Scotus Academicus, Tomus sextus: De Legibus Divinis et Humanis

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.