Scotus Academicus, Tomus sextus: De Legibus Divinis et Humanis

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.