§ 1. Civil laws sometimes bind immediately only to punishment, but not to guilt. On this point there is some disagreement among theologians. Some contend that every law which commands or forbids binds consciences, because in every law there is power together with a will to bind, and in its violation there is disobedience, which is a sin. Thus they think that it is not even within the power of the legislator not to bind if he wishes to enact a law. Others maintain that it can happen that a legislator truly commands, and does not merely ordain or direct, and yet the transgressor does not sin, because the legislator can will not to bind him to guilt but only to punishment. It is a true law, and yet the transgressor is not held by guilt.
For example, there was an ancient law of the Venetians that a fine should be imposed upon one who built the curia—which was then humble and in no way equal to the dignity of the state—with greater magnificence. One of the doges demolished the old building and raised a beautiful structure worthy of so great an assembly. When accused, he willingly and readily paid the fine. He did not sin by that magnificence, for it was not the intention of the state to bind him to sin, but through fear of punishment to preserve the frugality of the fathers.
I said “immediately,” for in reality that law too touched conscience: after he built the palace, he was bound in conscience to pay the fine. Many laws of religious orders are of this kind: they do not bind to guilt but only to punishment, either definite or indefinite. For the whole obligation depends upon the intention of the person commanding. The transgressor is compelled to sustain the punishment, because otherwise there would be no reason for compelling him if he were held neither by conscience nor by punishment.
§ 2. We have described that law according to common usage. For if we cut the matter to the quick, that whole law binds conscience, and the person who performs the deed to which the punishment is annexed—whether it is called a punishment properly or analogically—does not properly offend against it. Rather, the one who transgresses the whole law does so; that is, he both performs the deed and refuses the punishment. For the law is: “Either do not build, or pay the fine.” Nor is it necessary that the law always be enacted in that disjunctive form. A law can be established absolutely with the intention that it bind only to punishment.
In our Society there is a law that those who leave the house write their names—which are inscribed on a tablet near the door of the house—and inform the doorkeeper where they are going. No punishment is added, nor does the legislator declare that guilt is absent; nevertheless, because at the beginning he declared that he did not wish to bind anyone’s conscience, one who omits these things does not sin. Thus, whether a law is purely penal or mixed, it will sometimes not bind to guilt. It is agreed that a purely penal law, which says only, “Whoever does this shall undergo this punishment,” does not bind. Concerning a mixed law, which truly commands or prohibits something and assigns a punishment to the transgressor, the matter too is clear: when by the command the legislator wishes to bind in no way other than to punishment, there is therefore neither a will to bind otherwise nor disobedience until the punishment is refused after the deed.
§ 3. A law founded upon a presumption of fact which is false does not bind conscience. For example, if Gaius secretly married a woman and afterward celebrates solemn nuptials with another, in the external court judgment is rendered in favor of the second marriage because witnesses and all the proofs of marriage are present, and because he is presumed to lie about the prior marriage and not to have deceived publicly. Yet in reality he is bound to the former spouse.
If a presumption is founded upon fear of danger, the law binds even though in the particular case the rationale of the law ceases; it must nevertheless be observed on account of the common good. There is a law that no one make religious profession before completing his fifteenth year, for it is presumed that this would be done rashly from weakness of judgment. Thus, although it is done with mature judgment and prudence, it nevertheless does not bind, because the law, which regards ordinary dangers, renders the profession altogether invalid.
§ 4. Human law sometimes binds under mortal sin. For since it belongs to divine and natural right to obey just laws, the matter and circumstances can be of such a kind that transgression is judged grave and harmful. Whether a transgression is a mortal sin cannot be gathered from the words of the law alone, from the intention of the legislator, or from the severity of the punishment, but from the gravity of the matter. For since the intention of the legislator ought to be just and reasonable, he ought gravely to bind consciences only in a grave matter in which a great interest of the state is involved. But when the cause is grave, the legislator cannot bind under venial sin, because the transgression is grave by the nature of the matter.
For example, when a sumptuary law has been established and the manner and duration of courses defined, if someone violates it publicly, the act can redound to great evil for the state. But if contempt either for the legislator or for the matter of the law is added, the sin will be greater. Contempt for God is always mortal; contempt for human law in a small matter is venial; contempt for the civil legislator on account of human defects is sometimes venial and sometimes mortal. But if he is contemned insofar as he is a superior, or by reason of the power itself, the guilt is always mortal, because this contempt is insulting to divine majesty
and its ordinance.
§ 5. Civil law can bind even with danger to life. This is seen especially in war. A soldier must not desert the ranks even if he sees that he must die. The state can command this fortitude, for if it could not, insufficient provision would have been made for the common good and defense. That defense certainly belongs to natural right, but the magistrate can assign it to particular human beings and send these or those legions, cohorts, and squadrons into evident dangers. By military law they are compelled to obey.
§ 6. The observance of a law binds with danger to life when more utility redounds to the state from its preservation than from the life of the person held by the law, or when transgression of the law is more destructive to the state than the death of a citizen. That rule is commonly approved. In it we must consider first that the danger in question be true and certain; next, that there is the greatest difficulty in judging whether the good or evil is greater.
For there are many whose life does not greatly benefit the state and indeed appears even to burden it. For what benefit to the state is a leper who is also a beggar? How easily can a public good be found greater than his life, and a loss more grave than his death? Thus the matter must be determined not only from the public good considered precisely, but also from the private good or evil of the person who is a part of the state. For it pertains to the good of the state not to be prodigal of its own blood. Nor is the sin in this matter slight, especially on the part of commanders in war, when for the sake of a small advantage they expose a soldier to great dangers. “Who could endure an ignoble village being purchased with the blood of so great a king?” the Macedonians cry. Who does not see that Drances spoke rightly?
Let the royal bride, of course, fall to Turnus,
While we, cheap lives and unburied bodies,
Lie scattered over the field.
What, then? At night enemies drive away herds stalled before a city. A leper sees them—an infirm old man, burdensome to the state. If he is silent, his silence causes public loss; if he cries out, death stands before his eyes. But there is a law which commands that the approach of an enemy be reported. I judge that even if the old man’s life burdens the state rather than benefits it, and the loss of the driven-away herd is great, nevertheless the old man is not bound to act with danger to his life. Rather, so great a good for the state, or so great an evil, is required that, all things considered, the matter is worthy of one for which a prudent person would lay down his life.
In this matter the following must especially be observed: in a well-constituted state there must be the greatest charity toward individual citizens. For just as we do everything to avoid cutting off bodily members, so too the life of every individual citizen ought to be highly commended. No one is bound to undergo death for a neighbor’s cattle, nor can the state command it. For the protection of individuals, even the wretched, pertains to it, and it is of concern to all that the afflictions of no one be exposed to injury.