2. An illustration. It is an axiom of Natural Law, that res perit domino; that is, the owner bears the loss. If an article under sale perishes before delivery, the loss falls, apart from contracts to the contrary, upon whichever of the two parties is the owner at the time. So far nature rules. But who is the owner at any given time, and at what stage of the transaction does the dominion pass? That can only be settled by custom and the law of the land. "If I order a pipe of port from a wine-merchant abroad; at what period the property passes from the merchant to me; whether upon delivery of the wine at the merchant's warehouse; upon its being put on shipboard at Oporto; upon the arrival of the ship in England at its destined port; or not till the wine be committed to my servants, or deposited in my cellar; all are questions which admit of no decision but what custom points out." (Paley, Mor. Phil., bk. iii., p. i, c. vii.)
This leads us to remark upon the much admired sentence of Tacitus, in corruptissima republica plurimae leges, that not merely the multitude of transgressions, but the very complexity of a highly developed civilization, requires to be kept in order by a vast body of positive law.
3. Incidentally we may also remark, that the law of the State does not create the right of property; otherwise, abolishing its own creation, the State could bring in Communism, (c. vii., s. i., p. 278). But finding this right of property unprotected and undetermined, the State by its criminal law protects property against robbers, and by its civil as distinguished from criminal law, it defines numerous open questions between possessors as to manner of acquirement and conditions of tenure.
4. All civil laws bind the conscience: some by way of a categorical imperative, Do this: others by way of a disjunctive, Do this, or being caught acting otherwise, submit to the penalty. The latter are called purely penal laws, an expression, by the way, which has no reference to the days of religious persecution. Civil law binds the conscience categorically whenever the civil ruler so intends. In the absence of express declaration, it must be presumed that he so intends whenever his law is an enforcement of the Natural Law, or a determination of the same; as when the observance is necessary to the preservation of the State, or when the ruler determines what lapse of time shall be necessary for the acquisition of property by prescription. Very frequently, the parties to a contract tacitly accept the dispositions of the civil law as forming part of their agreement; and in this indirect fashion the civil law becomes binding on the conscience. In this way an Englishman who accepts a bill of exchange tacitly binds himself to pay interest at five per cent., if the bill is not met at maturity, for such is the disposition of the English Law. It may be further observed that no prudent legislator would attach a severe penalty to what was not already wrong.
5. In Roman times it was part of the flattery of the imperial jurists to their master, to tell him that he was above the laws, legibus solutus. In the trial of Louis XVI., the Sovereign People, or they who called themselves such, dispensed with certain legal formalities on that same plea. Against the law at Athens, the generals who had fought at Arginusae were condemned by one collective sentence, the anger of the Sovereign People being too impatient to vote on them separately, as the law required. Hereupon we must observe in the first place, that the Supreme Ruler, whether one man or a multitude, can never be brought to trial in his own court for any legal offence. As all justice requires two terms: no power can do justice on itself. (Ethics, c. v., s. ix., n. 1, p. 102.) This truth is embodied in the English maxim, that the king can do no wrong. Again, the Sovereign is either expressly or virtually exempted from the compass of many laws, e.g. those which concern the flying of certain flags or ensigns, and other petty matters. Thirdly, we have the principle, that no being can give a law to himself. (Ethics, c. vi. s. ii., n. 3, p. 117.) Lastly, we must observe that there is no law so fundamental but what the Supreme Power, taken in its entirety, can alter it, and by consequence dispense from it. From these considerations it follows that the Sovereign—the complete and absolute Sovereign, be he one man or many—lies under no legal obligation to obey any law of his own making as such. It does not follow that he is perfectly free to ignore the laws. He is bound in conscience and before God to make his government effectual; and effectual it cannot be, if the laws are despised; and despised they will be, if the Sovereign gives scandal by ignoring them in his own practice. Therefore the Sovereign, be he King, Council, or Assembly, is bound in conscience and before God, though not legally of his own jurisdiction, so far himself to stand to the observance of the law as not to render it nugatory in the eyes and practice of others.
6. Law and liberty are like the strings and meshes of a net. In the one limit of minimum of mesh, the net passes into sack-cloth, where nothing could get through. In the other limit of maximum of mesh, the net vanishes, and everything would get through. We cannot praise in the abstract either a large mesh or a small one: the right size is according to the purpose for which the net is to be used in each particular case. So neither can law nor liberty be praised, as Burke says, "on a simple view of the subject, as it stands stripped of every relation, in all the nakedness and solitude of metaphysical abstraction." We can only praise either as it is "clothed in circumstances." Commonly we are led to praise the one by getting too much of the other. Confounded in a tangle of fussy, vexatious, perhaps malicious restrictions, men cry loudly for liberty. When people all about us are doing things by their own sweet will, we are converted to praise of regulation and discipline and the wholesome restraint of law.
Readings.—St. Thos., 1a 2æ, q. 96, art. 5, ad 3; Suarez, De Legibus, III., xxxv.; ib., V., iv.; Ruskin, Seven Lamps of Architecture, c. vii., §§ I, 2.
SECTION XII.—Of Liberty of Opinion.
1. We are here dealing with liberty only so far as it means exemption from State control. So far as the State is concerned, a man has the fullest liberty to hold in his heart the most seditious opinions, and to think the foulest thoughts, so long as they do not appear in his public language and conduct. The heart is free from all mere human law, resting in subjection to His law alone, and in responsibility to His judgment, who is the Searcher of Hearts.
2. We are dealing then not properly with opinion, but with the public expression of opinion. We are dealing with that expression as controllable by the State, not acting in deference to the invitation of any religious power, but of its own initiative and proper authority, in view of its own end, scope and aim, which is social order and public prosperity for this life. (s. x., nn. 2, 3, p. 355.)