3. What the law does not forbid, it leaves open. Aristotle indeed (Eth., V., xi., 1) says the contrary, that what the law does not command (he instances suicide), it forbids. All that he seems to mean is, that if there be an act which at times might appear advantageous, and yet is never commanded, there is a presumption of the legislator being averse to that act. Again, there are special occasions, in view of which the legislator undertakes to regulate the whole outward conduct of a man by positive enactment, as with a soldier on parade: what is not there commanded, is forbidden. But these instances do not derogate from our general proposition, which is proved in this way. The office of law is not to loose, but to bind. It declares, not what the subject may do, but what he must or must not. It does not bring liberty, but restriction. Therefore, if any one wishes to assert a restriction, he must go to a law to prove it. If he can find none, liberty remains. The law is laid on liberty. Liberty is not the outcome of law, but prior to it. Liberty is in possession. The burden of proof rests with those who would abridge liberty and impose an obligation. It is an axiom of law itself, a natural, not an arbitrary axiom, that better is the condition of the possessor: which amounts in this matter to another statement, also axiomatic, that a law binds not till it is promulgated. But a law of which I have serious outstanding doubts whether it exists at all, or, if existent, whether it reaches my case, is for this occasion a law not duly promulgated to me. Therefore it binds me not, and my liberty remains.
4. It remains to consider what constitutes a serious outstanding doubt. The word outstanding has been already explained. It means that we have sought for certain information, and cannot procure it. Now what is a serious doubt? It is a doubt founded on a positive opinion against the existence of the law, or its applicability to the case in point, an opinion fraught with probability, solid, comparative, practical probability. The doubt must not be mere negative doubt, or ignorance that cannot tell why it doubts; not a vague suspicion, or sentimental impression that defies all intellectual analysis; not a mere subjective inability to make up one's mind, but some counter-reason that admits of positive statement, as we say, in black and white. It is true that many minds cannot define their grounds of doubt, even when these are real. Such minds are unfit to apply the doctrine of Probabilism to themselves, but must seek its application from others. The opinion against the law, when explicitly drawn out, must be found to possess a solid probability. It may be either an intrinsic argument from reason and the nature of the case, or an extrinsic argument from the word of some authority: but the reason or the authority must be grave. The opinion is thus said to be intrinsically or extrinsically probable. The probability must also be comparative. There is many an argument, in itself a very good one, that perishes when we come to consider the crushing weight of evidence on the other side. An opinion is comparatively probable, when after hearing all the reasons and all the authorities on the other side, the said opinion still remains not unlikely, which is all that we mean to say of an opinion here, when we call it probable. In ordinary English, the word probable means more likely than otherwise, which is not the signification of the Latin opinio probabilis. Lastly, the probability must be practical: it must take account of all the circumstances of the case. Practical probability is opposed to speculative, which leaves out of count certain circumstances, which are pretty sure to be present, and to make all the difference in the issue. Thus it is speculatively probable that a Catholic might without sin remain years without confession, never having any grievous sins to confess, grievous sin alone being necessary matter for that sacrament. There is no downright cogent reason why a man might not do so. And yet, if he neglected such ordinary means of grace as confession of venial sin, having it within reach, month after month, no one, considering "the sin which surrounds us," would expect that man to go without grievous scathe. In mechanics, there are many machines that work prettily enough in speculation and on paper, where the inventors do not consider the difficulties of imperfect material, careless handling, climate, and other influences, that render the invention of no practical avail.
5. The safest use of Probabilism is in the field of property transactions and of positive law. There is greatest risk of using it amiss in remaining in a false religion. All turns upon the varying amount of trouble involved in moral diligence of enquiry, according as the matter at issue is a point of mere observance or of vital interest.
6. The point on which the probability turns must be the lawfulness or unlawfulness of the action, not any other issue, as that of the physical consequences. Before rolling boulder-stones down a hill to amuse myself, it is not enough to have formed a probable opinion that there is no one coming up. That would be Probabilism misapplied. The correct enquiry is: Does any intrinsic reason or extrinsic authority make the opinion probable, that it is lawful for mere amusement to roll down rocks with any belief short of certainty that no one will be crushed thereby? The probability, thus turned on to the lawfulness of the action, breaks down altogether. This explanation, borne in mind, will save much misapprehension.
CHAPTER IX.
OF THE SANCTION OF THE NATURAL LAW.
SECTION I.—Of a Twofold Sanction, Natural and Divine.
1. The sanction of a law is the punishment for breaking it. The punishment for final, persistent breach of the natural law is failure to attain the perfect state and last end of the human soul, which is happiness. If existence be prolonged under this failure, it must be in the contrary state of misery. This failure and misery is at once a natural result and a divine infliction. It is the natural result of repeated flagrant acts of moral evil, whereby a man has made his nature hideous, corrupted and overthrown it. (c. vi., s. i., nn. 4, 5, p. 111.) For an end is gained by taking the means, and lost by neglect of the means thereto. Now, as we have seen, happiness is an intellectual act, the perfection of an intellectual or rational nature (c. ii., s. ii., p. 6); and the means to it are living rationally: for a reasonable being, to do well and fare well, must live by that reason, which is the form of his being. (c. vi., s. i., n. 4, p. 111.) Whoever therefore goes about contradicting the reason that is within him (c. v., s. iii., n. 3, p. 74) is not in the way to attain to happiness. Happiness the end of man, the creature of all others the most complex, is not to be stumbled upon by chance. You may make two stones lean upright one against the other by chance, but otherwise than by a methodical application of means to the end you could not support the spire of Salisbury Cathedral.
2. Man's is a progressive nature (c. vi., s. i., nn. 2,3, p. 109), himself being the director of his own progress. Other progressive natures may be spoilt by their requirements being denied, and contrary things done to them. Man has his requirements. It depends mainly on himself whether he acts up to them or against them. If he acts against them, he so far spoils himself; and once he is thoroughly spoilt by his own doing, the final perfection of humanity is gone from him for ever. It is the natural result.
3. I have spoken (n. 1) of repeated flagrant acts: not that I would ignore the evil set of the will that results from one gross and deliberate evil deed (see c. ix., s. ii., n. 6, p. 168): but because the case is clearer where the acts have been multiplied. However we must not omit to observe, that it is not any vice, or evil habit, that formally unfits a man for his final happiness, but an actual evil set of the will, coming of actual sin unrepented of, which set is more decided, when that uncancelled sin is the last of many such, and the outcome of a habit. But supposing an habitual sinner to have repented, and his repentance to have been ratified by God, and that he dies, not actually in sin, but before the habit of sin has been eradicated (c. v., s. ii., n. 1, p. 69),—we may say of him, that his "foot is set in the right way," that is, his will is actually right, and the obstacle to happiness is removed. The evil habit in him is not an actual adhesion of his will to evil, but a proneness to relapse into that state. It is only remotely and potentially evil. It is a seed of evil, which however will not germinate in the good and blissful surroundings to which the soul has been transplanted, but remain for ever sterile, or rather, will speedily decay.