Scotus Academicus, Tomus sextus: De Legibus Divinis et Humanis

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.