Law






LAW
by

Rev. Dr. Howard W. Smith, Professor of
Canon Law, Our Lady of the Lake

Seminary, Cleveland, Ohio

Four addresses delivered in the nationwide Catholic Hour
(produced by the National Council of Catholic Men, in
cooperation with the National Broadcasting Company),

on Sundays from May 5 through May 26, 1940

Origin of Law 3

Meaning of Law 11

Positive Law—Church and State 18
Law and Conscience 26

National Council of Catholic Men
1312 Massachusetts Avenue, N. W.,

Washington, D. C.

Printed and distributed by Our Sunday Visitor ®
Huntington, Indiana



Imprimatur

* JOHN FRANCIS NOLL, D. D.
Bishop of Fort Wayne

DeacWHtec'



ORIGIN OF LAW
Address delivered on May 5, 1940

During the winter of the year 1901 a group of

archeologists uncovered at Susa, in Persia, three

fragments of a broken column of black stone on
which was found inscribed the oldest known code
of law. It was the famous Code of Hammurabi, a
wise ruler of Babylonia, and was written more than
two thousand years before Christ.

This Code of Hammurabi is severe—perhaps
too harsh for modern man, and many of the laws
may seem unjust to us. However, in general it
shows that the law-maker understood the inherent

rights and duties of man, and so it shall always be

revered as a body of great law.
In the Sixth Century the Roman Emperor Jus-

tinian commissioned ten learned men to write a code
of law. This, together with other collections, is the

renowned Corpus Juris Civilis. The importance of
this code is well known to all students of law—the
European student finds it still necessary to begin
his studies with the Code of Justinian, and it would
be well for the American law student to do like-
wise. Perhaps no document has had more enthus-
iastic supporters and severe critics. Some find it
the perfection of legal enactments

;
others attribute

the absolutism of the temporal power, past and
present, to it.

In more recent times, the saintly Pius X gave
to the best minds in the Church the tremendous task
of codifying the law of the Church. This is the
Code of Canon Law, which gives in brief the doc-
trines, and extensively the disciplinary law, of the



4 LAW

Catholic Church. There are those today who feel
the hope of the future lies in this Code of Canon
Law. Professor Roscoe Pound, of Harvard Uni-
versity, has said:

“Perhaps the civilized world may yet be
unified by law. ... it may be unified by an idea
of law which came to us from Rome, was pre-
served for us a^nd developed by the Roman
Chfirch . . . and is, it may be, being preserved
for us by juristic faculties and law teachers of
the Roman Church in many lands, who are
bringing the philosophy of the Church to bear
on the problems of the Twentieth Century.”

No one wishes to contend that the Code of
Hammurabi, or that of Justinian, or even the Code
of Canon Law, is perfect in all details; but what
makes all these Codes great law is that they all
recognize the real source of law, they understand

that all law finally comes from God. These Codes
are fundamentally sound in their philosophy. The
tricks of lobbyists—graft, influence, and selfish in-
terest—are not the starting point from which these
began.

The social and political chaos about us must
have some starting point, and more true than it
seems at first, this condition has arisen out of con-

tempt for law and the misuse of legislative func-

tion on the part of many rulers of peoples. Is there
not some deep significance in the expression of many
persons today concerning the laws of both Church

and State, that “After all, these are merely man-
made laws?”

It is well known that certain theories coming
from false leaders find their way by a process of
infiltration into the background of thought of the



ORIGIN OF LAW 5

average man who may never have heard either the
name of the one who first pronounced the theory,
or by what label the theory is known to the acad-
emic world. Rousseau—Marx—Hobbes—Spengler
—these names mean little to many persons, yet their
theories have supplanted the genuine Christian and

Catholic concept of law, and the result can be easily

discerned by any one who takes the time to think
the matter to a conclusion.

If we but mention briefly some of the theories
concerning the origin of law, these will be recogniz-

ed without any need of academic labels or identifica-

tion. There are those who hold that the State is
the source of all existing rights and duties

;
others

hold that laws are to be disobeyed because they des-

troy the natural rights of man; some others main-
tain that some explicit or implicit pact among men
causes law to exist, or that economic needs alone

determine law; that customs and manners alone
account for law as well as for morality.

Fill the thinking processes of man with these
theories, and the result is a lack of respect for law
on the part of the subject, and a misuse of power
on the part of those who have gained the leadership
of nations. Return to the Catholic concept of law
and you have a return to God, in whom we find the
source and the sanction for all law. Law, then, in
a very practical sense, brings God down to man in
man’s relations with himself, his neighbor, and
society.

A Catholic always starts with certain prin-
ciples—the existence of God, the Creator and De-
signer of all things; the existence in man of an in-
telligent and spiritual principle called the soul. For
us God is an intelligent being—not a blind force

—



6 LAW

and in His creation of the universe there must be
a design and plan. This is well said by the writer
of Ecelestasticus

:

“God created man of the earth, and made
him after his own image ... He created of him
a helpmate like to himself : he gave them coun-
sel, and a tongue, . .. and a heart to devise: and
he filled them with the knowledge of under-
standing.”

This intelligent plan and direction of creation
on the part of God is the final source of all law. The
artist and the workman always leave some mark of
themselves on the work of their minds and hands.
The eternal ordering of things is marked on every
work of God. All things that live reflect the life
of God; the strength and swiftness of created
things, the power of God. All harmony found in
the works of nature, the subject and the source of
scientific discovery, show the beauty of God; while
the moon and stars tell us of His glory.

No one believes that the plays of Shakespeare
are the chance grouping together of words, or that

the symphonies of Beethoven came into being by
an accidental putting together of the notes of the
musical scale. Behind this dramatic manipulation

of words producing the penetrating dramas of
Shakespeare, and behind Beethoven's lofty group-

ing of notes we know there was a mind that plan-
ned, that designed, and finally left the very person-
ality of the artist in these stirring poetic measures

and in the mighty chords of that masterful music.

It would be much easier to imagine these artistic
works without a designer than it would be to think

that the world and man could exist without some
plan, some design, and some purpose. This plan,



ORIGIN OF LAW 7

this design—this end for which things have been
created by God—is what is known as the Eternal
Law. The reflection of God in His creation—man
—is called the Natural Law. Man, by the light of
his reason, comes to know of this plan and this eter-
nal ordering of things as reflected in his own being.
It is not a reflection, as of an image in a pool—it is
the impress and the stamp of the mind of God in
the very soul and being of His creature.

This truth is so much a part of man’s nature
that men of all times have known it. Aristotle and
Cicero speak of it; it is recognized by Thomas
Aquinas just as it is by the Supreme Court of the
United States.

We speak sometimes of natural rights, a)nd
these rights we maintain cannot be ignored or den-
ied. These rights are derived from the Natural
Law. We have a right to life, and to realize this
right we have a right to freedom of action. We
have, further, a right to own property so as to de-
fend this right to life. Man has a right to marry
and to beget and to educate children, and these
rights are derived primarily not from human legis-
lation, but from the design and the plan of God
found in man and the Natural Law.

As soon as we recognize the right to life and
property, to marry and beget children, we immedi-
ately recognize that murder and thievery, and adult-
ery, and defamation of character, and all forms of
injustice to others, must be evil. These acts do not
become evil simply when they are prohibited by the
laws of Church or State; they are wrong because
they offend the very nature of man, destroying his
rights and nullifying the plan of God.

The Natural Law is capable of being seen in



8 LAW

other ways. Upon the man who breaks the laws of
temperance by a drunken debauch, the law will take
its toll by nervous depression and other physical
ills. Even in the economic field the law will come
into action after our wild speculations and orgies
of spending and throw society into the doldrums of
economic defeat and depression.

But because of the very limited power of man’s
intellect, and because of his tendency to error, and
because of passion and selfishness, the Natural Law
is not too clear to all men and it becomes necessary
to have it clarified and affirmed in such a manner
that no man can overlook it. This is what God did
amid the thunders of Mount Sinai when He gave to
Moses the tablets of stone containing the Ten Com-
mandments

;
for the pith of the Ten Commandments

is simply the Natural Law clarified for us by brief
and precise expression.

Natural Law being another name for the ex-
pressions and adjustments used by the Creator, the

positive enactments of State and Church must be

founded on it. This expansion of the natural

Law through positive enactments is required
because the Natural Law is not sufficiently
detailed for the proper control of the complexities

of human life. When those in authority make laws
in conformity with and not in opposition to the Nat-

ural Law, then their enactments cannot be dismiss-

ed simply as man-made laws, for laws so made are
from God. In no sense, then, can the laws which

properly govern the preservation of life and prop-

erty, and those that protect the purity of family

life, be considered the imposition of another’s will

upon the multitude; nor are we allowed, by clever-

ness and corruption, to disobey or circumvent them.



ORIGIN OF LAW 9

Just laws must be observed then because they

come from God. This is true not only of the im-

mediate obligations recognized as a, perception of

the Natural Law, but of the positive enactments of

properly constituted human authority as well. The
binding force of law—the sanction of law—is God
Himself.

Society has been likened to a city built upon a

mountain within whose bosom are confined a thous-
and volcanic fires. These fires are the millions of

individuals with opposing interests and varying in-

clinations. The ambitions and passions of men
must be restrained and their indolence excited to
action. This is. the purpose of the laws of Church
and State, that the end of civil and religious life be
directed to procure the peace and happiness of all.
Without just laws, and the proper notion of the
binding force of law, no one can live in security;

and without God as the source of authority, only
chaos and crime are the inheritance of man.

Only in this concept of the origin of law will
society be saved. The subtle and false doctrines of
what law is and whence it comes, account for the
despotism, fear, and force, which are crushing the
world today.

Because of these false and evil theories of the
origin of law, the effectiveness of law is lost, and
hence there are devised varied methods of appeal to
promote the observance of law. Self-interest is
proposed as a reason, but this will not make men
observe law. The ambitious and licentious man will
only scorn that which stops the free progress of his
individual aims. The poor, and those who in many
cases have been deprived of the essentials of living,
are not in the name of self-interest likely to defend



10 LAW

either the property or the lives of those who live
in plenty. Will you, then, find the binding force of

law in the fear produced by violence, prisons, the
gallows, and exile? Force will not only defeat the
peace and well-ordered lives of the people, but in
the end will destroy itself. When the temper of
the people has been sufficiently tried they will seize

the weapons of force to destroy the leaders who
so trusted in these means to compel obedience in
their subjects.

Every appeal, except the appeal to God in law
and authority, will bear evil fruit. God and relig-
ion are the beginning and end of all things, and in

God alone we find the answer to the problem of
law as well as to every other problem that confronts

the human mind.
Despots and dictators; the cruelty of life; the

disturbance of peace by bloody wars—all these are
the fruits of the exclusion of God from the councils
of men. Only a return to God as the foundation of
all right, and an acknowledgment that law is from
God, will save the nations of the earth.



MEANING OF LAW
Address delivered on May 12, 1940

Louis XIV, King of France is reported to have
said : “The State, I am the State.” Whether he used
these words or not, his despotism in affairs of state

was in full accord with the expression.

He was not the first ruler to impose his arbi-
trary will upon his subjects as if it were the law;
nor has he been the last, for the whole doctrine of

modern totalitarianism comes to this, that the will
of the ruler is the law of the people.

Absolutism is by no means a new theory in
law. It was the doctrine of Nero and Caligula, des-
potic emperors of ancient Rome. Henry IV of me-
dieval Germany in his bitter quarrel with the
Papacy attempted to stretch the prerogative of the
crown to the point of making the Church and her
bishops his pliant tools. James I of England, who
was something of a philosopher of law, wrote a
treatise defending the “divine right of kings.”

Chancellor Von Bismarck by his tyrannical May
laws attempted to destroy the Catholic Church in
modern Germany. All these were totalitarian and
the Catholic Church was forced to resist their des-
potism as she is now resisting that of Hitler and
Stalin.

Constantly in the past critics have attempted

to use these incidents to accuse the Church of oppo-
sition to the State or to show that Catholics could
not be, in reality, patriotic. But now since the des-
potism of rulers is directed not only against Catholi-

cism but every form of religious worship, there is



12 LAW

beginning to exist a better understanding of the

historical position of the Catholic Church.

The Catholic Church has been conscious from
the beginning of her long and eventful history of
the divine mandate in spiritual matters. She heard
the words of Christ: “And I say to thee: That thou
art Peter; and upon this rock I will build my
church, and the gates of hell shall not prevail
against it” (Matt. 16:18).

She was likewise commissioned by the Lord:
“Going therefore, teach ye all nations: baptizing

them in the name of the Father, and of the Son, and
of the Holy Ghost. Teaching them to observe all
things whatsoever I have commanded you” (Matt.
28:19-20).

Fully aware of the divine origin of this spirit-
ual authority, the Church has never overlooked the
fact that there is still another society, the State,

with authority from God to rule over temporal mat-
ters. She remembers what her Founder said when
asked if it was lawful to pay tribute to Caesar.
Looking at the image of the emperor on the coin,
Christ pronounced that rule making clear the duty
of the Christian to the lawful authority of the

State : “Render therefore to Caesar the things that
are Caesar’s

;
and to God, the things that are God’s”

(Matt. 22:21).

The divine origin of authority in civil society,
however, requires some thoughtful consideration.
The law of nature requires man to live in the com-
pany of his fellowmen. A normal man cannot even
supply the needs of his body through his own un-
aided efforts. His instinct of sociability cries out

for the presence of others; when alone, he hungers
to be with those who understand and love him. No



MEANING OF LAW 13

other creature of this earth possesses the power of
communicating thought by speech, thereby proving

that man is intended to live in the society of others.
That all men are created equal is a Catholic

concept, in spite of the fact that some are more
abundantly endowed with talent, with strength, and
with beauty. For beneath these externals no man is
more than body and soul, and what really matters
after all is this, that all men are essentially equal.
Absolutism in government holds that men are born
unequal and that those with the ability to seize and
use power over others, have this power by divine
right. Divine right here does not mean authority
from God, but some pretended divinity they find in
worldly power and domination.

The Catholic teaching is that no man by his
nature possesses authority to rule over others. He
may not rule except with the power which comes
from God. The Sacred Scriptures are evidence of
this teaching:

“By me kings reign, and lawgivers decree just
things,

By me princes rule, and the mighty decree jus-
tice” (Proverbs 8:15-16).

The writer of the Book of Proverbs is speaking
of Divine Wisdom. St. Paul lays down the basis for
civil authority and calls disobedience to lawful
enactments of the State a sin : “ . . . for there is no
power but from God . . . Therefore he that resisteth
the power, resisteth the ordinance of God. And they
that resist, purchase to themselves damnation” (Ro-
mans 13:2).

The cynical belief that God is on the side of the
largest army with the best weapons of warfare



14 LAW

never found a place in Catholic thinking. Authority

does not automatically descend upon a ruthless con-
queror who, by violating every right of decency and
justice, enslaves a people against its will.

Catholic philosophy teaches that the ordinary

condition on which heaven conveys lawful author-
ity to a ruler is through the consent of the governed.

The people must decide on the form of government
and select the ruler before God invests that ruler
with sovereignty.

The people at times even have the right to re-
volt against tyrannical rule : “A revolution, the sub-
version of authority, the Church holds, and rightly,
to be a fearful occurrence. Society quakes to its

deepest foundations from the shock; with difficulty
will it afterwards recover its equipoise; and yet
when despotism lowers its heavy hand over a, people,
and representation, counsel, and entreaty fail to
stay it, the nation, rather than let liberty die for

evermore, may rise up with all its might, and in a
supreme effort for life, hurl against despotism the
thunders of war. This right belongs not to an indi-
vidual nor to a, few ; the people only may say when
the time for insurrection has come” (Ireland—The
Catholic Church and Modern Society, pp. 48-49).

Seldom, then, will revolution be allowed; but

there can be times when it would seem to be the only
means to justice. Our own government was changed
in 1776, when after many futile appeals, the colo-
nists were answered only with further tyrannies
from George III. As Americans and as Catholics we
are proud of the men whose courage transferred
this land from servitude to liberty. In the Catholic
principles already mentioned our fathers were ethi-
cally justified in their extreme action.



MEANING OF LAW 15

Law, then, means an ordinance of God and con-

sequently the authority that makes just laws must

come from God. Laws to be laws in the true sense
must be made by properly constituted authority ; the
laws themselves must be circumscribed by justice

and goodness, they must correspond to all that God
requires or else, in spite of the authority from which

they proceed, they fail as ordinances of God.

The great philosopher and teacher of the Cath-
olic Church, St. Thomas Aquinas, has put what we
have said and more in a short and famous definition
of law: “Law is a mandate of reason having for
its aim the public good and promulgated by him
who has the care of society.”

St. Thomas does not mention the will

,

but the

reason, of the legislator, to exclude the notion that

any despotic desire of authority can become a law.
The legislator is obliged to weigh his reasons and
ponder well the situation before he makes a law. He
must consider the abilities of his subjects to ob-
serve the law and he must take into consideration
their inalienable rights over which he has no con-
trol—he must seek to do good to all the citizens.
Laws made in the heat of passion, for the benefit
simply of some favored group of citizens, are not
laws but the perversion of law.

The Jewish question that has assumed so much
importance today and which seems to be vexing
the sentiments if not the minds of certain persons
could be solved in great part by the application of
the Catholic definition of law. Mass as many emo-
tional reactions as you can to justify the disabling
enactments of Germany and Italy towards the Jew,
nevertheless when a Jew is deprived of his posses-
sions, barred from business and the professions,



16 LAW

simply because he is a Jew, we have a violation of
Natural Law, and such enactments cannot be said
to be mandates of reason.

Laws then mean the voice of God and authority
bears about it the light that comes from God; for
the authority that makes laws and thereby governs,
though human, by a consecration has God dwelling
in it. It remains human while partaking of the
strength and beauty of divinity.

It has been said that one of the greatest

troubles in government today is the apathy of the
people. Why should there not be apathy towards
government when men are no longer taught the
divinity in law and authority? Teach men that law
and authority are the union of the human and divine
and there might be hope of an enthusiastic obser-
vance of law and of respect for the leader even
when, for partisan reasons or through defect of

character, he hardly deserves in his person the re-

spect which his office should otherwise command.

There is still this healthy social effect to be de-

rived from the Catholic meaning of law—the dis-
tinction between the man and his office. In olden
days the saints of God found reasons to rebuke
those in authority but it was a rebuke of the person
and not of the office. There was not present in
Catholic times the modern tendency to consider
every criticism of a person in authority as a criti-

cism of authority itself. In the Middle Ages there
was criticism of persons in authority in words, in
sculpture, and in painting. This has been misinter-
preted by many writers who seek to find forerun-
ners of religious revolt in Dante and even in the
builders of the great cathedrals.



MEANING OF LAW 17

Fra Angelico, the most spiritual and reverent

painter of all time, depicts bishops and priests both

in heaven and hell in his famous “Last Judgment”.

No one could possibly accuse Fra Angelico of rebel-
lion against authority!

The answer to all this is that the writers, the
sculptors, the painters, the saints and people of the

Middle Ages understood the divine origin of law
and authority and it was possible for them to see
defects in a person without feeling disrespect for

his office.

When the Catholic sense of law and life is lost,
historical feeling, humor, and freedom seem to
perish at the same time. This tottering, humorless,
seriously cruel world of today needs the refreshing

spirit of Catholicism to make it live once more, pul-
sating with joy and laughter.

At this moment the world may not be ready to
return to Catholic concepts of law and authority
but we can pray that civilized men may again be
happily united by a Catholic philosophy of law.



POSITIVE LAW—CHURCH AND STATE
Address delivered on May 19, 1940

The American Declaration of Independence
states: “We hold these truths to be self-evident that
all men are created equal; that they are endowed
by their Creator with certain unalienable rights;
that among these are life, liberty and the pursuit of
happiness.”

No man of sane mind should doubt these elo-
quent words; for as is pointed out, the natural
rights mentioned are perceived by a simple intui-
tion of mind. These rights flow from the creative
plan of God reflected in the soul and being of His
creature, man

;
in other words they come from what

is called the Natural Law.
The fundamental principle of the Natural Law

is “to do good and to avoid evil”—this principle can
be difficult of application especially in the manifold

social relationships of human life. It seems that this
principle of the Natural Law can be applied in an
unjust and wrongful fashion as when some savage
tribes out of a perverted sense of parental love, be-

lieving, perhaps, that they are doing good, put their

aged parents to death.

From this can be seen the need of positive law,
a law beyond that written in the heart of man, a law

that proceeds from properly constituted authority
in Church and State. The task of making positive
laws is a difficult one and the history of positive law

is full of vicissitudes. These difficulties arise out of

ignorance, fear, and that undying love of power

among men. The narrow philosophies into which so
much bad political theory has been crystallized fre-



POSITIVE LAW—CHURCH AND STATE 19

quently sway the minds of legislators. At times God
shines out as their guiding light and as often the

neglect of God and the substitution of some theory
such as man existing for the State rather than the
State existing for man, appears to be the principle

on which positive law is founded.

Laws need some vitalizing force and the law-
maker needs a light to guide him. In very truth it
can be said that this force and this light is God

—

but, for a clearer and more practical guide it may
be better to bring forth something that God gave
the world in order to guide it aright in the danger-

ous and difficult task of making laws for men. The
principle, the light, the vitalizing force of positive

law, must be “an eternal principle of justice”.
This eternal principle of justice was given by

Our Lord Jesus Christ in that command to His
Apostles: “Go ye into the whole world, and preach
the gospel to every creature” (Mark 16:15). In view
of the spirit of the times in which this was said, in
view of the provincialism of both the Jewish and
Roman mind, this statement of Jesus Christ was
unusual and startling.

Philosophers of law are seriously speaking to-
day about the need of universality in law. They de-
precate the merely local character of law that does
not see beyond the confines of its own State and
which tends to reduce law to the character of local
ordinances. They hope to see men again united by a
universal theory in law, and they welcome every
attempt at the unification of laws as a step forward

in this great accomplishment.

This lack of universality in law, therefore,

since it is rooted in tragic nationalism, plays its

part in plunging the world into the conflagration of



20 LAW

war in every generation. Men and nations are con-
stantly fighting today for some nationalistic notion,
and although patriotism is admirable and a man
without love of country contemptible, patriotism

should not be identified with hatred of other men.
Pride of race within certain limits is a protective

and beneficial emotion, but the desire to elevate one
race above another, to speak of superior and infer-
ior races, is not only nonsense but a thoroughly

pagan concept besides.

This idea of national and racial superiority
flourished in ancient times, it is thriving again to-

day—it is buttressed now as then with laws that
lack the sense of the universal and the understand-
ing that all men were created by God and redeemed
by Jesus Christ.

But in the height of the Catholic Middle Ages,
as described by Dean Pound of Harvard University,
a remarkable and desirable social condition was
produced by the idea of universality in law

:

“ ... we read,” he says, “in Froissart’s
Chronicles how knights came from many lands
to take part in tournaments, how men passed
freely from land to land, thought of as Chris-
tians rather than as subjects of some particular
authority. The knight, the scholar, the mer-
chant were, one might put it, in secular poli-
tical speech of today, citizens of Christen-

dom”.

The internationalism of the Middle Ages was
effected by the idea of universality in law, as the

deep-rooted nationalism of today is caused by the

absence of that universality. The basis for medieval

universality was the teaching of Christ—Christ



POSITIVE LAW—CHURCH AND STATE 21

who never claimed or boasted of nationality, but
who said, instead: “I am the Son of man.” Indeed
Our Lord was so above the pettiness of race and
nationality that it has been aptly said of Him : “He
was born outside the walls of Bethlehem as He died
outside those of Jerusalem, so that no city could call

Him its own.”
The process by which this universality in law

and understanding came to light in the Middle
Ages is sufficiently complex

;
but if we analyze

briefly the means by which it was produced and the
manner in which it decayed, we may be able to see
how we can cause a return to it with all of its at-
tendant blessings of peace and understanding.

As has been said, it began with Christ; and St.
Paul, who knew the mind of Our Lord so well, gave
utterance to it in these sublime sentences: “There

is neither Jew nor Greek; there is neither bond nor
free; there is neither male nor female. For you are
all one in Christ Jesus” (Gal. 3:28).

These notions of universality were imbedded
deeply in the spirit and thought of the Catholic
Church. The Catholic Church has never considered
herself a loose gathering together of individuals but

an organism; nor has she considered herself as
something invisible even though her end is directed
towards the spiritual and eternal. The Church is
proudly aware that she is a visible society and
within the spiritual realm independent and never
subservient to the State.

The Kingdom of Christ on earth, then—the
Church—is an organic body which for the proper
maintenance of discipline requires laws and legal
procedures for applying these laws. The Roman
civil law was admirably adapted, because of its pre-



22 LAW

cision, for many things in the government of the
Church. These were adopted, other points were
modified and changed to bring them into conformity
with the teachings of Christ. There was no slavish
following of the Roman law, it was an intelligent
“canonization” of what was good, the rejection or
reform of what was evil.

In turn the Roman law was deeply influenced
by the teachings of the Church. This influence is
apparent in the Code of Justinian but there is
reason to believe that Christian teachings were felt
even in the law before Justinian. The harsher
aspect of the Roman law was softened, and partic-
ularly the idea of universality was brought into it,
so that finally it became accepted not only as the
law of the Roman citizen, but a sort of universal
law for all men.

As a general statement, although volumes could
be written on the question, the following is true:

With the missionaries of the Catholic Church went
the gospel of Jesus Christ; and with the extension

of the Roman civil influence the two great bodies of
law, the Roman in the civil sphere, the Canon Law
in the religious field, slowly conquered pagan indi-

vidualism and nationalism—and although nationali-
ties did not disappear, nationalism was corrected
and restrained by Christian teaching.

In all the positive law before Christ there was

absent that fundamental eternal principle of justice

—the equality of men before God, before other men,
and before the law. All ancient law was steeped in

the spirit of nationalism—the pagan, because it dei-
fied the State and made the emperor a god; the

Jewish, because of its divine mission to keep alive



POSITIVE LAW—CHURCH AND STATE 23

the monotheistic notion of God until the coming of
Christ.

Not only the pagans but the Jews were in
almost constant conflict with the surrounding peo-

ples
; to the foreigner there was extended no equali-

tarian regard. Even as late as Justinian all outside
the empire were considered barbarians. Only the
citizen in earlier Roman law possessed the full dig-
nity and rights of a “person”. Slaves were not even
considered “persons”; they were listed and juridi-
cally considered “things”. The “people” did not ex-
ist

;
Christianity created what we now know as “the

people”.

If one contrasts Dean Pound’s description of
the Middle Ages already quoted when men passed
from country to country, “thought of as Christians
rather than as subjects of some particular authority
. . . citizens of Christendom”, with Count De Mais-
tre’s description of conditions today

—
“In the course

of my life I have met Germans, Frenchmen, Ital-
ians, Persians, but I have never met—man”, we
can see that we are returning not to Christ but to
pagan notions of nationalism and racial distinction.

The Middle Ages were, indeed, not perfect.
There was that limitation which affects all things
human beings are called upon to administer; but it
is significant that in a few centuries the Catholic
Church had civilized Europe and had brought with
her such ideals as that of universality in law creat-
ing international understanding, and had been able
to institute a system of relationships between
master and servant producing domestic peace as
well.

The progress of these ideas was halted when
many countries of Europe withdrew themselves



24 LAW

from the teachings and influence of the Catholic
Church. The decline from that time on has been
rapid. Christianity in any form has ceased to have
any control over great numbers of men. Philoso-
phies of every sort have been substituted—the
State again is deified and hatred now takes the place
of the worship of God. The world has in many es-
sential things reverted to a condition that existed

before the coming of Christ.
In man’s darkest moments, in deepest despair,

his heart will still yearn for better days—and al-
though the present moment is particularly dark, we
can still look at an ancient past that was made
better, with the hope that the future will be brighter

than this dismal present.

We can receive some encouragement from that
phenomenon in world affairs recognized by men in
the adage that “history repeats itself.” Conditions

prevailing at one time in history are inclined to

recur again, not exactly—because of varying in-
fluences and the passage of time itself—but the re-
turn is at least a proximate one. For instance, the

Renaissance of the fifteenth century was in many
ways similar to the conditions which once flourished
in ancient Greece and Rome. But in spite of the pas-
sionate desire of the men of the fifteenth century
to cause a complete return to a distant age, it was
impossible due to the many forces existing in the
fifteenth century that did not exist in the days of

Roman and Grecian glory.
Without doubt universality in law will bring

about a new era of peace and understanding among
men, it will break down the barrier of nationalism
which is throwing the world into hate and periodic

wars. Universality in law was derived from the



POSITIVE LAW—CHURCH AND STATE 25

teachings of Christ, and there is hope of peace again
through a return to the Church that communicated
this Christian thought to men.

This is a real program of international peace.
It does not seem that peace can be obtained by a
description of the horrors of war, nor by stressing
its economic foolishness. There is some chance of
peace when men again recognize their universal
brotherhood through the teachings of Christ.

But the historical law of “occurrence and re-
currence” or that “history repeats itself,” is not

automatic—it is conditioned by and effected
through the thinking of men. If we keep our pagan
concepts of law and our pagan morality we will be
unable to cause a return to peace and happiness
among men whereby the tragedy of war will be
averted.

Restore the bond of fellowship—repair the
rent in the garment of Christ—let all men again re-
ceive His Body and Blood at a common table before
a common altar: “For we being many, are one
bread, one body: all partakers of one bread”. And
then again we shall see verified more fully than
ever before: “There is neither Jew nor Greek;
there is neither bond nor free : there is neither male

nor female. For you are all one in Christ Jesus.”



LAW AND CONSCIENCE
Address delivered on May 26, 1940

Isaias from the watch tower of prophecy-
looked down through the ages of time and in vision
beheld not only the Child in the manger at Beth-
lehem, The Man of Sorrows on the cross of Cal-
vary, but also the glory of the Church of Christ
and its mission to the gentiles. And of the Church
he said: . . the mountain of the House of the
Lord shall be prepared on the top of the mountains,
and it shall be exalted above the hills, and all
nations shall flow unto it” (Is. 2:2).

This visible kingdom of Christ on earth, the
Church, directing the souls of men unto the glory
of God and eternal life, is ruled by an invisible
king, Christ Himself. Christ like most rulers ad-

ministers His empire through servants—[through
those who by consecration and appointment have
been so placed to lead men to God. Briefly the
Church is a society with power from God to make
laws in furtherance of His Kingdom on earth.

We are so accustomed to have the State make
laws and to enforce them, that we find little diffi-
culty in accepting its right to do so. The laws of
civil authority ordinarily bind in conscience. One
can except of course the cases in which the civil
power in matters not evil in themselves does not
wish to bind the conscience and feels that the pen-

alty imposed for the infraction of the law is suffi-

cient to produce good order. In such cases where
violation of the law of the State is by the State

itself exempted from moral guilt, the law would not
bind in conscience.



LAW AND CONSCIENCE 27

It may be difficult for some persons to under-
stand that the laws of the Church also bind in con-
science, but a little reflection will convince them
that this must also be true. The Church has been
commissioned to teach all nations those things

commanded by the Lord. Unless there is authority
to bind conscience the end for which the Church

was instituted would fail for lack of competency.
The Church then must teach not only those

eternal truths about God and His Divine Son, Jesus
Christ, but the Moral Law as well—that is the law
of right and wrong action. The Moral Law contains
the Natural Law and its deductions and conclu-
sions—the condemnation of contraception is based
primarily on the teachings of the Natural Law.
The Church must make clear the Positive Divine
Law—the law which comes directly through the
revelation of God—for this reason divorce is pro-
hibited because of the command of Christ: “What
therefore God hath joined together, let no man put
asunder” {Matt. 10:9). Whenever the Church
appears to some persons to be severe in her teach-
ing, it will be found on investigating that she is in-

sisting on the law that comes by divine command
either by the law of nature or by the positive de-
crees of God Himself. But this does not complete
the Church’s function as a visible society—for in
the work of leading men to God there is still need
of legislation for her own internal order and here
we find the human legislation which is known as the
commandments of the Church. This legislation is
extensive. The more important of these laws are
often stated for the layman in five or six commands,
dealing with attendance at Mass, the reception of

the Sacraments, fast and abstinence, and material



28 LAW

support of the Church. In reality, however, the

commandments of the Church are more numerous
—the Code of Canon Law contains two thousand,
four hundred and fourteen laws or canons, and the
greater number by far are commandments of the
Church.

If we could keep at all times our eagerness for
God at, high degree; if our love for Christ were such
that we should never cease to think of Him and His
mercies—then love would be its own law and there
would be no need of Commandments to spur us
onward and upward to God. But, unfortunately,
the tempo of human life is not so highly pitched
except in those rare and heroic characters, the
saints

;
for the rest of us, selfishness, sloth, and pas-

sion too easily draw us away from our duty to God,
and the laws of the Church are needed to support us
in our weakened and failing condition. If there
were no rule concerning attendance at Mass on
Sundays, it would not be long before any miserable
excuse would suffice to keep us from offering a
necessary service to God; if there were no laws
regulating fast and abstinence, the need of penance

would easily be forgotten notwithstanding the in-

junction of the Lord: “Except you do penance, you

shall all likewise perish” (Luke 13:5).
Enthusiasm and love are founded on discipline

and not on the lack of it. A great art must also be a
great love. When in the tense moments of a fam-
ous opera, a voice is heard—sweet, clear and vi-
brant even above the melodic thunders of a great

orchestra—only the enthusiasm of a deep love of art
could communicate such depth of feeling to us. But

that voice we know had to be trained, disciplined
through many years before it came to the present



LAW AND CONSCIENCE 29

perfection. And so it is with our service to God

—

we begin by observing commands; from these we
are led to love, and some with God’s grace will out-
grow the need of discipline and finally even in this
life, live for God alone.

The Canon Law has shown more understand-
ing of human nature than has any other body of
law. With the passage of time the Church has con-
stantly modified the law to meet varying conditions

;

in individual cases there is a great generosity in

relaxing the law by dispensations; interpretations

of the law are always broad and equitable.
The Church teaches the doctrine of “epiky”

which holds that if the circumstances are such that
the lawgiver could not have been expected to en-

vision them, and if the general law should be ap-
plied in this individual case injustice would arise,

then the law is considered not to have been made
for this particular case. Constantly in ecclesiasti-

cal decisions we find the application of equity

—

“summum ius non raro est summa inuria”—the
strict application of the law is not rarely the great-
est of injuries. If all lawmakers would study the
philosophy of the Canon Law, and make laws with
its spirit of justice and understanding the world

would enter into a new era of legal enactments.
In spite, however, of the broadness of the law

and its interpretations, there are those who say
that Catholic morality is merely an ethical obliga-

tion imposed by law from without—a sort of brutal
overpowering of the individual without any inter-
ior acceptance. This notion is entirely and com-
pletely false. There is no denial of external author-
ity but there is always required an internal accept-
ance on the part of the individual of that external



30 LAW

command. We speak of an external norm of moral-
ity—this is the law; but we also speak of an inter-
nal norm—this is conscience.

This internal norm of morality, or the con-
science, has been subjected to some rather peculiar
and fanciful interpretations. Not only has it been
considered a distinct faculty independent of man’s
intellect but there has been thrown about it greater
mystery and sacredness than has ever been attrib-
uted to that power of mind with which we make a
deduction in mathematics or the thought required

to make a sound business investment. Even that
metaphor—proper, if understood to be a meta-
phor
—

“the conscience is the voice of God”, has been

taken literally to add more confusion to a subject
already amazingly complicated. Conscience is noth-

ing but the intellect in judgment on the question
of right and therefore good, of wrong and therefore
evil, concerning an action to be performed.

Errors of judgment are frequent; our thought
is colored by emotional attitudes; hate and love,
conscious and unconscious likes and dislikes, fre-
quently sway the reason and lead it into error. This
psychological fact will come to bear upon the ques-
tion of right and wrong action, and it is not strange
that we find the conscience at times in error—in
disagreement with the objective law.

Conscience is the personal application and in-

ward response to the law and this is true not only
when the conscience is in agreement with the law,
but also when it is in error, and therefore in dis-
agreement. When the conscience is honest even
though erroneous no one may violate it, for then
that erroneous judgment has become the inward

law for the individual. We are not our own



LAW AND CONSCIENCE 31

supreme law—only God is that; but through con-
science and this personal and interior application

of the law, it can be said that we become a law unto
ourselves. In this sense is understood the supre-

macy of conscience which has always been the
forceful teaching of Catholic moralists.

To call on God to witness the truth of a state-
ment—that is, to take an oath when circumstances
require it—we rightly hold not to be a sin, but an act
of religion. However, if a man honestly believes
that taking an oath at any time is wrong, he would

sin if he violated his conscience by so calling on

God. On the other hand if a person does that which
is really against the law but does so in good faith,

without suspicion that the action is evil—if there
is no violation of the interior law even though the

exterior law is broken—there is no sin.
The internal law, the subjective norm of con-

science, should of course be orientated to the object-

ive law, and through education and training be
brought into conformity with it; nevertheless the

decisions of conscience for an individual even when
erroneous are binding. It becomes therefore one of
the great works of the Church to bring the con-
science into complete harmony with the external
law.

The Church recognizes in herself an authori-
tative teacher of the truth of God, and while there
is no power to compel or force conscience, the con-
science can never have such complete independence

or autonomy that it can establish its own law with-
out reference to God or the teaching of the Church.

When this is understood the preaching and
teaching power of the Church is better understood

;

but the Church goes further in the demand on con-



32 LAW

science—even by ecclesiastical penalties the willful
offender is urged to return once more to the truth
and to the law.

There are those who find fault with ecclesiasti-
cal penalties as an imposition on conscience. But
even in this vigorous defence of objective truth

and law, there can be found only the discipline of a
strong and loving mother—protecting the person-
ality of the House of God and doing a service as
well to the supremacy of conscience itself.

Excommunication is an example of what is
meant. This penalty is used only rarely and in ex-
treme cases of deliberate violation of the law. By
excommunication there are withdrawn from the
offender some of the spiritual blessings which the
Church so generously bestows upon her children.

The penalty is of divine origin. It was Christ who
said: “If thy brother shall offend against thee, go,

and rebuke him between thee and him alone ... if
he will not hear thee, take with thee one or two
more: that in the mouth of two or three witnesses
every word may stand. And if he will not hear
them : tell the church. And if he will not hear the
church let him be to thee as the heathen and pub-
lican” (Matt. 18:15).

Ecclesiastical penalties are the expression of a

vigorous discipline, but they are neither violent nor

tyrannical. A Catholic first of all accepts the
authority of the Church. If then he desires to

range his own notions against her divine man-
date to teach, is there any injustice if by warning

and even punishment she tries to recall such a

sinner to the truth? Is there not present the vindi-

cation of the supreme right of conscience if she



LAW AND CONSCIENCE 33

allows the offender to follow his own path, he
having already deserted her ways?

The Church then makes a direct and definite
demand on conscience, by teaching and in extreme
cases even by penalties. The Catholic on his part
has an obligation towards law and conscience.
With whatever abilities and lights he may possess
he must try to bring law and conscience into har-
monious action. He must seek to know the law
according to his vocation, station in life, and edu-

cation. He must always remember that conscience
has a definite relationship to God’s law and the

teaching of the Church. He must clearly distin-
guish the accusations of conscience from that nat-
ural discomfort which arises in sensitive and cul-

tured men who by some fault, feel they have be-
trayed their dignity or position. Virtue is more
than graceful conduct and sin is more than an
offense against politeness and human dignity.
There is a type of self-reproach that has nothing

whatsoever to do with God. The pangs of conscience
must include the feeling that God and His good-
ness have been outraged. There is an obligation not

to stifle conscience or to lie to it. To imagine that
the law was made for others but not for ourselves,
to create convenient standards for a partial moral-

ity, are two ways of many in which this is frequent-
ly done. In the first case it is accomplished by
assuming that by education, or position, or by un-
usual attachment to some work or person, the law
has become inoperative. The second case is to
create an attitude of mind that distinguishes be-
tween the stealing of a penny from a servant which
would be very wrong, and refusing to see wrong in
a dishonest contract.



34 LAW

In closing this series today on Law, we hope
that we have been able to bring to light the reasons
for the perennial youth of the Church of Christ in
spite of a life that has been longer than any insti-
tution, civil or religious, that now exists on the face
of this earth. It has been our desire to enter into

the real reasons why the greatest thinkers of all
times have stopped to admire the unfailing correct-

ness of the Church in the analysis of world prob-
lems, and to allow you to see why the vision of the
Church is always keen and sure.

All this may be summed up as follows: The
Church of Christ has the law and teaching of
Divine Wisdom—She knows what law is and
whence it comes; she understands the relationship
between the law and freedom as manifested in con-
science. Fully aware of all this she must necessar-
ily be a disciplined organization upon which has
grown the enthusiasm of sanctity. Because of her
mission and organization she defies time and con-
querors. Pius VII, while a prisoner of Napoleon,

a broken and homeless man, a captive in a foreign
city, captivated the hearts of the Parisian crowds.

In this tragic moment when the whole world
seems ready to fall before injustice and barbaric
cruelty, when Macauley’s prediction, which we
pray God to avert, may yet be seen by us who live
today

—
“the broken arch of London bridge” “the

ruins of St. Paul’s”—there is one thing we can still
be sure of, that the Church of Christ will still be
standing in undiminished vigor when the storm has
passed because she bears in her the wisdom, the

strength, and the goodness of God.



94 CATHOLIC HOUR STATIONS

In 41

Alabama

Arizona

Arkansas
California

Colorado

Connecticut
D. of C.
Florida

Georgia
Idaho

Illinois

Indiana

Kansas
Kentucky
Louisiana

Maine
Maryland
Massachusetts

Michigan
Minnesota

Mississippi
Missouri

Montana

Nebraska
Nevada
New Mexico
New York

North Carolina

North Dakota

Ohio

Oklahoma

Oregon

States, the District of Columbia, and Hawaii

Birmingham WBRC,
Mobile WALA,
Phoenix KTAR,
Tucson KVOA,
Little Rock KAR'K,
Bakersfield KERN,
Fresno KMJ,
Los Angeles KECA,
Sacramento KFBK,
San Francisco KPO,
Stockton KWG,
Denver KOA,
Pueblo KGHF,
Hartford WTIC,
Washington WRC,
Jacksonville WJAX,
Lakeland WLAK,
Miami WIOD,
Pensacola WCOA,
Tampa WFLA-WSUN,
Atlanta WSB,
Boise KIDO,
Pocatello KSEI,
Chicago WMAQ-WCFL,
Evansville WGBF,
Fort Wayne WGL,
Indianapolis WIRE,
Terre Haute WBOW,
Wichita KANS,
Louisville WAVE,
New Orleans WSMB,
Shreveport KTBS,
Portland WCSH,
Baltimore WFBR,
Boston WBZ,
Springfield WBZA,
Detroit _WWJ,
Duluth-Superior WEBC,

Minneapolis-St. Paul
St. Cloud

KSTP,
KFAM,

Jackson
Kansas City
Springfield

WJDX,
WDAF,
KGBX,

Saint Louis KSD,
Billings KGHL,
Butte KGIR,
Helena
Omaha
Reno

KPFA,
WOW,
KOH,

Albuquerque KOB,
Buffalo WBEN,
New York WEAF,
Schenectady WGY,
Asheville WISE,
Charlotte WSOC,
Raleigh WPTF,
Bismarck KFYR,
Fargo WDAY,
Cincinnati WSAI,
Cleveland WTAM,
Columbus WCOL,
Oklahoma City WKY,
Tulsa KVOO,
Medford KMED,
Portland KEX,

980 kc
1380 kc
620 kc
1260 kc
890 kc
1370 kc
680 kc
1430 kc
1490 kc
680 kc

1200 kc
830 kc
1320 kc
1040 kc
950 kc
900 kc
1310 kc
610 kc

1340 kc
620 kc
740 kc
1350 kc
900 kc
670 kc
630 kc
1370 kc
1400 kc
1310 kc
1210 kc
940 kc
1320 kc
1450 kc
940 kc
1270 kc
990 kc
990 kc
850 kc
1290 kc
1500 kc
1460 kc
1420 kc
1270 kc
610 kc
1230 kc
550 kc
780 kc
1340 kc
1210 kc
590 kc
1380 kc
1180 kc
900 kc
660 kc
790 kc
1370 kc
1210 kc
680 kc
550 kc
940 kc
1330 kc
1070 kc
1210 kc
900 kc
1140 kc
1410 kc
1180 kc



94 CATHOLIC HOUR STATIONS
In 41

Pennsylvania

Rhode Island
South Carolina

South Dakota
Tennessee

Texas

Utah
Virginia

Washington

Wisconsin
HAWAII
SHORT WAVE

States, the District of Columbia, and Hawaii
Allentown WSAN, 1440 kc
Altoona WFBG, 1310 kc
Erie WLEU, 1420 kc
Johnstown WJAC, 1310 kc
Philadelphia KYW, 1020 kc
Pittsburgh WCAE, 1220 kc
Providence WJAR, 890 kc
Charleston WTMA, 1210 kc
Columbia WIS, 560 kc
Florence WOLS, 1200 kc
Greenville WFBC, 1300 kc
Sioux Falls KSOO-KELO, 1110-1200 kc
Chattanooga WAPO, 1420 kc
Nashville WSM, 650 kc
Amarillo KGNC, 1410 kc
Beaumont KFDM, 560 kc
El Paso KTSM, 1310 kc
Fort Worth KGKO, 570 kc
Houston KPRC, 920 kc
San Antonio WOAI, 1190 kc
Salt Lake City KDYL, 1290 kc
Norfolk WTAR, 780 kc
Richmond WMBG, 1350 kc
Seattle KOMO, 920 kc
Spokane KHQ, 590 kc
Madison WIBA, 1280 kc
Honolulu KGU, 750 kc
Schenectady, N. Y WGEO, 9.53 meg

(Revised as of January 6, 1940)



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