way in which to meet the customary objection that a superior issues no command if he does not make his will
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known, even though he may wish that a given act be performed by the subject. For it is replied that this intimation may be external and that such an intimation is not pertinent to the discussion, since it does not reside within the lawmaker but is simply a transient act, affecting either the subject or some other external matter, in accordance with the statements made in the preceding Chapter;14 whereas intimation as it exists in the lawmaker would seem to consist pre-eminently in a will to intimate externally, which in its turn is an intimate part or else a consequence of the will to bind, so that, for this reason also, law pertains principally to the will.
15. Some characteristic conditions requisite for law, which are appropriate only to an act of the will. It remains for us to prove the second part of the first antecedent: namely, that some characteristic conditions requisite for law are to be found in an act of the will and not, strictly speaking, in an act of the intellect.
The first condition. The first of these conditions consists in the moving and bringing of the subject to the performance of an action, omission being always included under the term, ‘action’. For the principle that moves and brings one to the performance of an action is the will, since the intellect is a motive force with regard more to the special mode of action (specificationem), and is therefore said to direct rather than to move.
The second condition. The second condition is the possession of a binding force; and this condition, properly speaking, dwells in the will, not in the intellect. For the intellect is able merely to point out a necessity existing in the object itself, and if such a necessity does not exist therein, the intellect cannot impart it [to the object]; whereas the will endows [the object] with a necessity which did not formerly characterize it; and, in the matter of justice, for example, it causes a thing to be of a given importance; and again, in connexion with other virtues, it creates a necessity for acting here and now, which would not exist under other circumstances and per se.
The third. The third condition consists in the fact that lawmaking is an act of jurisdiction and of superior power, a matter upon which I shall
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comment below.15 Consequently, it is (so to speak) the use of a form of dominion; and use is an act of the will, particularly the use of dominion, which is a free act.
The fourth. The fourth condition consists in the fact that law is an act of legal justice. For the prince, when he makes law, should have regard above all for the common good, which is a matter pertaining to legal justice. And such justice is a virtue of the will, although it may require the direction of prudence, a requirement which is common to all the virtues of the will. From this it follows simply that prudence is in the highest degree necessary to lawmaking, as is rightly demonstrated by the grounds supporting the first opinion; but it does not follow that this must be a formal act of prudence; even as just distribution and right choice depend upon prudence, while nevertheless they constitute formally an act of the will operating through the medium of distributive justice or of some other moral virtue.
16. One may adduce as a final argument the fact that it is possible, in the light of the remarks I made when setting forth the first opinion, to understand how difficult it is to designate the act of the intellect that constitutes law; whereas it is easy to make such a designation in the case of the will. For the will of a superior to bind a subject to a given act, or—what is equivalent—to set a given matter within the sphere of obligatory virtue, is well denoted by the term ‘law’. This is true, both because of all the facts that we pointed out in connexion with the characteristic properties of law; and also because nothing antecedent to this will can have the force of law (a matter on which we have also touched), since it cannot induce necessity, while all that is subsequent [to the said will] is rather the sign of law that has already been conceived and established in the mind of the prince, since even the mental locution itself is only a mental sign.
To these fundamental statements, Bartholomew Medina could have made no answer other than a denial that a will to bind on the part of the prince is necessary for lawmaking, and for binding through law.
17. The doctrine of B. Medina concerning the will to bind, is assailed. This answer, however, is apparently a denial of what the other authors of the two opinions consider as a certainty; unless perhaps, there is some ambiguity in the wording. For it is a certainty that, in the case of these moral
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effects which depend upon the will, the agents do not act without intention or in excess thereof; but binding by means of law is a moral effect and one which depends upon the free will of the lawmaker; therefore, in order that this binding effect may be accomplished, intention and will on the part of the legislator are necessary, for otherwise, the said effect would take place without intention, an inacceptable conclusion.
The truth of the minor premiss is self-evident, and the same author (B. Medina) accordingly admits that law requires the concurrence of the will; while the major premiss is commonly accepted by the theologians, and, what is more, by the jurists. It is in this sense that they make the statement (Decretals, Bk. III, tit. V, chap. xxxviii) that the acts of agents do not operate in excess of their intentions.
This conclusion, moreover, is made manifest by a process of induction, since it is for this reason that excommunication imposed without intent to bind is not binding, and absolution given without intent to absolve does not take effect, the same being true with respect to the other Sacraments; and in like manner, a vow or a marriage or a similar act, engaged in without intent, is not valid. The reason for this invalidity is the fact that all the virtue of such actions flows from or through the medium of the will. And again, it is the will that confers being as though it were the form. For an external act performed without intent is not, from that standpoint, a true moral act, but rather one that is feigned.
18. To will to command, and to will not to bind, are incompatible intentions, repugnant [to reason], unless ignorance is involved. Similarly, in the case of vows, the intent to vow, and the intent not to bind [oneself], are incompatible. Wherefore, with respect to the example of the vow, it is in my opinion certain that the said vow is not binding if it was made without intent to bind; a point which I have brought out elsewhere (De Religione, Tr. VI, chap. iii).16 However, just as in the case of vows, a situation is frequently conceived of, in which some one vows with the intention of vowing and has at the same time the intention not to bind himself, even so B. Medina conceives of a similar situation in the case of a legislator who has the will to command and not to bind. Under
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those circumstances, says Medina, the legislator nevertheless does bind. However, unless ignorance is involved, such intentions are incompatible and involve a [mutual] contradiction, when the first intention is to vow, or to command, in very truth and not fictitiously. For willing to command is nothing more nor less than willing to bind, or at least, willing to indicate a will to bind; and the same is true in due proportion with respect to vows. If, on the other hand, the intention is not of the sort described, but is simply an intention to command or to vow outwardly, then doubtless the result is nil, and no true law is decreed, nor is any true vow made. For it is certain that a fictitious promise that does not bind can be made; but this sort of promise can occur in no other [than a fictitious] way. In due proportion, the same holds true of precepts; and therefore, if it were known to a subject that his superior had not the intention of binding, although he might give utterance to words of command, that subject would certainly not be bound; a point on which [the authorities] agree, with respect to the case of excommunication above mentioned. Again, and conversely, we have the words of St. Thomas, who says (II.–II, qu. 104, art. 2) that the will of a superior, in whatsoever fashion it may become known to his subject, is a kind of precept; a statement which cannot be understood save with reference to this will to bind.
19. In the case of an oath there may exist, together with an intent to take the oath, the intent not to bind oneself. In the case of oaths, however, the principle is not altogether the same. For it is possible that one may have the intention of taking an oath, that is, of calling God to witness, and may nevertheless intend