesiastical, can oblige to internal acts, both in themselves, and as they are purely internal, and as they are connected with exterior ones in the three ways already explained. Two points therefore especially come to be resolved in this Question: First, whether and how Human Laws can command all human acts, not only good ones, but also indifferent ones, and evil ones. Second, whether, and how they can command or forbid internal acts.

First Conclusion. — HUMAN LAWS CAN COMMAND ALL GOOD ACTS, AND INDIFFERENT ONES, BUT NOT EVIL ONES. This Conclusion has three parts, of which

Proof of the first: Human Laws can command all that which of itself conduces to establishing and preserving the common good: but all good acts can conduce to the common good: hence human law can command all of them.

The second part is also evident: because indifferent acts can sometimes contribute to the common good, and sometimes oppose it: therefore they can be commanded or forbidden by human laws.

The third part is against certain impious Politicians, who together with the nefarious Machiavelli hold that the Prince, in order to defend his kingdom, can command and permit any evils whatsoever; the falsity of which impious assertion is evident: because an evil law commanding directly militates against the first moral principle, namely, decline from evil. — Then, no one can be obliged to sin: but if anyone were held to obey laws commanding evil, he could be obliged to sin: therefore, etc. The major stands: because no one is held to obey the law of an inferior power in those things which are prohibited by the law of a superior authority: but if anyone could be obliged to sin, he would be held to obey the law laid down by an inferior power, namely a created one, in those things which are prohibited by divine law and authority, which is openly false, according to that saying of Acts 5. We ought to obey God rather than men. — Finally, nowhere is the temporal common good of the Republic procured in a more efficacious manner than when divine laws are observed; for what contributes more to the common good than that all necessity of doing evil be utterly shut off? And what indeed opposes it more than a necessity of doing evil?

You will say: It is often expedient for public peace and quiet to tolerate heretics, so that they may publicly teach their errors in their conventicles, and to make laws lest anyone disturb them in their ministrations; but this is evil of itself: therefore human laws can sometimes command evil things. — I answer, that indeed certain evils can sometimes be licitly tolerated, lest something more grave happen from them; for just as in the natural body it is expedient sometimes to endure the truncation and cutting away of some member, lest the whole body be infected with corruption and perish, so also in the political body it helps sometimes to endure certain less harmful evils, lest greater ones arise whereby the Republic would be altogether ruined: for this reason heretics are tolerated in most kingdoms, namely lest on account of their treachery the whole Republic be harassed by civil wars and presently collapse. Add that it is far different to tolerate evils, and to command them; for we confess that they can sometimes be tolerated, lest graver ones emerge from them; but we deny that they can anywhere be commanded under any pretext whatsoever.

Second conclusion. — HUMAN LAWS CAN COMMAND INTERNAL ACTS, WHICH ARE OF THEMSELVES THE CAUSE OF EXTERNAL ACTS, OR WHICH ARE REQUIRED FOR THEIR INTEGRITY IN THE GENRE OF MORALS, OR CONTRIBUTE TO THEM AS NECESSARY CONDITIONS; BUT NOT THOSE ACTS WHICH ARE PURELY INTERNAL, OR WHICH ARE JOINED TO EXTERNAL ACTS ONLY ACCIDENTALLY. This conclusion embraces four parts, of which

The first and second are proved together: whoever commands or forbids something to be done or omitted also commands and forbids all that which has a necessary connection with it, and without which it cannot exist: but external acts, which are commanded or forbidden by human laws, have a necessary connection with internal acts, which either are the cause of the external acts, as the will to steal is the cause of theft, which is granted; or which are required for the external acts, that they may be judged complete with moral integrity: therefore those same laws which command such external acts, or forbid them, are also held to command or forbid those internal acts which are their cause, or which are desired for their moral integrity.

The third and fourth parts stand similarly, namely that human laws cannot command or forbid purely internal acts; nor those acts which are connected with external ones only accidentally; because human legislative power tends of itself first to the external, and to the common governance of the Republic: but purely internal acts, or those joined to external ones only accidentally, do not pertain to the external and sensible governance of the Republic: therefore they can neither be commanded nor forbidden by human laws. The major stands, and likewise the minor; because human legislative power extends only over those things which can be subject to the judgment and scrutiny of Princes: but those internal acts of men are not subject to scrutiny or judgment, because one man is not naturally subject to another according to his soul, but according to his body: For he errs, says Seneca 3. De Beneficiis, if anyone thinks that the whole man descends into servitude, for the better part is excepted: bodies are liable and assigned to masters, the mind is its own master. Wherefore the Savior, adorable indeed,

warned His Disciples, Matt. 10: Fear not them who kill the body, and are not able to kill the soul, but rather fear him who is able to destroy both soul and body in hell. — It is confirmed. This assertion from ch. 11. Cogitationis de poenitentia dist. 1. No one suffers punishment for thought; which is taken from the civil law, lib. ff. Digest., tit. 11. lib. 1. Likewise cap. Erubescant dist. 32. De Manifestis, where it is said of man, We speak indeed of manifest things: but God is the knower and Judge of secrets. Similarly cap. Tua nos de Simonia holds that the Church judges only of manifest things, not of hidden ones. Which sentiment the Council of Trent indeed confirms, Sess. 24. c. 1. De Reform. Matrimonii: affirming that the Church does not judge of hidden things.

You will say 1. against the two former parts: Christ the Lord, Matthew 18, conferring ecclesiastical power upon His Disciples, says generally, Whatsoever you shall bind upon earth, shall be bound also in Heaven: but internal acts take place upon earth: therefore they are subject to ecclesiastical jurisdiction. It is confirmed, because ecclesiastical power regards the good and salvation of souls; now internal acts contribute most of all to this: therefore power over them also was granted by Christ. — I answer, that general authority granted by Christ must be understood not absolutely, but distributively only; namely, as to those things which are necessary, that the Church may be rightly and fittingly governed, or only as to those things which are consistent with a sensible legislative power, whereby men can communicate among themselves. Hence it is that the authority granted by Christ to the Disciples, and to the Prelates of the Church, deals only with interior acts which have a necessary connection with exterior ones; for since that granted power looks only to the governance of a sensible hierarchy, it also concerns only those acts which are either exterior, or without which such exterior acts cannot exist.

You will say 2: The Church remits sins externally through sacramental absolution: Similarly she commands the faithful, that each year they confess their sins, even purely internal ones. Finally, she can reserve merely internal sins: therefore she has authority over purely internal acts. — I deny the consequence, and to the first I say that since sacramental absolution and penance pertain to the authority and jurisdiction granted by Christ to the ministers of the Church, in whose administration the Priest conducts himself as the minister of Christ, hence that legislative power is not purely human, but rather divine: whence when the Church either bestows absolution for internal sins, or imposes internal satisfactions, or grants indulgences even for internal sins, or dispenses in vows or internal oaths, she does not execute this by the power proper and connatural to her, by which she can command or forbid external acts inasmuch as they contribute to the common good of the society of the faithful: but by a power as it were vicarious, in the name of God and Christ, either by loosing sins, or imposing satisfaction, or relaxing punishments due to sins, and declaring that the obligation resulting from a promise made to God ceases, or finally denying the power of absolving from such and such an internal sin, should the penitent perhaps submit it to the keys of the Church through sensible confession: all which things, as is evident, are not acts of legislative and proper power, but rather of divine power delegated by Christ.

You will say 3: The Church punishes and forbids many merely internal acts: therefore she truly has authority and jurisdiction over them. Proof of the antecedent; for in the First Council of Toledo anathema is pronounced not only against those saying, but also against those believing what is contrary to the Catholic Faith. And in the Clementine, first De haereticis cap. Multorum, Inquisitors of heretical pravity are excommunicated if, by pretext of hatred, favor, or love, of gain, or temporal advantage, against justice and their conscience they have omitted to proceed against anyone where proceeding ought to be had concerning heretical pravity: and cap. Dolentes, De celebratione Missarum, Clerics are commanded to celebrate the divine office, nocturnal alike and diurnal, as much as God shall have given them, studiously alike and devoutly: but heresy, love, hatred, devotion are internal acts: therefore, etc. — I answer, all these acts are thus forbidden, not inasmuch as they are purely interior, but only as they have connection with exterior ones: thus excommunication is decreed for heresy, not as it is a purely sin of the mind, but inasmuch as that internal heresy is manifested by signs or external words. Whence, to the Council of Toledo I say, that it does not bear anathema precisely against non-believers, but proposes as to be believed matters of faith; and consequently declares that they will be heretics who believe the contrary, even if in mind only. Similarly hatred and love are punished as they are joined with external acts: and internal devotion is commanded as it is joined with vocal prayer.

You will object: Human laws can neither command nor forbid those acts over which human power cannot judge: for in vain are things commanded which, if omitted, cannot be punished: yet human laws cannot judge of internal acts: for as there is no desire for unknown things, so neither can there be judgment. — I answer: I deny the major. The reason is because knowledge of acts is indeed required for the coercive force which is placed in punishments by which transgressors are chastised. For that transgressors may be punished, it is necessary that they be convicted of transgression: but that knowledge is not required for the directive force, for by human laws there can be commanded things whether they afterwards are done or not done by subjects being unknown. Nor does it follow thence that no human precept is made concerning them: for although transgressors are not held guilty before men through the manifestation of their transgression, nevertheless they are constituted guilty before God.

It is certain that not all human laws oblige under pain of mortal sin to their observance; because neither do the divine laws themselves impose such an obligation; for petty theft, say of a denarius or an as, is not judged to be mortal on account of the lightness of the matter, although every theft is forbidden both by divine and by human law. Much less, therefore, must every human law be judged to obligate under pain of mortal sin. There remains, therefore, to be determined whether at least some human laws can bind the conscience under pain of mortal sin.

Note 2. It was the erroneous assertion of various Heretics that no human laws can bind in the forum of conscience, nor is one who transgresses them guilty of fault before God. Thus above all taught the Waldenses, as Guy affirms in his book On Heresies. The same error was renewed by John Wyclif and John Hus, as Bellarmine testifies in book 4, On the Supreme Pontiff, chapter 11; Calvin followed them in book 1 of the Institutes, chapter 15 and following, where although he concedes that Prelates and political Magistrates can prescribe certain laws for the preservation of discipline and peace among citizens, he nevertheless denies that they bind in conscience, since conscience, he says, is subject to God alone, and therefore can be bound or coerced only by His law. John Gerson does not seem far removed from this error: in his Treatise On the Spiritual Life, lecture 4, asserting that God alone has the authority to bind in conscience: whence although he admits that human laws bind in conscience, he nevertheless contends that this power does not belong to them by reason of human authority, but only of divine; so that Legislators, in enacting laws, merely declare the obligations which God imposes: while they themselves prescribe no obligation in the forum of conscience: he offers as an example of this assertion the sick, who are bound in conscience to obey their physicians, not because physicians have the authority to command, but because they declare that to which the sick man is bound by natural and divine law.

Note 3. No slight controversy is stirred among Theologians, whether human laws sometimes oblige to their observance even at the expense of life: in resolving which difficulty there are two extremely opposed opinions: one indeed, that of Almain in his Moral Questions, treatise 1, chapter 3, conclusion 4, denying that human law ever obliges to its observance at the expense of life: the other, however, that of Adrian, in book 4, question 3, On the Keys, asserting that every human law which binds under mortal sin must be kept in every eventuality, even with danger to life, unless some law intervenes out of the benignity of the Legislator, which does not expressly import such an obligation. Between these two extremely opposed opinions a Third takes the middle ground, affirming that human law sometimes obliges with peril and expense of life: yet not always. These things premised, let there be

First Conclusion. — HUMAN LAWS, BOTH CIVIL AND ECCLESIASTICAL, CAN BIND IN THE FORUM OF CONSCIENCE, SO THAT THEIR TRANSGRESSION IS GUILTY BEFORE GOD.

Proof 1. of Civil Laws from Scripture; for it is said in 1 Peter 2: Be ye subject therefore to every human creature for God's sake: whether it be to the king as excelling; or to governors as sent by him for the punishment of evildoers… For so is the will of God. In 2 Peter 1 [2 Peter 2] it is said that those who despise government are reserved unto the day of judgment to be tormented. And to the Romans 13: He that resisteth the power, resisteth the ordinance of God; and they that resist, purchase to themselves damnation. Which Chrysostom and other Interprets there understand of damnation also before God. And verse 5: Wherefore be subject of necessity, not only for wrath, but also for conscience' sake. He adds there, verse 6, that Princes are God's Ministers, whence he who resists them resists God; and therefore offends God.

The same is proved of Ecclesiastical Laws; first indeed by the authority of the Council of Constance, sessions 8 and 15, where the errors of Wyclif and John Hus are condemned, denying that any human law, whether Ecclesiastical or Civil, binds in conscience. This very thing was defined in the Council of Trent, session 7, canon 8, in these words: if anyone shall say that the baptized are free from all the precepts of holy Church, whether written or handed down, so that they are not bound to observe them: let him be anathema. — The same is evident from various testimonies of Scripture; for Christ pronounces thus: if he will not hear the Church, let him be to thee as the heathen and publican, where Chrysostom, homily 16, remarks how He set the publican forth as an example of supreme wickedness. Therefore not to obey the precepts of the Church is supreme wickedness. The same Christ says in Luke 10: He that despiseth you, despiseth me. And Paul to the Hebrews 13: Obey your prelates, and be subject to them: for they watch as being to render an account of your souls. Finally the same Apostle says in 1 Corinthians 7: I command, not I, but the Lord. And Acts 15: the Apostles say: It hath seemed good to the Holy Ghost and to us, to lay no further burden upon you than these necessary things, etc. In which places is designated the special power of Ecclesiastical laws to bind in the forum of conscience, as they proceed from human Legislators, otherwise Paul would not say: I command, not I, but the Lord, nor would the Apostles say: It hath seemed good to the Holy Ghost and to us. Nor does this last place contain only counsel, as the Heretics will have it: for those words, burden, and necessary things, indicate that a precept binding in conscience is contained therein.

Both parts are proved by reason: First indeed, every law which is enacted by an authority derived from God can bind in conscience: but laws both Ecclesiastical and Political are enacted by an authority derived from God; and consequently they can bind in conscience. The major stands: for by this reason the Old and New Laws are held to bind in conscience, because they were enacted and promulgated by divine authority, or emanating from God. The minor also is clear from the foregoing texts of Scripture, whereby both Ecclesiastical and Civil power are declared to be delivered to men by God. Hence Proverbs 8, God Himself says: By me kings reign, and lawgivers decree just things. — Second, the power of binding in conscience is found in every imperfect community, which consists of husband, wife, children, and servants: therefore much more ought it to be found in a perfect community, which consists either of Prelates and faithful subjects, or of Prince, Magistrate, and Citizens. The antecedent is plain, both from Deuteronomy 21, where it is commanded that the disobedient and stubborn son be punished with death. And from the Apostle to the Ephesians 5, where he admonishes wives to be subject to their husbands. And from 1 Peter 2, where servants are commanded to be bound to obey their masters. The consequence also is clear from the fact that it is a greater debt to obey the Prince for the good of the Republic, than the father of a family for the good of one house; because the more universal a good is, the more divine it is. — Third, if human law, whether Ecclesiastical or Civil, could not bind men unto guilt, and in the forum of conscience, it would follow that it would most often be frustrated of its effect; for it often happens that one can violate a law without peril of incurring the prescribed penalty; and consequently, if he were not held to keep it from conscience, not infrequently he could transgress it.

You will say 1: He alone can bind unto guilt, especially mortal, who can deprive man of grace, who has the power of binding in the forum of conscience: but no man can deprive another of grace; just as none can infuse grace into him: likewise the Legislator, at least the Civil one, has not the power of binding and loosing in the forum of conscience: therefore either no law can bind in conscience, or at least Civil and Political ones cannot. — I answer to the major, that only its first part is true concerning the primary and per se privative power of grace, which belongs to God alone: but not concerning the secondary power, and that by reason of a decree or statute enacted by an authority derived from God; he who transgresses that decree, by that voluntary transgression deprives himself of grace meritoriously: but he is deprived of the same efficiently by God, who does not wish further to preserve grace in the soul of the man transgressing the law. To the other part of the major truly I say that he alone can enact a law in whom is the power of binding and loosing in the forum of conscience: either judicial, such as is exercised through acts of the keys, and through which sins are remitted or retained: or imperative and constitutive of decree, whose observance makes the act good: but whose non-observance makes it evil.

You will say 2: The power of an inferior Legislator cannot induce obligation in the judgment and forum of a superior power: but the forum of conscience is the forum of a superior power, namely God: therefore the power of a human Legislator cannot induce obligation in the forum of conscience. The minor is plain: The major also seems manifest: for ordinary judges cannot induce obligation in the judgment of a superior Prince, nor Bishops in the judgment of the Pope: because doubtless their power is exceeded by the judgment of a superior power. — I answer, distinguishing the major: the power of an inferior Legislator cannot induce obligation in the forum of a superior power against, or beyond the order of the superior power: this I concede: but that it stands beneath the order of the superior power, I deny the major: and to its proof the answer is made in the same way, namely that ordinary Judges, or Bishops, cannot do this against the order of the Prince, or Pontiff, but well indeed as standing beneath their order: just as if a Prince should give an ordinary Judge the power to enact a law binding in his own forum: so however it happens in our case: for by the very fact that human law is just, it stands beneath the order of natural Law, or divine, from which it participates the power of binding even in the divine forum, which is the forum of conscience.

You will say 3: The power of secular Princes is merely temporal and political: therefore it cannot extend itself to anything spiritual: nor consequently bind unto guilt, and in the forum of conscience. — I answer, that the power of secular Princes is called temporal by reason of its object, because considered in itself it is wholly about temporal persons, things, and actions; by reason however of the obligation which it induces, it can be called spiritual, and bind in conscience: for although per se and primarily it regards the temporal good of the Republic, and does not per se and primarily intend to bind consciences under the penalty of eternal damnation, but only to command something for promoting such a good under a temporal penalty proportioned to attaining its end: nevertheless by consequence, because it commands this as standing beneath the order of divine power, and in virtue of that power it can bind in the forum of conscience as to guilt and eternal penalty, it obliges unto guilt and in the forum of conscience.

Second Conclusion. — SOMETIMES BOTH KINDS OF LAWS, ECCLESIASTICAL AS WELL AS CIVIL, OBLIGATE UNDER PAIN OF MORTAL SIN.

Of Ecclesiastical laws indeed this stands: for it is agreed among all, that many are the Ecclesiastical laws which oblige to their observance under pain of mortal sin: such is the law of the quadragesimal fast, of making annual confession, of communion at Easter, etc.

For those in political authority the same truth is likewise evident from the Apostle, Rom. 13, where he says that they who resist the higher power acquire for themselves damnation; which the Holy Interpreters understand there of eternal damnation. But eternal damnation is incurred only on account of mortal sin; therefore human law, even political, can sometimes bind under mortal guilt. That this is so Saint Augustine confirms in his Epistle 50., which is to Boniface, count and prefect of the imperial armies, who, when he had asked Augustine whether with a safe conscience he could compel the Donatist heretics by force of arms so that, according to the imperial edicts, they should receive themselves into the bosom of the Catholic Church, answers that Saint Augustine judged this not only licit but even most necessary.

Since, he says, many have been corrected by those laws and are corrected daily, and give thanks that they have been corrected and delivered from that furious perdition. And those who hated now love, and as much as they detested the most salutary laws as troublesome to themselves while in their madness, so much do they rejoice when health has been restored.

Next he subjoins:

When Emperors establish many laws for falsehood against truth, they are proved good believers and are crowned as persevering. But when for truth against falsehood they establish good laws, those who know are frightened and those who understand are corrected. Whoever therefore does not wish to obey the laws of Emperors which are enacted against the truth of God acquires a great reward. But whoever does not wish to obey the laws of Emperors which are enacted for the truth of God acquires a great punishment, namely before God, before whom a great punishment is incurred only on account of mortal sin.

But by what means it can be discerned when human laws bind under venial or under mortal sin, here four rules are to be observed. First. That law is judged to bind under mortal sin which is held to be such by the consent and custom of the universal Church, as the law of keeping the quadragesimal fast by those who are detained by neither labor nor infirmity nor other excusing impediments. — The Second Rule: when human law commands or forbids something that is grave and most conducive to the common good, it is judged to bind under mortal sin; hence no human law can bind under mortal sin in light matter: because the obliging force of human law is derived either from natural law or from divine law; but God by his natural or divine law never imposes an obligation unto mortal fault when the matter is light, lest all be tempted; therefore neither can the human Legislator bind under mortal sin unless the matter be grave. Hence the human Legislator cannot command a light thing, and one of least moment, under mortal sin; because if human law is to bind, it must be just; and although the reason for commanding a light thing may be just, yet it is not just to command it under mortal sin, just as neither is it a just reason to command a grave thing under venial sin only. Wherefore Prelates cannot command light things under pain of excommunication. Therefore in the chapter Nomo Episcoporum, cause 11, question 3, from the Council of Meaux, chapter 56, it is established that the sentence of anathema unto retention unto death is to be held, and ought to be imposed only for a mortal crime, and upon those who could not otherwise be corrected. — The Third Rule is, that a law is judged to bind under mortal sin when it commands or forbids something under a graver penalty, e.g. of death, mutilation, excommunication, irregularity; for the severity of the penalty is an argument that the thing commanded is most grave. — Finally the Fourth Rule is, that a law binds under mortal sin when the thing commanded, although light in respect of the reason of its object and matter, is nevertheless grave in respect of the end which the Legislator intends, and to which the law or precept is ordered. Hence, because it is said 1. ad Tim. 2. that the end of the precept is charity, that matter is judged grave which is necessary for the love of God or of neighbor. Likewise, because law is ordered to the common good, that will be grave matter which is necessary for establishing and defending the good of the Republic or of the community, although in itself it be light: whence, since in Religious Orders it is forbidden that the affairs of a Monastery or Convent be divulged to seculars, although this divulging may seem light in some by reason of the matter, nevertheless it is grave by reason of the common good.

Third Conclusion. — Human laws do not always and regularly oblige to their observance at the expense of life, and still less at the peril of graver loss. The reason is, because not even merely positive divine laws are judged to bind thus, unless God, who by his supreme authority can command and bind as he wills, signify otherwise, or his will be otherwise made known from elsewhere: accordingly Christ the Lord in Matthew 12 relates the deed of David who in 1 Reg. chapter 21 ate the loaves of proposition out of necessity, although it was permitted only to Priests to eat them; he does not condemn that deed, nay rather he uses it to blunt the calumny of the Pharisees whereby they were carping at Christ's Disciples because on the Sabbath day they plucked the ears of corn and ate; and in Luke 14 Christ the Lord likewise demonstrates to the Pharisees that it is lawful on the Sabbath day to draw out an ass which had fallen into a pit, although otherwise all work is forbidden to be done on the Sabbath day.

Fourth Conclusion. — Human laws bind at the expense of life when the observance of them conduces more to the common good than the death of one man; but otherwise when the life of a man is of more worth than the observance of a human law.

The first part of the assertion is evident; because man is a part of the Republic not only as regards those things which he possesses, but also as regards himself: therefore where the public good must be preserved and defended, he is bound to expose his life to danger; for since in the Republic there is power necessary for its own preservation and for the common good — otherwise its governance and preservation would not have been sufficiently provided for — hence it is that a precept can be brought forth binding one to do something on account of the good of the Republic even at the expense of life: for just as every man has the power of exposing a part of his body to loss when that is necessary for the preservation of the whole, so the Republic has the power of exposing individuals, who are its parts and members, when the necessity of the whole, or the common good, requires it. — Hence it is that the Soldier is bound, at the peril of his life, not to desert his station, and also to attack the enemy at the precept of his commander: because the desertion of the station, and the failure to attack, would harm the public good more than the loss of that soldier's life harms it. — Hence likewise Parish priests are bound, even at the risk of life, to reside personally in their parishes, if the Bishop so commands, even in time of pestilence or of some other imminent danger of death; for the loss of the life of that parish priest is not of such moment as the salvation of the people, which can be procured through his personal and actual residence, etc.

The second part of the assertion is also evident; for where no imminent danger of the public good is present, everyone is bound by natural law to preserve his own life; and this holds in practice in the Church: for although it is forbidden under pain of excommunication, and therefore under mortal sin, that anyone communicate with heretical excommunicated infidels; nevertheless it is lawful to have participation with them, as is had in cause 11, question 3, chapter 103, where it is established that it is lawful in many cases necessary for society and for the sustenance of life to communicate with them.

You will say. The Rule of the Carthusian order commands those same Religious not to eat flesh meats even at the risk of life: but abstinence of this kind is not judged to conduce more to the common good than the life of many Monks who are an example of sanctity to very many others: therefore it is false that anyone is bound to observe a human law even at the peril of life only, when from that law a greater good follows than from the private good of a private man.

— To the antecedent Almainus, Vaior, and certain other Parisian Doctors respond that that Rule not only does not bind, but also that if danger is present the Carthusian is bound by the law of nature to eat flesh meats, as if by the counsel of Physicians that eating is judged necessary for preserving life and restoring health; and that they sin against the natural law of preserving their own life if they abstain from them. — Some judge, with Victoria, lecture De Temperantia, n. 8, that a Carthusian placed in extreme necessity of infirmity can indeed licitly abstain from flesh meats; yet he is not bound, but may licitly eat them, if that is judged altogether necessary by the judgment of Physicians for the defense of life. Which assertion I certainly judge more probable: but John Gerson, Chancellor of Paris, seems to weigh it on both sides with many arguments in his Treatise De non esu carnium a Carthusiensibus, which he published against those who judged those Religious undiscerning and inhuman on account of this statute. He says, moreover, for the affirming side: first, that the Carthusians are bound to this by no express vow: but only by the force of a certain ordinance or positive institution, lest anyone presume to attempt this, and that not under pain of mortal sin, but only of the discipline of the Order. Second, that in this constitution the case of extreme necessity and infirmity ought to be excepted. Third, that the Carthusian is not held expressly to be bound to those things even in the case of extreme necessity: with which clause, were it added, one acting otherwise could not be excused from iniquity. Whence he subjoins that, when he had once asked the most celebrated men of that order what they would do if in the desert they had nothing but flesh meats to eat: they answered that without scruple they would eat of them for the sake of preserving life. Hence too it came about that, when a certain one of the Carthusians was making a journey on horseback, and being reduced to extreme hunger and thirst, the provisions failing, had relieved his thirst with the blood of the horse, the matter having been reported to the Brethren, and the extreme necessity in which he had been placed becoming known, he was received free from all discipline of the Order. — He adds, however, for the opposite opinion, that the case of extreme necessity was not excepted: both because it is sufficiently understood even if not expressed, and also because it was to be feared lest, if any case had been distinctly excepted, men would thenceforth have seized the occasion of extending the exception to other cases: and thus, succeeding times intervening, strength would have ceased to be in that statute. Furthermore, it is licit to do many things, whether temporal or spiritual, by which and in which a man shortens his life, or incurs the weakness of infirmity: which he proves first concerning temporal things, both because otherwise man would be held to devote himself to the study of Medicine, or continually to use the counsels and regimens of Physicians: because from the omission of these we fall into various illnesses, from which follows the shortening of life: and also because otherwise everyone would be held to desist from works and acts from which follow weakenings of the body and for the most part an acceleration of death, such as are frequent in almost every state of men. It is proved secondly concerning spiritual things, for it is certain that for the attaining of many spiritual things it is licit to suffer the debilitation of health and the shortening of life. First, for obeying God: whence it is licit even to suffer death in this case. Second, for satisfying for one's own sin, which is evident from satisfactory works. Third, from charity, for satisfying for the sins of others: which is declared from the foundations of very many Monasteries made so that those who live in them may mourn and do penance for the sins of the founders and of others. Fourth, for avoiding grave scandal: for then we are held to undergo death itself: whence the Apostle, 1 Corinth. 8: if meat scandalize my brother, I will not eat flesh forever. Fifth, for acquiring virtues in oneself or in another: whence the labors, vigils, and sweats of holy men accomplish nothing except that they may be in the exercise of virtue, or that they may inflame others to virtue: whence it is licit for a man to preserve chastity even at the peril of life, nor is he bound who wills it to seek a perpetual dispensation from the supreme Pontiff, if there be no other way of preserving life than the conjugal union, by the just counsel of wise Physicians. But if the Carthusians do not keep that statute in order that they may obey God, nevertheless they keep it in order that they may satisfy God for their sins: they keep it from charity toward their neighbor, satisfying God by such abstinence for the sins of that neighbor, even as for their own proper sins: they keep it lest they be a scandal to the Brethren if they used flesh meats: finally they keep it for the exercise of virtue and for the extirpation of their vices, nor in those cases where the question concerns only the shortening of life or infirmity do they think themselves dispensed. — Gerson adds, that custom so changes nature that flesh meats can be poison to certain stomachs: even though by the eating of flesh meats there might be some certain prolongation of future life: since however it would be uncertain whether afterward that life would be worse, nevertheless they would not have to eat of them: even as the more prudent Physicians do not counsel certain potions which, although they seem suitable enough for the present condition of the sick patient, would nevertheless produce a sluggish and torpid nature by use. Whence he subjoins that it is known to him that a certain most learned Carthusian asserted that more of the Brethren would die or fall ill in that religion if they used flesh meats: because vigils, solitude, and quiet, etc., exercises of this kind of devotion impede digestion, and so leave some crudity in the stomach. It can be added, because scarcely or rarely do we conduct ourselves temperately and soberly amid these enticements of the palate. Gerson concludes that whole work, saying that the prudent Director ought to attend not so much to labors, vexations, and the shortening of life, as that the senses not be rendered dull and stupid through excessive assiduity in fasting or weeping, whence it comes about in consequence that the judgment of reason is overturned.

The scope of the present Question is to determine whether the promulgation of a law by the authority of the Legislator must necessarily be desired for its efficacy and obligation.

Note 1. Laws are promulgated as soon as they are published to the people, and are, as it were, promulgated thereby, says Pompeius Sextius: hence promulgation is the publication of a law, or the notification made to the community by the authority of the Legislator. Now it is certain that some measure of promulgation of a law is necessarily required for its efficacy and obligation in act: first because Law stands in the manner of a rule and measure of human acts, to which men ought to conform their actions lest they stray from their right end; but they cannot do this unless the law be made known to them, nor can it be made known except by promulgation: therefore in order that it may bind, some promulgation of it is necessarily desired. Then also because law by its nature is directive and illuminative; but what lies hidden in the will of the Legislator, or in the praetor, cannot direct nor illuminate subjects: whence it is deservedly said in the chapter De Legibus, that the most sacred laws do not bind men unless they ought to be understood by all. Finally, because since the will cannot be borne toward what is unknown, it would follow that men would be bound to the impossible if they were held to keep the law before its sufficient promulgation. — I have said advisedly that some measure of promulgation is required, because promulgation is not desired equally in all laws, but variously, and according to the nature of each: for the law of nature becomes known to men in one way, and the divine positive laws, both Evangelical and Mosaic, were promulgated in another. Whether, however, this promulgation pertains to the very essence of law, so that it has no power of binding unless it had first been promulgated, or rather is only a condition for desiring its power of binding, must be determined in the present place.

Note 2. A law can be considered in two ways, namely insofar as it is a rule not yet applied, insofar namely as it has already been constituted with the very Legislator, and insofar as it proceeds from him it has the power of binding; or insofar as it is a rule applied in some way to subjects who, knowing that law, must conform their acts to it, that they may be done rightly and consequently well.

Note 3. As regards the acceptance of a law by subjects, first it is certain that it is not necessary in order that natural and divine laws bind: for whether the people wish to give their assent to these laws or deny it, they are bound no less. It is likewise certain that there is here no question of acceptance of a law by individuals interiorly: on this account almost no law would oblige, seeing that there is no human law which does not seem burdensome to some subject, who would forthwith reject it, if that were conceded to his will. Nor indeed is the question here of non-acceptance of a law by the people joined with the connivance of the superior; for in this case it is certain that the law does not bind, since in order that a law bind, there is necessary the will to bind in him who made the law: but the will of the Legislator would then cease if, with the people refusing observance of the law, he were to connive. — Finally the difficulty need not linger over non-acceptance which may have been derived from long custom on the part of those acting contrary to it: for, as will appear below, a human law contrary to long custom is abrogated; therefore the whole difficulty concerns voluntary non-acceptance which is not founded upon long custom of those acting against it. On this matter consult the jurists.

First Conclusion. — A law considered as a rule applied to subjects essentially requires promulgation: but not so insofar as it is considered as constituted with the Prince himself.

The Conclusion is evident both from what was said in the first Note, and because law is a certain instrument of governance by which the subject is ruled by a superior after the human manner: that is, as understanding and willing, for which it is necessary that the will and decree of the superior be intimated to the subject, that the inferior may accommodate himself thereto knowingly and freely; and because law is directed not to one private person, but to a perfect community, therefore the intimation must be public. Hence, when made in a public manner and suited to the community, that intimation is called promulgation. — Moreover, law is a certain precept: but a precept has not the power of binding unless he who commands manifest and intimate his will: for neither God nor any other Legislator is held to command anything from the fact that he decrees with himself something to be done or not done, unless he signifies it: therefore, etc.

You will say 1. The natural law is truly and properly called a law, and it binds, and accordingly has the power of binding: yet it cannot be assigned when it was promulgated. Likewise the eternal law, by the judgment of many, is reckoned among laws properly so called: but it could not have been promulgated throughout all eternity, as is evident, nor can it be said when it was promulgated in time: therefore, etc.

— I answer, the law of nature was sufficiently promulgated from this very fact, that God implanted it in the minds of men to be known naturally: whence the Psalmist: The light of thy countenance O Lord is signed upon us. — To the second I say that the eternal law, regarded on the part of God, was promulgated both by word and in writing from eternity: because it was promulgated in the divine Word, which is eternal; and furthermore in the book of life, which is eternal also; and these are the two ways by which every law is published, namely either by word or in writing, says St. Thomas 1. 2. q. 91. art. 1. Or rather I judge one should answer with the Doctor in t. d. 3. q. 1, where he treats of the obligation of baptism, that promulgation seems necessary only for positive law: No one, he says, is held to any divine precept unless it be preached to him by someone fit and authentic, or by credible report and the testimony of good men whom anyone ought rationally to believe; and I understand this of positive law, because it is not known interiorly in the heart. By which words he indicates that promulgation seems necessary only for positive laws: which is most true of that promulgation which is made through knowledge received from without: for otherwise it is certain, as we just now said in our first answer, that the natural law is manifested in our minds signed with divine light upon us. It is likewise certain that the eternal law is intimated to us by some sign: namely either by the natural law itself, or by other divine laws, which flow down from that eternal law as rivulets from a fountain.

You will say 2. If there were any reason why promulgation is said to be necessary in order that a law have the power of binding, it would be chiefly because by promulgation the law becomes known to the subjects who are held by the law: but this reason is null, for men are held to many things which they invincibly ignore: e.g. they are held to the observance of the law of nature even though they ignore it invincibly. Likewise they are held to receive baptism, according to that word of Christ John 3: Unless a man be born again, etc. Likewise the possessor in good faith is bound to restitution as long as he detains what belongs to another, before prescription has run. Likewise human contracts are invalidated by human law, whether that law be known or unknown, as is evident in clandestine marriage, and in impediments of marriage, and irregularities, which bind even the unlearned who invincibly ignore the law.

— I answer to the major: promulgation is required so that the law may become known to subjects, who are bound by it through common knowledge, but it is not necessary that it become known by private knowledge. Now there is common knowledge when the law is promulgated. If this is brought forward in the objection, they are arguing about private knowledge.

The second part is proven, namely that a law taken as a rule residing in the legislator himself alone does not essentially include promulgation. For in that way it has its whole power of binding from the very will of the legislator: but the will of the legislator, in order to decree that a law have obligating force, has no need of any external sensible sign by which to establish its decree; and consequently the law thus considered does not require promulgation. Moreover, law is an act of prudence, and also of authority existing in the prince: but an act of prudence and of authority dictating that something is to be done can exist both in the practical judgment and in the will of the prince before any external sign; and therefore the law, regarded inasmuch as it is a rule constituted by the prince, does not require promulgation. Finally, as soon as the law is conceived by the Prince, it is held apt to induce obligation: for it is conceived and instituted precisely that it may bind: but this aptitude suffices for the essence of a law; therefore for this reason a law does not essentially require promulgation. — Nevertheless I judge it must be said generally that laws do essentially require promulgation: both on account of the reasons expressed in the prior assertion, and because, as Gratian says, cap. in istis, dist. 4, Laws are instituted when they are promulgated, and are confirmed when approved by the morals of those who use them.

Second conclusion. — Civil laws, whether imperial or royal, are not held to bind subjects unless they have been promulgated in the Provinces and Kingdoms for which they were constituted.

This indeed is clear from the authentica, Ut novae constitutiones, where the Emperor Justinian decreed that his law had no force unless after it had been presented to the Metropolitans of the Provinces. Nor does it stand in the way that the Emperor speaks there only of imperial constitutions which pertain to testaments; for the reason of that law is no less valid for other matters, as the rubric speaks of all laws, which is this: Ut novae dictae constitutiones post insinuationes earum post duos menses valeant. Now it is an axiom received among Jurisconsults that a rubric stands as a law when it gives a complete sense, inasmuch as it does not conflict with the text, and that it has the power of extending what is stated more strictly in the text. Wherefore laws speaking more strictly are held rather to be a kind of example of a rubric already possessing the force of law than laws themselves. And this is so true that Pius IV, in the Bull on the declaration of the time for observing the decrees of the Council of Trent, cited this rubric as law in these words: Quia in iure crimimum sancitum est, ut constitutiones novae vim nonnisi post certum tempus obtineant, etc. Hence the reason of the rubrics of civil law differs from that of the rubrics of Canon law, which were written in the private sense of Gratian, and neither approved absolutely by Pontifical or royal authority nor accepted by the universal Church as laws. There is added this reason: because it cannot sufficiently be presumed that that law has come to the knowledge of subjects which was not published in that Province in which they dwell. Hence a royal law does not bind unless it has been promulgated according to the custom of that kingdom in which it is brought forth: hence there prevailed in Gaul the custom that Royal Constitutions be promulgated in parliaments; and thence they be sent to the interior benches of the judges of Provinces and regions; nor are they held to bind before they have been published in those places. But as regards ecclesiastical laws, the opinion of many has long prevailed that they do not have power of binding throughout the whole world, however much they may have been promulgated at Rome or elsewhere, unless they be likewise promulgated in each individual Province.

Which is proven. First: The reason why an imperial and royal law ought to be published in each individual Province is that it cannot sufficiently be presumed to be promulgated, so as to come to the knowledge of subjects, that law which is not promulgated in the Provinces: but the same reason holds with respect to Papal laws. Second: Because if in any Province the law of the Roman Pontiff be not published, the people will have some ground for judging either that no such law was issued, or that if it was issued, it is not the mind of the supreme Pontiff that it should bind in that Province. Third: Because Councils, in certain laws which they enacted, declared that they did not bind until after they had been published in each Diocese by the Ordinaries of the places. Thus the Lateran Council under Innocent III, cap. 22, and we have it in cap. Cum infirmitas, de praeemptionibus et remissionibus, decreed that physicians were at length bound by that constitution which commands them, when they are called to the sick, before all things to induce and admonish them that they call in physicians of the soul, that is, that they confess sacramentally, when it had been published by the ordinaries of the places: and the reason of this is the same as of the other ecclesiastical constitutions. Fourth: This same truth is urged from the ancient practice of the Church: for it is established that it was customary for the decrees of the Roman Pontiffs and of Councils to be published in the Provinces, and then they began to bind. Thus we read in Tertullian, book De Pudicitia, cap. 1, that the Decree

of Zephyrinus, Roman Pontiff, for reconciling penitents against the Montanists was affixed to the doors of the Churches and read in the Churches. Thus Dionysius, Bishop of the Olympians, Epist. ad Soterem, attests that there was read to him by Soter, to whom he wrote the letter sent, one sent also by Clement, and that on the Lord's day in the mouth of the faithful. Thus the constitution of Stephen on not rebaptizing heretics was sent through the Provinces, as Cyprian is witness, Epist. 74, which is to Pompey. Thus the decrees of the Nicene Synod, as Marius Victorinus relates, book 2, adversus Arium, were sent through the whole world. Thus also the decrees of Sardica, transmitted together with those of Nicaea, writes Theodoret, book 1, Historicae, cap. 9, and book 2, cap. 8. Thus that of Chalcedon, directed by Leo to the Bishops through the Provinces, as he himself teaches us, Epist. 71 and 81. I pass over others. — And hence it came about that many Councils less noteworthy in the number of their Fathers, because they had been received and approved in the Provinces to which they were sent, had now the force of Councils of the whole West or East, now that of the universal Church. Hence also it came about that many constitutions of the supreme Pontiffs do not bind in many parts of the world, e.g. the Bull of the Lord's Supper, which does not bind in Gaul, Germany, Poland. Hence also it is that Innocent I, Epist. ad Exuperium Tolosanum, as it is related in cap. Posuisti, dist. 82, decreed that the law which Pope Siricius issued against incontinent Deacons and Priests, whom he decreed to be deprived of every honor, did not bind those to whom, as he says, this is not proven to have come.

You will object 1. If our proposition is true, it will follow that scarcely any Papal laws bind; for first, the Decretum of Gratian was compiled together by his private authority, and was never promulgated. Second, the five books of Decretals, which were compiled by Gregory IX, seem to have been promulgated in the Bolognese Academy alone, as is gathered from their preface. Third, the same is also the reason for the sixth book of Decretals, as the gloss well observes in the date of that sixth book. Fourth, the Clementines, which John XXII, shortly after the death of Clement V, by whom they were published, gave to the public, seem to have been promulgated in the Roman curia alone.

— I answer: first, the Decretum of Gratian does not bind: nor even that which perhaps some would not think, inasmuch as it is lectured upon in Academies, because many things are taught in the schools for the investigation of antiquity and for discipline, and not for practice. Whence neither does whatever is contained in civil law bind, although it be lectured upon in Academies. Therefore the Decretum of Gratian binds on the part wherein it contains the statutes of Councils or Pontiffs formerly promulgated in the Provinces, or even inasmuch as it contains certain things approved by the custom of courts. Second, the five books of Decretals were not only directed to the Bolognese Academy by Gregory IX, but also to all the Provinces, in which, he writes, they were promulgated and received, as Matthew Paris records under Henry the third, King of the English. Third, the Liber sextus of Decretals was not promulgated in Gaul. It was published by Boniface VIII, between whom and Philip the Fair there had blazed up grave enmities, which prevented its being promulgated in this kingdom. Only that in this book has authority which otherwise had its own vigor and authority: such are those things which were taken from the Council of Lyons and others received in Gaul: such also are those things which were received either by the custom of courts or by the morals of those using them: e.g. that the Bishop is threefold only, by whom anyone can be enrolled in the number of Clerics: of origin, of benefice, or of souls. Fourth, the Clementines were for the most part received in Gaul: for they coalesce from the decrees of the Council of Vienne, which indeed was convoked in Gaul, and of which the Gallican Bishops were a great part. Then this Clement, made Pontiff out of being Bishop of Bordeaux, summoned all the Cardinals to Lyons, and transferred the Roman curia into Gaul, where it persevered for 70 years and more: wherefore whatever was promulgated by that Pontiff in the curia, it is certain that it was promulgated in Gaul, nor can it rationally be denied that it was promulgated in the individual Provinces of Gaul. Fifth, the Extravagantes communes of John XXII were promulgated also in Gaul: inasmuch as he was the successor of Clement V, a Gaul by nation, declared supreme Pontiff at Avignon in Lyons: nor does it therefore seem it can be denied that they were promulgated in the individual Provinces of Gaul. But those of Boniface VIII were not received on account of the reason given above. Others which are of supreme Pontiffs who sat in Gaul seem to have been promulgated in the individual Provinces. Others finally either ought not to have been promulgated, since they merely absolve from some obligation, or were received by the morals of those using them and by the custom of courts.

You will object 2. Everywhere must be avoided those who are excommunicated by name in any Diocese, on account of the utility of Ecclesiastical communion, as is clear from causa 11, q. 3, although the sentence of excommunication was not everywhere promulgated. Likewise, if anyone knows a place to be under interdict, he cannot celebrate in it, but is bound to observe such an interdict, as is clear from Innocent III, cap. 1, De pastulatione Praelatorum, even if such an interdict has not been everywhere promulgated: therefore by parity of reasoning a Papal law binds, although not promulgated in the individual Provinces.

— I answer the first part of the argument by distinguishing in this manner: That they are to be avoided by each and everyone on account of the sentence of excommunication precisely. I deny: by force of the Ecclesiastical law everywhere received, which provides that they be avoided. I grant. You have this law cited for the cause, and the question.

To the other part I answer, distinguishing in the same manner: but I add that the authority of Innocent is not silent on the matter: because there it treats of the postulation of the Bishop of Auxerre as Archbishop of Sens made by the Canons of the Church of Sens, which Bishop had not observed the interdict laid by the authority of the Roman Pontiff upon the lands of the king of France: but the aforesaid Bishop excused himself for not having observed the interdict, because the sentence of interdict had not come to his notice: neither through letters of the Pope, nor through letters of the Legate, who had published the sentence, nor through the mandate of any executor; and moreover because the said King held no land in the Diocese of Auxerre. But Innocent decrees that the reason of these excuses is not to be admitted: indeed that of the latter, because the whole Diocese of Auxerre was subject to the King of France: but the supreme Pontiff had commanded that the land of the King of France be subjected to the interdict, and the Legate had interpreted the mandate of the Pontiff concerning all the land which lay under the dominion of the king: but that of the former, because in the Metropolitan Church of the same Bishop of Auxerre, namely at Sens, this sentence of interdict had been promulgated, received, and observed: wherefore this authority does not pertain to the present matter.

You will object 3. Those who have been declared saints at Rome ought to be held as saints everywhere, even if the promulgation of the decree of their sanctity has not been made through each single Province: therefore an Ecclesiastical law obliges, even if it has not been promulgated through each single Province.

— I answer the antecedent by distinguishing: in so far as their office ought to be performed through each single Province, or their feast celebrated, I deny; for unto that it is necessary that the law be promulgated in the Provinces; in so far as they are held in veneration as persons worthy of veneration, I grant; for unto that no law is required, but it suffices that the person be declared worthy of veneration.

You will object 4. The Canons of faith oblige, even if they have not been promulgated through the Provinces: therefore equally, in order that Canons and Pontifical laws concerning morals and discipline may oblige, it is not necessary that they be promulgated in the Provinces.

— I answer by denying the consequence, for there is a disparity, in that the Canons of faith are merely declaratory of divine law: but divine law has been promulgated; and therefore no new promulgation is necessary in order that the Canons of faith may oblige: whereas Pontifical laws are not sufficiently promulgated unless they are promulgated in each single Province.

Finally, as concerns the laws of Bishops, I say that in order that they may oblige they must be promulgated, as is wont to be done, in the Parochial missals regularly speaking: but if there be another custom in some particular Church, such a custom must be observed.

Having explained the efficacy of human law, and its power of binding, there remains to examine in what manner that virtue is at times relaxed; which indeed happens either by custom, which on the part of the people dissolves the law: or by abrogation, and dispensation, whereby by the authority of the Prince the obligation of the law is revoked: or by privilege, whereby through the liberality of the Legislator certain ones among the subjects are exempted from the obligation of the law: or finally by interpretation, whereby the Magistrates, and the administrators of the Commonwealth, and judges judge that the force of the law does not prevail in certain definite cases. Concerning all these several points must be determined in the following Questions.

Custom and prescription agree together in many respects, and differ in others. They agree, I say, chiefly in two points. First indeed, because in each there intervenes something of fact, and something of right, which is introduced and established by the fact; secondly, because prescription itself requires some custom of fact, and in turn custom requires some prescription of time. But they differ first by reason of the very right compared; for custom introduces a legal right, or a right of law, by which all are bound; but prescription only confers a right of dominion over some thing, or a right of using it, and enjoying it.

Secondly, they differ from one another because custom is introduced by the practice, and usage of the people; for since it has the force of law, and law is referred to the common good, custom ought to be introduced through the manners, and observance of the community, or people: but prescription, since it pertains to the utility of some single private person alone, is introduced only through the use, and act of some private person: thus if someone enjoys a house or some inheritance peaceably for a long time, the right of inheritance is acquired by prescription in that private person himself. Finally thirdly, custom and prescription differ from one another, in that custom, for the efficacy, and value of its introduction, requires the tacit, or expressed consent of the Prince, as we shall soon say: but prescription does not require his consent, against whose utility it is prescribed: for if Peter should prescribe against Paul in some estate, it is not necessary that Paul himself should consent to this prescription tacitly, or expressly, but it suffices that Peter enjoy that estate for the determinate time required for prescription while he is ignorant of it.

Note 2. That although custom is sometimes used indiscriminately for usage, manner, form, and style: nevertheless it differs from them in certain respects: for although custom, considered as it is a matter of fact, is the same thing as usage, and manner, namely a uniform frequentation of free acts: yet if it be considered as it is a matter of right morally left behind, and persisting from that uniform frequentation of human acts, it has the force of binding to acting so. Custom differs from the very usage and manner, which import only the material uniform frequentation of free acts. But custom differs from forum, and style: for the forum is not whatever is confirmed by right, usage, and custom, but only those things about which judgment must be given in a Tribunal. Style moreover is that manner which is observed in writing, or speaking by the jurists in causes, and affairs to be transacted. Custom truly is a certain right instituted by manners, which is received in place of law, where law fails.

Note 3. It can be understood in two ways that custom has the force of human law. First indeed in abrogating some human law, so that by a custom introduced through long-continued manners of the people against a prescribed law, that law ceases to bind, and is abrogated: no otherwise than a prior law is considered revoked, and abrogated by a contrary later one. Secondly, so that the custom itself be a certain species of law, and bind no less than human law binds. We ask therefore whether on both these grounds custom has the force of Law. Three things therefore are at present to be briefly determined: First, what custom is: Second, how manyfold it is: Third, what force it has, or what conditions it requires, that it may be considered to have that force.

First conclusion. — Custom is a certain right of men instituted by manners, which is received in place of law when law fails. So Gratian d. 1. c. 5. First it is called right: then because it agrees with written law in the notion of right as in a genus; for as Gratian says in the same place C. 2. Right is a general name: but law is a species of right, and every right consists of laws, and manners: then because custom ought to be just, at least by reason of its object, or matter, about which it is concerned. By which it is distinguished from abuse, and corruption. There is added, Instituted by the manners of men, by which words it is distinguished from law; for law is borne from a superior, but custom is introduced by subjects with the sole tacit, or expressed consent of the Prince. There follows, that it is received in place of law: for, as we shall say at once, custom has the force of law, and is received in its place, where law fails. Now law can fail in three ways: first when it is not: second when it is useless: third when it is doubtful, or obscure; hence it comes about that also in three ways custom is received; for first where there is no law, there is received the custom introductory of law, or having the force of law; secondly, into the defect of a useless law comes the custom abrogating that law; thirdly when a law is obscure, or doubtful, into its defect comes the custom which, as we said within, has the force of interpreting a doubtful, and obscure law.

Second conclusion. — Custom has the force of instituting a new law, and abrogating an old one. So all Theologians, and Doctors of either law.

The first part is proved, from the Fathers; for Tertullian lib. De Corona militis, cap. 4. speaks thus: Custom even in civil matters is received in place of law, when law fails. And Augustine Epist. 86. ad Casulanum as it is cited cap. In istis dist. 11. writes these words: In those matters, in which nothing certain is determined by divine scripture, the manner of the people of God, and the institutions of the Elders, are to be held as law: and just as prevaricators of divine laws, so also contemners of ecclesiastical ones are to be coerced.

The second part is proved, from cap. Finali de consuetudine, in these words: Although also long-standing custom is not such authority, nevertheless it will not avail so far as it ought to generate prejudice against positive right, unless it be reasonable, and legitimately prescribed. And Digestis de legibus lege de quibus, where we read, most rightly also has that been received, that not by the sole suffrage of the legislator, but also by the tacit consent of all through disuse laws are abrogated. Secondly, because custom has the force of law: therefore since a law which follows takes away the preceding law, so also custom. Thirdly from Isidore, and the Theologians after him, law ought to be according to the manner of the fatherland, suitable to place, and time: therefore by a contrary custom law is abrogated; because through that it comes about that it is no longer according to the manner of the fatherland. Fourthly, experience attests this truth: for many ecclesiastical laws no longer prevail, because they have been abrogated by a contrary custom.

You will say. Custom ought to yield to reason, as is had dist. 8. Therefore since law rests upon reason, custom ought to yield to it, and not be abrogated by a contrary one.

— I distinguish the antecedent: that custom ought to yield to reason, which excludes every contrary reason, I concede: that it ought to yield to reason which does not exclude the contrary reason, I deny: such, however, is the condition of positive laws, that they rest upon reason: which nevertheless have an opposing reason that they do not exclude, and since in custom there is involved a reason opposed to the reason of the law, custom is to be preferred to it.

You will urge. It is said also above in Canon law and in Civil law that it is not within the power of custom to overcome a law.

— I answer, that this is not the force of any prescribed custom whatsoever, but of one that is reasonable and legitimately prescribed.

Third conclusion. — In order that custom may have the power of instituting and abrogating law, several conditions are required.

First indeed, in order to abrogate a law, it must be reasonable: which is not to be so understood as if the act from which the custom begins must necessarily be good, since it is against the law: but because after subjects by evil acts have done something contrary to the law, with the lapse of time the execution of that human law, against which sin is committed, is scarcely possible, and has great difficulties; it burdens and distresses consciences rather than aids them: whence it happens that subjects believe they can do in good conscience what is adverse to the law. — This custom must also be legitimately prescribed: but it is certain that it is not legitimately prescribed unless under these conditions: first, a custom is not prescribed except by acts contrary to the law, or by a negation of acts repugnant to the law. I say repugnant to the law, because it is not prescribed by any negation whatsoever of an act. Second, those acts through which the prescribed custom is introduced ought to be voluntary: because just as a voluntary acceptance is required in subjects in order that a human law may have the force of law, so a voluntary non-acceptance, or rather disobedience to the law, ought to be the cause why a custom abrogates the law. Third, those acts ought to be manifest: both because when acts are obscure, there can scarcely be conjectured to be good faith in the subjects, which nevertheless is necessary for prescription: and also because each thing is dissolved by that same kind by which it was bound: therefore since a law is introduced through manifest acts, the contrary acts, through which it ceases, must also be manifest. Fourth, the time of this prescription with respect to Ecclesiastical laws seems to be forty years, because nothing is prescribed against the Church except by forty years, as appears from the title on prescriptions: but with respect to Civil laws ten years must intervene: because prescription of long time is ten years among those present, as is had in the civil law, although among the absent it is twenty years: but subjects, for whose good the law was instituted, are always present. Finally, those acts through which a custom of this kind abrogative of a law is induced ought to be more frequent or rarer according to this length of time by reason of the matter: for if the matter occurs more rarely, the law is prescribed away from by custom through a smaller number of repeated acts: if more frequently, more will be required: in a word, there should be so many acts that it can be gathered that as often as an occasion of fulfilling the law presented itself, so often was it contradicted. — Likewise: in order that custom may have the power of inducing a law, it is necessary that it have conditions: first it is required that that about which the custom is induced be a good act, and can be the matter of a just law: for custom has the force of law: therefore it must concern that thing concerning which a law could be enacted. Second, it must be universal, and not of a few. Third, that which is brought into custom must be judged by all necessary of observance, and not as if to be done out of devotion of the people and pious affection. Fourth, there is required the express, or at least interpretative, will of the superior, in order that such a custom may oblige: for herein is distinguished the custom whereby a law is abrogated from the custom whereby a law is instituted, which has no force of law unless it juridically proceeds from a superior: whereas without the consent of a superior a custom can abrogate a law, because then the preceding law ceases to be useful. Fifth, it must be legitimately prescribed: but in order that it be such in Ecclesiastical matters as in Civil ones, a prescription of ten years suffices, nor is it required that it be of forty years: for otherwise, where the abrogation of a law is in question, the custom would have to be prescribed by a prescription of forty years, because it would be against an Ecclesiastical law; but nothing is prescribed against the Church within a shorter space of time: whereas where the question concerns a custom which has the power of instituting law, nothing is prescribed against the Church: therefore then it suffices if it be prescribed by a prescription of ten years. From these things

Collect 1. Custom also has the power of interpreting a doubtful or obscure law; for the true understanding of a law cannot better be had than from the common practice of men, especially the wise, approved and made manifest through received custom. Which also appears from the chapter Cum diffusus on custom, and likewise law 87 of the Decretals on laws, where it is said that custom is the best interpreter of laws. Which indeed happens in two ways: first insofar as it is a sign of the true sense of the law, and of the intention of the legislator, which is gathered from the manner and custom of observing the law as from a probable, or morally certain argument, unless the contrary be evident from elsewhere. Hence Doctors and jurists not rarely affirm that a law is to be expounded according to the custom of the place. Second, custom has the power of interpreting a law, because it concurs in introducing or establishing the sense of the law and the manner of observing and fulfilling it, however less conformable it may sometimes be with the first intention of the legislator: the reason of which assertion indeed is, that the custom itself can acquire the force of law, or abrogate a law: therefore also in another way it can interpret. Whence although from the words or the matter of the law it might be doubtful whether the law obliges gravely, and therefore speaking absolutely it would have to be interpreted benignly, it ought nevertheless to be judged to oblige gravely, if it has been so received by custom.

Collect 2. Custom having the force of law is distinguished into a twofold kind: one indeed prescribed; the other truly not prescribed. The former is that by which over a long time it acquires the force of law through the consent of the Legislator Prince, in the manner in which right is acquired in the goods of another by the long duration of possession through prescription, with possession of good faith, by virtue of a general law enacting prescriptions: of which custom mention indeed is made in the last chapter on customs, where it is called custom legitimately prescribed. The latter custom, however, is that which induces right without prescription, or determination of a long time, through the tacit at least consent of the Prince knowing and tolerating what is done, when he could easily impede it and ought to; unless he tacitly consented lest some evil be incurred. For confirming the former custom there is required at least a time of ten years, as appears from laws 1 and 2 of the Code On prescriptions of long time. Which time indeed must be continuous, that is, uninterrupted through contrary acts of a superior resisting, or of the people interrupting it. But how much time suffices for a non-prescribed custom within a decade can scarcely be defined with certainty. For some think three months suffice for it: others require less; but I judge it should be decided by prudent counsel and consent of the wise according to the frequency and notoriety of the acts by which it is induced, and other circumstances, from which it is to be prudently judged that the Prince tolerates such a custom, and tacitly approves it.

Collect 3. Custom having the force of law cannot be induced except by a community, or at least by the greater part of the community acting publicly and voluntarily; so that the acts by which the custom is induced be done publicly, and without any violence. The reason of the first part of this assertion is, that custom, since it has the force of law, and is a kind of unwritten law, cannot be induced except by those who have the power and authority to enact laws: of which kind is a perfect community, or a superior presiding over it: wherefore although private persons can prescribe, and acquire a right in a possessed good through prescription: nevertheless they cannot induce a custom having the force of law. The second part of this assertion also stands; for since the right induced through custom falls upon the whole community, it must be from the whole community morally at least; inasmuch as that customary right has the power of obliging the whole community after the manner of a law. That, moreover, is said to be from the whole community morally which is from the greater part of it, as appears from elections and deliberations, and other acts which are accustomed to be done by a community.

— Note nevertheless that if the Prince enact a law concerning a custom of a few, which seems better to him, that custom will truly have full force, yet not by reason of the custom induced through the fewer members of the community, but by reason of the law enacted and established by the Prince.

A privilege differs from a law, from a dispensation, and from grace. From a law indeed chiefly in three ways: first, because a law regards the common law, while a privilege regards a special law; second, because a law, as long as it is in force, always binds subjects, whereas a privilege exempts from the observance of the law him to whom it has been granted; third, because a law binds and concerns the whole community, whereas a privilege concerns only private persons; for a privilege is a private law exempted from the common law. From a dispensation it likewise differs first, because a dispensation is always from some law; a privilege is not so, for someone can be endowed with private law without others being bound to the contrary; second, because a dispensation is granted for one act, for instance for removing a single impediment of marriage, and thus it is not something permanent; whereas a privilege gives some stable right: hence when a dispensation is granted to someone by way of a stable and permanent law, for instance when someone is exempted from the fast of Lent for his whole lifetime, this concession has rather the force of a privilege than of a dispensation. Finally, a privilege differs from grace as inferior from superior; because every privilege is grace, but not every grace is a privilege: for a dispensation, for example, from some irregularity, or an absolution from excommunication, is indeed a grace, but not a privilege.

Note 2. Only he who can make a law can concede a privilege; for the favor of any man whatsoever cannot be called a privilege, but only that which is conceded to another by public authority. Add that since a privilege is a certain derogation made from the public law by authority, he alone is judged able to concede a privilege who by his own authority can establish a law, and dissolve it either wholly, when he abrogates it, or in part, when he diminishes its force, or by a privilege excepts some persons from its observance. Hence it follows that a privilege ought to be conceded to him who is subject to the law; for by the privilege the privileged one is exempted from the law which he was bound to fulfill, had he not been endowed with such a privilege.

Note 3. That although a privilege redounds to the private good immediately, nevertheless it must also redound to the common good at least mediately; nor indeed can it be legitimately conceded, unless because it profits the republic that the persons or things to whom it is conceded be well off. Thus it is conceded to those who have deserved well of the republic, or of whom it is hoped that they will deserve well: for it matters both that those who deserve well be rewarded, and that others be advanced to deserving well. Thus it is conceded to those who would otherwise be oppressed on occasion of the law, or whose danger of oppression was to be feared, such as orphans and widows: for it matters to the republic that injury be done to no one. Thus a privilege is conceded to those who are ministers of God: for it matters to the republic to render some worship to God in the veneration of His ministers; nor indeed is a privilege said to have the force of law on any other account, since although its immediate end is the good of private persons, its mediate end is nevertheless the good of the community. — And this truth all the Holy Fathers without exception teach, whoever have made mention of privileges: for they signified that they were therefore to be retained and preserved, because they were not harmful to the common good, but rather useful, namely whereby honor is exhibited to merit, or rest procured, or oppression impeded. St. Gregory, book 2. of the Letters, Epistle 39, which is to Dominic, Bishop of Carthage, concerning ecclesiastical privileges: What your Fraternity writes, let it hold without further doubt, because just as we defend our own, so we preserve to each and every Church its own rights, nor do I bestow anything upon anyone through favoring grace beyond what he deserves: nor do I derogate from anyone that which is of his own right through ambition goading me on, but I desire to honor my brethren in all things, and so I subordinate each one's honor to mine own, provided only that what could rightly be withdrawn from another be not opposed to it. And book 7. Epistle 33. It stands most certainly and against the Sacerdotal purpose to wish to confound the privileges once granted to any Monastery whatsoever, and to bring to naught what has been disposed for quiet. — But when they said that some were to be abolished, or by no means granted, they spoke of those which do not redound to the public good, but merely serve the conveniences of private persons. Thus St. Bernard, book 3. On Consideration, chapter 1. I hear murmuring, and complaint from the Churches: they complain that they are cut down and dismembered; and few are the gain of no thing, which either did not feel or do not fear this wound. You ask what? Abbates are withdrawn from Bishops, Bishops from Archbishops, Archbishops from Patriarchs or Primates, goods — does this species seem evil? Truly if they can excuse themselves there will be work. And afterwards: But I would not have you pass over the fruit of emancipation itself: for there is none, except that from it Bishops become more insolent, and Monks also more dissolute. And again: What, you say, do you forbid dispensing? Not, but dissipating. Nor am I so rude as to be ignorant that they are placed as dispensers, but unto edification, not unto destruction. Then it is sought among dispensers, that a faithful one may be found. When necessity urges, dispensation is excusable; where utility invites, dispensation is laudable. Utility, I say, common, not proper; for when nothing of these is present, it is plainly not faithful dispensation, but cruel dissipation.

First Conclusion. — A PRIVILEGE IS RIGHTLY DESCRIBED AS: A LAW EXEMPTING FROM THE COMMON LAW, AND CONCEDING SOME PRIVATE, BUT SPECIAL AND FAVORABLE LAW: OR OTHERWISE: A PRIVILEGE IS A PRIVATE LAW GRANTING SOMETHING SPECIAL: IN WORD, OR IN WRITING, AND CONCEDED BY HIM WHO HAS AUTHORITY TO MAKE LAWS.

This definition is explained. First indeed it is called a Law: partly because it is conceded stably by way of law; hence it does not expire with the death of the conceder, just as a precept loses its force of binding upon the death of the one commanding; partly because by way of law it directs and orders those to whom it is conceded, and forbids that anything against the concession be attempted. — The word private is added, whereby it is distinguished from a law: for this regards generally all subjects, but that looks only to private persons; namely it is conceded to a family, or to a person and his successors, or to a community, for instance a religious order, a province, a kingdom, and to any other part of a community subject to the legislator, but not to the whole community itself: whence it is called a privilege in respect of those to whom it is not common. — There is subjoined granting something special, for it is the force and nature of a privilege that through it something special beyond the common law be conceded to the privileged one. Finally it is called in word, or in writing: for just as it is not of the essence of a law that it be drawn up in writing, so neither is writing necessary to the essence and validity of a privilege; but as a law can be constituted by word, or in writing, so also a privilege. Whence in the Clementine Dudum concerning burials, the supreme Pontiff says: All you privileges, graces, indulgences in word, or in writing, under whatever form, or expression, or conception of words conceded by us, or by our Predecessors the Roman Pontiffs, of whatever orders of the aforesaid four Mendicant orders etc. Nevertheless, for faith to be made in judgment it is necessary that a privilege be validated by writing, when it has not been acquired by custom, just as it can be acquired after the manner of other rights and honors. Whence Leo IV granted to the Friars Minor that they might use in the forum of conscience alone all things conceded by the Apostolic See, whether through Bulls, or Briefs, or the living oracles of voice, as they are found in the books of the Order. There is another privilege of Julius II granted to the Augustinians by the Bull Nihil ordo, in the Bullarium of Rodriguez, whereby of his own motion and with certain knowledge he conceded to them, and consequently to the other Mendicants communicating in their privileges, that whatever had emerged for them, whether through bulls, or through communication, whether made in the form of a Brief or having emerged through supplication, in which it pleased that the signature alone should suffice, should have altogether the same force and efficacy, both in judgment and outside judgment, as if they had been sealed with a leaden seal. — Finally follows conceded by him who has authority to make laws: for whoever obtains supreme authority over subjects, and can establish and prescribe a law for them, can also concede to some of them that which they would not have by the common law. But in order that he concede licitly, a just cause is required; not however that he concede validly: for by his own authority the legislator can exempt whomsoever he wills from the common obligation.

Second Conclusion. — THE PRIVILEGE DESCRIBED ABOVE IS DIVIDED INTO VARIOUS SPECIES.

For first it is distributed into real and personal. Real is that which is conceded directly and immediately to some thing, office, or condition distinct from a person, as pious causes, an estate, a Monastery, a Church etc., or to the clerical state, episcopal office, the office of superiors, the condition of orphans, scholars etc.; for these privileges are conceded to persons not so much on account of themselves, as on account of a quality found in a genus of persons. Personal is that which is given immediately to a person on account of himself, and with the intention that provision be made for him; as when it is conceded to someone that he pay no tithes, that he be immune from tribute, that he be able to absolve from reserved cases etc. Moreover each is distinguished in this, that the real is perpetual and endures together with the thing, office, state, dignity, or condition to which it is annexed: whereas the personal is only for a time, and is extinguished together with the person to whom it is conceded, according to the rule of the Sixth Book, a personal privilege follows the person and is extinguished with the person. — But in order that each of these privileges be distinctly recognized, attention must be paid to the tenor of the formula whereby it is conceded, its preamble likewise, to whom it is directed, and similar things; so that thence may be gathered whether the personal privilege is to be extinguished with the person, or real, and to endure so long as the very thing to which it adheres remains. Hence a privilege given to a certain community endures so long as that same community is judged to remain, although it migrate from one place to another: for the same political body remains, to which rather than to the place the superior is judged to have affixed the privilege. Similarly when a privilege is conceded to a place, for instance a temple, it is not lost through the destruction of the temple, unless this be done by legitimate authority: otherwise if it be destroyed by accident, or by enemies: for then, once the temple is restored, the privilege perseveres.

It is divided secondly into a gracious, remunerative, and conventional privilege. Gracious is that which is given gratuitously without any merits of the privileged one, or of parents, or of others communicated to him, whereby the privilege should correspond as wages, and not merely as motive or occasion of giving. Remunerative is that which is given as reward of the merits of the privileged one, or of others communicated to him. Conventional is that which is given with a pact or condition intervening, on account of which the privileged one is judged to buy, or compensate, the privilege.

It is divided thirdly into local and general: the former may be used everywhere; the latter only in the place for which it was conceded: as the eating of flesh in France on certain Saturdays, and of dairy products in Lent. But when it is local, it is known, either because this is expressed in the privilege; or because it is sufficiently gathered from the particular cause of the concession, as the eating of dairy products in Lent where there is want of oil and fish; or because the conceder has jurisdiction limited to a certain territory, outside which he cannot dispense against the laws of another territory. If however he has the faculty of dispensing in the common law of a kingdom, or of the Church, and the privilege be only against that common law, the dispensation is valid everywhere: and so for instance a dispensation for holding several benefices at once, made by a Legate, is valid even outside the territory of the Legate.

It is divided fourthly into favorable and odious: favorable is that which brings inconvenience to no one, of which sort is the privilege of hearing

Mass during an interdict; of eating butter and milk in Lent; of making a testament without the solemnity of law, etc. Odious is that which although it be silent towards the privileged one is nevertheless at the same time harmful to another, such is the privilege whereby one is rendered capable of holding several benefices.

It is divided fifthly into affirmative and negative: affirmative is that whereby the faculty of doing something is conceded; negative, that which gives the faculty of omitting something.

It is divided sixthly, according to the manner in which it is granted, into a privilege granted at the petition or instance of the privileged party, and into that which is bestowed motu proprio, and granted out of the sole liberality and good pleasure of the grantor; and this can indeed be discerned both from the preamble of the concession, in which the supplication is usually narrated, if one preceded: and especially from the very form of the concession itself, in which it is usually expressed when it is done by one's own motion through such clauses as: Motu proprio, non ad instantiam alicuius, ex mera nostra liberalitate, or their equivalents. When this is not sufficiently expressed, the privilege is judged to have been given upon petition according to the chapter Si motu proprio, de praebendis, in VI. — Among these grants of privilege there are various differences. First, that a privilege granted at the instance of a party is not so voluntary and liberal as one granted from one's own motion: and therefore this latter, as far as the propriety of words allows, is to be interpreted broadly; which a privilege granted upon petition does not have. Second, that sometimes he who petitioned for a privilege can be compelled to use the privilege he petitioned for: but if it was granted to him motu proprio, he cannot be compelled to use it when it seems less useful to him. Third, that a privilege obtained upon petition is sometimes surreptitiously impetrated, and therefore null; but the clause of one's own motion removes the subreption; although on some other ground it may nevertheless be null. — There is also another manner of granting a privilege, namely ad instar of another privilege, whereby it comes about that by that concession every favor and grace is bestowed with the same extensions and limitations which are contained in the other privilege after whose model it is granted. It must be known, however, that where the exemplar privilege is enlarged, the privilege ad instar is not therefore enlarged; nor when one is revoked is the other judged to be revoked; because the privilege ad instar is granted in imitation of another privilege considered in the state in which the exemplar privilege is, after whose model the other is granted: once that concession has been made, the privilege ad instar becomes a distinct and absolute privilege proper to him to whom it was granted.

Conclusion three. — PRIVILEGES CAN BE IN FORCE AND CEASE IN VARIOUS WAYS.

The first part is made evident; for privileges are in force first for a determined time; namely when they are granted only for a certain time, as when faculty is granted to someone to eat flesh during one Lent only, or another. Second they remain in force as long as the person lives to whom it is granted ad vitam, if it be a personal privilege, nor is it revoked by the grantor; or as long as the community to which it is given, or the thing to which it is annexed, perseveres, if it be a real or common privilege; provided it be not revoked, nor renounced to the community by that privilege. Thirdly, finally, privileges remain in force as long as none of the causes of their cessation occurs; the principal of which are the following.

First, a privilege can be judged to cease through the cessation of the cause on account of which it is granted; for the cause ceasing, the effect ceases; since a privilege is granted by a Prince on account of its use, the use of the privilege requires no less an honest cause than the concession itself; which indeed is established by the law of the Pandects II., De fide-iussoribus, in which it is said: that he who has come to a state in which he could not begin cannot remain therein; or as the gloss has it in the same place, that what impedes doing destroys even what has been done: therefore the same cause is required in the use as in the concession; and consequently if, the cause being absent, a privilege could not have been licitly granted, with the same cause likewise absent its use cannot licitly and legitimately continue. Hence from the chapter Tua, de Clericis non residentibus, it is laid down that the privilege indulted to Canons, that being absent on account of studies they may receive the fruits of their prebends, ceases when they no longer devote themselves to studies. — Nevertheless the same author would have this opinion understood thus: first, unless the privilege or dispensation is granted on account of avoiding some moral danger: hence a woman with whom a dispensation was granted in the vow of chastity on account of a moral danger of incontinence does not cease to have this privilege of dispensation when the danger itself ceases, whether on account of aged years, or on account of long and grave infirmity, or other causes. Second, the privilege ceases, the cause ceasing, unless it concern a matter which the Prince can honestly grant even without grave cause; of which kind is the privilege of anticipating the sacrifice of Mass before dawn on account of legitimate causes; for any cause whatsoever, even a light one, can make this concession honest; and consequently although a grave cause be absent, those who are endowed with such a privilege can licitly make use of it.

Second, a privilege is lost by the express and external renunciation of the privileged party; because the benefit of a privilege is not compulsory with respect to the one to whom it is granted, nor ought it to be bestowed upon him against his will; seeing that it is conferred in his favor, not to his burden; and therefore he can renounce it. Hence a privileged person can renounce a personal privilege, and some community can resign a common privilege granted to itself; but no private privileged person can renounce a privilege granted to the community, or to his estate. And thus a Clerk cannot renounce the privilege of a Canon and of the Forum: nor a Religious the privileges of his Religion; nor a Bishop the privileges common to the Church, or to the episcopal order. Moreover, for renunciation an internal act does not suffice, but it must be manifested externally, and accepted by the granter of the privilege, or by a third party who has an interest; otherwise the renunciation can be revoked by the very person himself; nor does it oblige him not to use the privilege.

Third, privileges cease through non-use or desuetude, or through contrary use; namely when they are odious, and redound to the burden and as it were the servitude of others. Thus by express law concerning fairs it is laid down that the privilege of fairs is lost through non-use over ten years. The reason is, because prescription holds equally against burdens and servitudes of this kind as against any others whatsoever. But if privileges be merely favorable, and do not redound to the prejudice of others, they are not lost through prescription; because neither can the privileged person himself prescribe against himself; nor another against him, because it is no concern of theirs. Advertise, however, that for the prescription of a privilege against laymen a space of ten years between those present, and twenty between those absent, is required. Against the Church prescription runs only by a space of forty years, and against the Roman Church by a space of one hundred years. Against Monasteries, however, persons, or other goods of Religious, by common law indeed a prescription of forty years is necessary: but by the Privilege of Eugene IV. sixty years are required. Indeed, by a certain other concession made to the Benedictine monastery of St. Paul outside the walls of Rome (with which monastery, and consequently other Orders, communicate), one hundred years are required, as may be seen in Rodriguez Tom. 3. qq. Reg. qu. 35. art. 2.

Fourth, privileges are lost through the delict of the privileged person himself; which can be twofold: one not pertaining to the use of the Privilege, and such a delict does not take away the privilege except in cases expressly stated in the law; in which way a clerk exercising merchandise loses the clerical privilege of the forum, cap. ultimo De vita, et honestate Clericorum: the other pertaining to the use of the privilege, that is, abuse of the privilege, either by exceeding the faculty granted, or by taking from it occasion for living more licentiously and sinning more freely, especially with scandal and detriment to the common good: Hence he merits to lose the privilege who abuses the power permitted to him, as is said dist. 74. cap. Ubi.

Fifth, if the privilege be merely gratuitous, and consist in mere power of doing or not doing something against the common law, it is always at the Prince's nod, validly revocable even without cause; because the Prince, who took away the common precept by the concession of the privilege, can impose it again: and the concession of such a privilege is not the acquisition of any dominion, but a certain dispensation in the common law, which always hangs upon the will of the Prince. I said licitly revocable, because for such a revocation to be done honestly and decently by the Prince, some cause is required. For it is fitting that a benefit conceded by a Prince should endure, as is had in rule 16. De regulis iuris in sexto. But if the privilege be not purely gratuitous, but onerous, as a remunerative and conventional privilege, it is of itself irrevocable, because by natural law the Prince is bound to keep pacts, even with subjects. Per accidens, however, just as he can deprive subjects of other goods when the necessity of the common good demands it, so also he can deprive them of privileges previously granted. For by high justice he can dispose of those rights equally as of other goods of inferiors, as much as the necessity of the common good requires. He ought, however, otherwise compensate this deprivation, if he can. — Here, moreover, advertise that the privileges granted by the Apostolic See to the Regular Mendicants are remunerative; namely because, as Pius V. says in his Bull: Et si mendicantium ordines in principio, pro suis sanctis studiis, honestisque laboribus, proque salute animarum at Apostolicae sedis cuius continue pacem, et dignitatem ordines ipsi fortiter tutati sunt, tam spiritualia, quam corporalia subsidia, ornamenta quoque susceperint, et accipiant. Similarly other Pontiffs bring forward, as motive for granting privileges, the most ample merits and most abundant fruits which they continually render in the Church of God. As Sixtus IV. says of the Orders of Preachers and Minors in the golden Bull which is 20. in the Bullary of Rodriguez, where he celebrates these same merits and fruits with wondrous praises) Unde although absolutely they can be revoked by Pontiffs, yet for revoking licitly and reasonably a grave and urgent cause is required, which Passaeus hands down as from the common opinion in supplem. V. privilegiorum num. 16. — Note further, that privileges are not judged to be revoked unless sufficient and express derogation is made to them; and this not only if they are not contained in the body of the law, because the Prince is presumed ignorant of them: and therefore not to revoke when he makes no mention of them, according to cap. 1. De constitutionibus, n. 6; but also if they are contained in the common law, which the Prince is presumed to know: for nevertheless derogation is made to the genus through the species, even though the species precede. Indeed, when privileges are generally revoked, those contained in the body of the law are not judged to be revoked, as Suarez rightly teaches among others lib. 8. cap. 38. num. 1. because privileges inserted in the common law participate, as Canons and common laws, in the conditions of the same. But if a privilege was granted in a General Council, derogation must also be made to it specially, that it be judged revoked, as Covarruvias, Menochius, Sanchez, and others everywhere hand down, as Herinx notes.

You ask 1. What is to be thought concerning the communication and confirmation of Privileges, especially those granted to Regulars?

I answer 1. That Religious Mendicants have most full communication of privileges among themselves; nay, that they even share in privileges granted to other orders not mendicant, as appears from most many declarations of the supreme Pontiffs; made especially in favor of our Seraphic Order; which particularly appears from the second Bull of Clement VII. in which motu proprio, and from certain knowledge, he communicates to the three Orders of saint Francis all the indults, graces, indulgences, and all other privileges whatever granted, or to be granted, to any Orders whatsoever, whether mendicant or not mendicant, just as if they had been specially granted to them. Which Bull certainly was confirmed by Paul IV. Pius IV. Pius V. Gregory XII. Sixtus IV. and other supreme Pontiffs.

I answer 2. That privileges granted to Regulars, and above all to our Seraphic Order, were confirmed by most many Pontiffs before and after the Council of Trent, thus Sixtus V., who says through the Apostolic: furthermore Gregory XII. Sixtus V. Clement VIII. and Paul V. and in general Pius V. confirmed all the Privileges of all the Mendicant Orders by the Bull, Etsi mendicantium ordines. To which in this part the other confirmative bulls of privileges of Pontiffs posterior to the Council of Trent do not derogate, in which the clause is added, In his, quae non adversantur Decretis Concilii Tridentini: for, as most authors observe, that clause is not understood of all privileges, howsoever contrary to the Council of Trent, but only of those which are formally contradicted by it, and which the Council itself expressly and significantly recalls. — Nor does it stand in the way that the Council of Trent Sess. 25. cap. 22. De Regularibus decrees, Quod omnia et singula in superioribus Decretis contenta observari sancta Synodus praecipit, notwithstanding any privileges whatever conceived with any formulas of words: for the Council speaks only of the Decrees of that Session, as is sufficiently gathered from the text, and other circumstances: for it imposes the crown upon the Session, saying: Haec omnia et singula in superioribus decretis (it does not say sessions) contenta, etc. Which moreover stands, for if the mind of the Council had been otherwise, doubtless it would have laid down the derogation at the end of the whole Council, or of all the sessions. Which certainly, since the Council did not do, it must be inferred that the derogation so made concerning privileges looks only to those privileges which formally opposed the decrees of the aforesaid session 25.