A manual of moral theology for English-speaking countries/Book 6
BOOK VI
PRECEPTS OF THE DECALOGUE
PART I
THE FIRST COMMANDMENT
CHAPTER I
THE MATTER OF THE COMMANDMENT
THE great precepts of the natural law which binds all men are summed up in the Ten Commandments given by God to the Israelites, which our Lord declared that he came not to destroy but to fulfil. They bind all men, and they will continue to do so as long as human nature is what it is; if only they were observed, the blissful state of happiness of which poets have dreamed, and reformers have striven in vain to bring about, would indeed be realized on earth. The first three Commandments lay down our duty toward God and constitute the first table; the rest, forming the second table, contain our duties toward our neighbour and our self-regarding duties.
The First Commandment, in the words of Exodus, is: "I am the Lord thy God . . . thou shalt not have strange gods before me."[1]
Here God solemnly declares to us that he is our Lord God from whom we have all that we possess, on whom we depend absolutely, to whom we altogether belong. From this, our essential relation with God our Creator, is derived immediately our duty to worship him as our first beginning and last end. The fact that we derive our bodily origin under God from our parents lays upon us certain obligations in their regard; similarly, our relation to God imposes on us our highest duty of worshipping God, our Creator.
The acts of this worship, which natural reason thus prescribes, belong to the virtue which theologians call religion. They are acts such as prayer, worship in the stricter sense, sacrifice, offerings, tithes, vows, oaths, etc. Most of them will be more suitably treated of elsewhere; in this part we will consider the subject of prayer and worship, and then the chief sins against the virtue of religion.
CHAPTER II
ON PRAYER
I. PRAYER sometimes means any pious affection by which the mind and heart are raised to God. More strictly, it is the petitioning of God for what we stand in need of, and this is called the prayer of petition to distinguish it from the more general signification of the term.
Mental prayer is made with the internal faculties of the soul, while vocal prayer is made with the lips also.
Public prayer is offered in the name of the Church by authorized ministers in forms approved by the Church; all other is private prayer. Public worship is subject to the authority of the Church, which has regulated it by a large body of laws and decrees. Unauthorized forms of prayer may not be used in public worship, and it has been prescribed that only the litanies which are found in the Breviary and in the more recent editions of the Ritual, or such as have been specially approved by the Holy See, may be used in public. Moreover, no litanies may be published even for private use without the approbation of the Ordinary (Can. 1259).
2. For adults, prayer is a necessary means of obtaining salvation; for there are certain graces necessary for salvation, such as final perseverance, which God only grants in answer to prayer, as St Augustine teaches. 1 Prayer is also of precept: " We ought always to pray and not to faint."[2] This precept is grave of itself, and for its fulfilment requires that we should pray frequently. Beyond saying this, it is difficult to determine precisely what neglect of prayer is required for a mortal or a venial sin. It would seem certain, however, that grave sin would be committed by altogether neglecting prayer for a whole year. The faithful rightly accuse themselves in confession when they have omitted morning or night prayers, for those times are the most suitable for fulfilling this duty, and if no prayers are said then, they will hardly be said at other times; moreover, the omission will usually be due to sloth or carelessness about spiritual things.
3. Our Lord promised that prayer when rightly made would be heard by God: " I say to you, Ask and it shall be given you: seek and you shall find; knock and it shall be opened to you." [3] We learn from his teaching and from the nature of prayer what qualities it must have in order to be acceptable to God and heard by him. The object prayed for must be necessary, or at any rate useful for salvation. Not only spiritual blessings are proper objects of prayer but temporal blessings as well, as far as they conduce to the welfare of the soul. Prayer must be persevering: God has promised to hear prayer, but he has not promised to hear it at once. The time must be left to his wisdom and providence with due conformity to his holy will. Prayer must come from a humble heart, in which faith, hope, and charity dwell, in order to merit the promises of God. Moreover, God will not do violence to man's free will, and so if prayer is offered for someone else, its effect to some extent depends on that person's dispositions and free will. He may, if he pleases, put obstacles in the way, which will prevent the prayer from obtaining the precise effect wished for in his regard. Theologians conclude that prayer must be made for one's self in order to be infallibly heard by God.
4. We are obliged by precept only to pray to God, unless we admit with the common opinion that anyone who should never pray to the blessed Virgin Mary would sin venially by neglecting so powerful a means of salvation. We may, however, lawfully and with fruit pray to the angels and saints, more probably to the holy souls detained in purgatory, and in private to anyone whom with reasonable certainty we believe to be with God in heaven, that they may intercede with him for us.
5. We should pray for all men whom it will benefit without excluding anyone in our private prayers. It is useless praying for the damned, and the Church forbids her ministers to pray publicly for those who are excommunicated.
CHAPTER III
ON WORSHIP
I. Worship here signifies any external action by which we show deference and respect to another. Such an act is grounded on the persuasion that the person honoured is worthy of our esteem, and that it is proper to mark our esteem by such an external act of deference.
If the qualities which command our respect belong to the sphere of civil life, our worship is civil; if they belong to the sphere of religion, it is religious worship. Religious worship which is paid exclusively to God on account of his infinite and uncreated excellence is called by divines latria. That paid to the saints is called dulia, while the special worship with which we honour the blessed Virgin Mary, the Mother of God, on account of her created but pre-eminent excellence is called hyperdulia.
Worship is absolute when the excellence which grounds our esteem is in the object honoured; it is relative when paid to some object on account of its connection with a person worthy of our esteem and honour.
2. In this chapter we will briefly consider the regulations of the Church with regard to the worship of the saints, their relics and images, and the principles which underlie that worship. We suppose the truth of the Catholic doctrine on this subject—that the worship which the Church authorizes to be paid to the saints, to their relics and images—is lawful, praiseworthy, and meritorious. In the first place, then, we are allowed privately to show that inferior worship, which is called dulia, to anyone whom we know with moral certainty to have died in the grace and friendship of God. We may also show marks of relative worship to anything connected with him during life. It is evident that there is nothing reprehensible in such worship; the world is accustomed to show similar marks of its esteem to its great statesmen, generals, poets, and inventors. The Church does not interfere with private worship provided there is nothing in it that is objectionable.
3. Public worship, however, is subject to the authority of the Church, and she regulates it both as to its manner and objects. No signs of public worship may be used besides those which are sanctioned, nor may the accustomed and approved signs of honour be shown to any except those who have been canonized or at least beatified by the Holy See. Only the saints, not the beatified, are invoked in the public litanies, and ( ordinarily it is not lawful to erect churches or altars in honour of the beatified; this mark of honour is reserved for the canonized saints. The pictures of the saints are painted with aureoles, those of the beatified with rays. With the permission of the Ordinary it is not forbidden to place statues of men who have not been canonized or beatified in our churches provided there be no marks of religious worship shown them; and paintings of such men may, under the same condition, be placed on the walls or windows of a church. Such paintings, however, may not be placed over an altar.
4. The Church is very careful to guard against abuse and fraud in the worship of the saints, their images and relics, as is shown especially by the wise decree of the Council of Trent on the invocation of the saints and the veneration paid to their relics and images (sess. 25). In that decree it is specially prescribed that no new relics or miracles are to be admitted except with the Bishop's approbation after making a diligent inquiry into the truth of the matter. The question of the authenticity of relics is one of fact and proved by the ordinary rules of evidence. When there seems to be moral certainty of the genuineness of a relic, the Church permits relative honour to be paid to it on account of the spiritual excellence of the person with whom it was connected. The honour is thus referred to the person of the saint and to God who is glorified in all his saints. It is quite possible for mistakes to be made about the genuineness of a relic; the infallibility of the Church does not enter here. When a mistake is detected, of course the honour previously paid to a false relic should stop. No one need be scandalized or distressed when any such discovery is made. The merit of the worship previously paid in good faith is not lost; the saint whose relic it was supposed to be was really honoured by marks of devotion shown to it out of love for him. It is as if a devotee of Shakespeare were to keep a bust in his room, and show it marks of honour because he supposed it to represent the great poet; if he found out that it was a bust of Thomas Cromwell, he would be disappointed, but neither he nor Shakespeare would have suffered any great loss.
CHAPTER IV
ON SUPERSTITION
SINS may be committed against the virtue of religion by excess or by defect in the same way as against other moral virtues. Sins against religion by excess come under the general term of superstition, of which there are several species. For the sin of superstition may be committed by worshipping the true God in the wrong way or by worshipping false gods. We will first briefly treat of the wrong ways of worshipping the true God, and afterwards of worship paid to false gods.
SECTION I
Wrong Ways of Worshipping God
1. God may be wrongly worshipped either by false worship or by superfluous worship being paid him. Worship of God is false when its meaning is not in accordance with fact, or when the falsehood is in the person who performs the act of worship, as when a layman performs the duties of a priest, or when someone tries to gain credence for false miracles or false relics. The ceremonies and practices of the Jewish religion signified that the Messiah was to come, and so now, after the coming of our Lord, they could not be employed without superstition. Inasmuch as falsehood in religion is a grave injury to God, this species of superstition is mortally sinful.
2. Anything in the worship of God which does not tend to his honour and glory, or which is against the ordinances and practice of the Church, to whom the regulation of religious worship exclusively belongs, is superfluous worship and superstition. This sin is committed by attributing an infallible effect to a fixed number of prayers or acts of piety, or to the mere material wearing of scapulars or medals, or by unwarrantably acting against the rubrics while saying Mass or administering the sacraments or sacramentals of the Church. The intention of the Church is that scapulars, medals, and other pious objects should be used by the faithful with confidence in the goodness and power of God, whose aid is invoked on the wearers by the blessing of the Church. Ordinarily, however, this kind of superstition will not be more than a venial sin.
SECTION II
On Idolatry
The sin of superstition is also committed by giving divine honour to false gods. This is done by idolatry, divination, vain observance, and magic.
By material idolatry divine worship is given to a creature through fear or for some other reason merely externally, without any intention of honouring it as God. It is a grave sin, for it is directly against the obligation of making external profession of the faith, and contains the grave malice of a lie in matters of religion.;
Formal idolatry is perfect or imperfect. The former consists in honouring a creature as God, falsely thinking it to be God. The latter knowingly honours a creature as God, without any excuse of ignorance, out of hatred towards him, or wishing to obtain something thereby. Both are grievous mortal sins, but the latter is the more grievous on account of the greater knowledge and malice.
SECTION III
On Divination
i. We here suppose that the devil, a wicked spirit of great intelligence and power, but subject to God, exists and continually interferes in the affairs of men in order to ruin them. This truth belongs to the Catholic faith and cannot be denied without sin. The sin of divination is committed when the devil is invoked expressly or tacitly in order to discover what is secret and hidden. There is express invocation of the devil when his aid is expressly implored. The devil is tacitly invoked when altogether inadequate means are used to find out what is occult, means which are not sufficient for the purpose naturally, and which have not been ordained by God for that purpose. The devil is eager to be appealed to in order the more easily to attain his own ends, and anyone who uses such inadequate means to find out hidden secrets virtually appeals to the devil to help him. A great variety of such means of divination has been in use from the earliest times among all nations; and periods which have witnessed a decay of faith have also witnessed a recrudescence of these superstitions. The following are some of the better known methods of divination practised from the earliest times. The devil sometimes takes possession of the body of a human being and manifests what is secret through it; this was called pythonism. The devil had his prophets as God had. In necromancy the devil answers through the dead called to life again. At certain places he gave oracles through idols. Sometimes he communicated with men through dreams. In all the foregoing methods we have the express invocation of the devil. He is tacitly invoked when the lines of the hand are consulted as indications of the future, as is done in chiromancy; or the course of the stars, as in astrology; or the flight or song of birds, as in augury; or some chance event is taken as foretelling what is going to happen, as in omens.
2. Divination is mortally sinful, for it is a great insult to God to hold intercourse with and seek aid from the devil, his bitter enemy; and, besides, it is most dangerous to the parties concerned. He is wont gradually to insinuate himself until he has his victim within his power, and then he works on him his evil will. Such practices as those of divination are specially declared to be hateful to God in Holy Scripture: " Neither let there be found among you anyone that shall expiate his son or daughter, making them to pass through the fire; or that consulteth soothsayers, or observeth dreams and omens, neither let there be any wizard, nor charmer, nor anyone that consulteth pythonic spirits, or fortune-tellers, or that seeketh the truth from the dead. For the Lord abhorreth all these things, and for these abominations he will destroy them at thy coming." [4] Although tacit as well as express divination is grievously sinful of itself, yet it is frequently only venial on account of the ignorance and simplicity of those who indulge in it, or because they do not entirely believe that the future can be known by such methods, and they use them in joke or out of curiosity. In this way young people who consult gipsies or palmists are ordinarily excused from grave sin.
3. We know from Holy Scripture that almighty God has sometimes made known his will to men by means of dreams, and the devil, too, is able to fill the mind with his suggestions during sleep. If God in some rare instance uses dreams to make known his will, he should of course be lovingly obeyed. The suggestions of the devil, on the contrary, should be repelled and despised. We can distinguish between the two sources by observing whether the impulse received is towards good or evil, whether what is suggested is worthy of God, whether it tends to disturb our peace or leaves us tranquil and disposed to the service of God. Dreams have ordinarily a natural cause, but they are no indication of what the future will bring. We may not, then, guide our conduct by dreams; God has given us our reason and the Church to teach us what we should do; we must follow these anld not dreams if we would act aright. Constantly to guide ourselves by dreams would be mortally sinful, to allow them to influence us occasionally and in matters of little moment would not be more than a venial sin.
4. There is no harm in casting lots to decide a doubtful claim; the parties merely agree to stand by what turns up by chance. It is superstitious and sinful to cast lots in order to discover some secret, or with a view to shaping one's life according to the issue. Sometimes this method of deciding doubts has been adopted by holy men in consequence of an intimation received from God, or sometimes because no better way out of the difficulty appeared.
The use of the divining-rod under the belief that a stick of a special shape cut from a particular kind of tree or bush will point out hidden treasure, or mines, or springs of water, is superstitious and sinful. For it is certain that there is no natural force which acts in the arbitrary manner in which the divining-rod is said to act under the circumstances. It is not impossible but that particular individuals may be very sensitive to the presence of water or minerals even when hidden under the surface of the earth, and perhaps the frequent finding of springs by dowsers is partially to be explained in this way. Then by practice and experience a power of detecting the presence of underground water from the vegetation or other signs on the surface may be developed. There is also without doubt a great deal of fraud in such matters. Finally, the devil may sometimes intervene.
5. Modern spiritism is obviously the pythonism, necromancy, and other forms of divination which have been mentioned above. It is gravely sinful, therefore, to act as a medium or to consult one with a view to finding out something which is not known. Crystal-gazing, table-turning, the use of the planchette for occult purposes, is also divination and grievously sinful. It is not impossible that the movements of the table in table-turning and of the planchette are due to the unconscious action of the sitters. On this hypothesis it would not be unlawful to make experiments with a view to finding out the truth; divination comes in when by such means the sitters seek to discover what it is certain none of them knows, consciously or unconsciously.
It is well to bear in mind a remark which St Thomas Aquinas makes after St Augustine, that the devil wishes to excite among men a greater curiosity about occult matters " so that being implicated in these observances, they may become more curious and get themselves more entangled in the manifold snares of pernicious error." [5]
SECTION IV
On Vain Observance
1. The term vain observance is used by theologians to designate various kinds of superstition by which altogether disproportionate means are employed to procure a sure and certain effect. It comprises the use of charms, spells, and cabalistic signs, which are used to preserve persons and things from harm, or cure wounds and diseases, or acquire knowledge without the labour of study. It also signifies the superstitious observance of chance events and days, some of which are considered lucky, others unlucky. Magic is the art of wonderworking by the help of the devil.
2. Vain observance, or witchcraft and magic, is gravely sinful for precisely similar reasons as divination is. There is only an accidental difference between these kinds of superstition, for while divination uses disproportionate means to discover what is hidden by the help of the devil, witchcraft uses disproportionate means to obtain certain and wonderful effects by his help. Morally, therefore, there is no difference between divination and witchcraft. Like divination, witchcraft may contain an express or tacit compact with the devil, and although if the compact be express there will always be mortal sin, there will frequently be only venial when the compact is tacit. Ignorance or good faith or want of full confidence in the effect will in that case frequently excuse from serious sin. Moreover, there must be advertence to the total inadequacy of the means to obtain the effect desired, and to the danger of the devil's intervention, otherwise there will not be the sin of superstition. And so people who do not like to undertake any journey on a Friday, or to sit down with thirteen at table, because they have always heard that it is unlucky, and because their fathers had similar scruples, may often be excused from sin.
3. In a case of doubt whether a particular effect is to be ascribed to natural causes or not, we should rather ascribe it to natural causes than to the devil, for we must not bring in the preternatural without necessity, and we do not yet know all the forces of nature. Thus many believe that telepathy really exists and is due to natural causes. In such a case of doubt, then, we may experiment and investigate the matter; it is advisable to renounce all intention of dealing with the devil as a precautionary measure. If, on the contrary, it is certain that the effect is not attributable to natural causes, it should be ascribed to the devil rather than to God in case of doubt; for God does not work miracles without good reason, and ordinarily the sanctity of the person concerned and other circumstances clearly show divine intervention when it takes place.
4. Many theologians hold that the phenomena of hypnotism are due to preternatural causes, and consequently they maintain that it is unlawful to induce the hypnotic state or to have any part in it. Others more probably think that the state itself and the susceptibility of the hypnotized subject to suggestion on the part of the hypnotizer, together with those phenomena which affect the bodily organs and the imagination, are due to natural causes. The rarer phenomena of clairvoyance by which scenes and passing events at a great distance are seen, or by which an ignorant medium shows knowledge which is not possessed in the normal state, must be attributed to preternatural causes. For it seems impossible that natural forces should be able to produce effects altogether beyond their range. Even if we admit that the hypnotic state and the bodily phenomena are due to natural causes, it does not follow that anyone may induce the hypnotic sleep merely for the sake of experiment or out of curiosity. Such a practice would be accompanied with grave dangers, moral and physical, and it is not lawful to permit one's self to be deprived of the use of reason, and to subject one's self to another's control, without good cause and proper safeguards. Medical men, however, and other persons of skill and experience cannot be precluded from using a means which is very probably innocent, with proper precautions and for a good reason.
CHAPTER V
ON TEMPTING GOD
I. IN this and the two following chapters we will treat of sins against religion by defect. The first of these is tempting God, which a person commits by saying or doing something by way of experiment to discover whether God is wise, powerful, good, or endowed with some other perfection. There is a formal sin of tempting God when there is a positive intention to make an experiment with God; the sin is virtual when that intention is absent, but something is said or done which can have no other meaning than to find out whether God has some perfection or not. Even in this case there must be some reference to God, some desire or wish to implore his help; otherwise there cannot be any tempting of God.
2. Formal tempting of God is a mortal sin, as is obvious; for it is a grave insult to the divine Majesty, who has graciously given men all the knowledge about himself that they require, and it contains the malice of unbelief as well.
3. God is virtually tempted when, contrary to the designs of his Providence, we neglect natural means, trusting that he will give us special help. This too is of itself a grave sin, but it often becomes venial on account of want of knowledge, consideration, or advertence. Thus people are guilty of grave sin who refuse to send for the doctor and will not use the ordinary remedies when they or their children are seriously ill, trusting that God will work a miracle. A preacher who neglected to prepare properly for his sermon, or one who exposed himself to some slight danger through improper trust in the divine help, would only sin venially. After doing what we can, or if we can do nothing, then we may at once with full confidence have recourse to God in our necessities. The trials by ordeal, which were in vogue in the Middle Ages, were in the ninth century condemned by the Church as superstitious.
I. SACRILEGE is defined to be the irreverent treatment of sacred persons, places, and things. The irreverence consists in doing something which is specially repugnant to the sanctity of the object in respect of its sacred character. A person, place, or thing becomes sacred by being dedicated to the service of God by public authority, for it does not seem possible that the dedication of an object to God by private authority should be able to lay an obligation on others to treat it with the reverence due to sacred things. Such an effect requires public authority.
Objects become sacred in consequence of being dedicated to God's service by an authorized person according to the form prescribed by the Church. Not every form of blessing, however, makes the blessed object sacred. We must distinguish between blessings which invoke the divine favour on the use of certain things, but which do not make them sacred, and blessings which hallow and consecrate the object so that it can no more be lawfully used for profane purposes. Food, or candles, or holy water, which are blessed in the former way, do not thereby become sacred, and may still be used for ordinary purposes; churches, chalices, and baptismal water are consecrated by special blessings and may only be used for the purposes to which they are dedicated (Can. 1147-1150).
The sanctity which belongs to a consecrated person is different from that which belongs to holy places, and this again is different from that which belongs to sacred things. So that the sins by which sacred persons, places, and things are violated are specifically different from each other. Theologians dispute whether these three species of sacrilege contain other lower species or whether they are themselves the lowest. Many of them hold that they are the lowest, and this seems to be the opinion of St Thomas.[6]
2. Sacrilege in all its species is a grave sin of itself, inasmuch as irreverence shown to sacred things redounds to the dishonour of God, to whose service they are dedicated. If, however, the matter be trivial, as, for example, some slight irreverence to the Blessed Sacrament, sacrilege will only be a venial sin.
3. Personal sacrilege is committed in three ways:
(a) By violating the privilege of the canon, by which it is forbidden under pain of excommunication to lay violent hands on the clergy or on religious (Can. 2343).
(b) By violating the privilege of the immunity of the clergy from civil jurisdiction, as far as this is still in force (Can. 120).
(c) When persons consecrated to God by the vow of chastity violate their vows. Such persons are all those who are in sacred orders, and all religious who take public vows even though they be simple and not solemn. All sins, therefore, against purity, whether internal or external, which these persons commit, or which others commit with them, are sacrileges. It is a disputed point among theologians whether a private vow of chastity makes the person sacred, so that sins committed against the vow are sacrilegious. Both opinions are extrinsically probable, though the negative view seems more in accordance with what was said above, in keeping with the common teaching of divines. The question is not of great practical importance, since sins committed against chastity by those who are under a private vow have certainly a twofold malice, one against chastity, and the other against religion; and sins against religion are called sacrileges in a wide sense.
4. Local sacrilege is also committed in three ways:
(a) By violating the immunity of sacred places as far as this is still in force.
(b) By committing certain crimes in a church or public oratory, which has been consecrated or at any rate blessed, by which crimes they are polluted according to canon law. Those crimes are homicide, suicide, any shedding of blood by violence which constitutes a mortal sin, the putting of the church to impious and base uses, and the burial within a church or oratory of an unbaptized person, or of one who has been excommunicated after a condemnatory or declaratory sentence (Can. 1172).
(c) By performing certain actions and by committing certain sins which of their nature or by special disposition of law are especially repugnant to the reverence due to holy places. Sacrilege is thus committed by holding a public market in a church, or a banquet, or using it to stable horses or cattle. There is, to be sure, a special indecency and irreverence in committing any sin in church, but the malice contracted from this circumstance will only be mortal in certain special cases.
On this ground it is probable that only external and consummated sins against chastity contract the grievous malice of sacrilege from being committed in a church; internal or not consummated sins against purity probably do not contract the grave malice of sacrilege if they are committed there.
5. Real sacrilege is also committed in three ways:
(a) By treating with irreverence sacred things, such as the sacraments, Holy Scripture, relics, sacred images.
It is a sacrilege to administer or to receive the sacraments in a state of mortal sin, to quote the words of Scripture for the purpose of making an obscene joke, 'to treat sacred images and relics with contempt.
(b) By theft of sacred objects. Sacrilegious theft is committed by stealing a sacred object from a sacred place, or a profane object from a sacred place, or a sacred object from a place that is not sacred, according to an old decree of canon law. [7] In the first of these cases a double sacrilege is committed, local and real, as when a chalice is stolen from the tabernacle; in the last case real sacrilege only is committed, as when a chalice is stolen from a priest's room. Local sacrilege only is committed in the second case, and, indeed, according to a probable opinion, then only when the object stolen belongs to the sacred place, or has been entrusted specially to the sacred place for safe keeping. If a thief picks a pocket in church, his sin probably has not the malice of a grievous sin of sacrilege, although it may be grievous as against justice.
(c) By committing the sin of simony, the treatment of which is reserved for the next chapter.
6. Theft of ecclesiastical property or wilful damage done to it is sacrilege, for although the money or other property belonging to the church is not sacred in itself, still by damaging or stealing it an injury is done to those sacred persons, places, and causes that are supported by church property. The private property belonging to a cleric is not ecclesiastical property, but only that which belongs to a church, Religious Order, or pious institution erected by episcopal authority. Theft, therefore, of the private money of a cleric is not sacrilege.
7. It is not lawful, except for clerics or others who have care of them, to touch the sacred vessels which are used to hold the Blessed Sacrament. Palls, corporals, and purificators should after use be washed by a cleric preparatory to their being washed in the ordinary manner. A violation, however, of these regulations would not be a grievous sin of itself; indeed, when there was a just cause, it would be no sin at all
(Can. 1306). CHAPTER VII
ON SIMONY
I. SIMONY derives its name from Simon Magus, who, as we read in the Acts of the Apostles, [8] desired to buy with money the power of giving the Holy Spirit. It is defined to be a studious wish to buy or to sell for a temporal advantage something which is spiritual, or which is annexed to what is spiritual. The terms of this definition are technical and require some explanation.
Simony, then, is said to be a studious wish to buy or to sell, in order to emphasize the fact that although no explicit contract is entered into by the parties, there may still be simoniacal dealing between them. Thus, if a person makes a money present to a priest with the intention of obliging him to give him absolution for his sins in return, he commits a sin of simony, though there is no express bargaining between them.
In simony a temporal advantage is exchanged for something which is spiritual. The temporal advantage may be money and whatever is exchanged for money, or a service rendered, or favour, patronage, and defence. The spiritual object which is given for the temporal advantage is whatever has relation to the salvation of the soul. It may, then, be grace or the gifts of the Holy Ghost, or the sacraments and sacramentals, or prayer, or the use of spiritual power for absolving, dispensing, blessing, excommunicating, and so forth.
Something may be annexed to what is spiritual either antecedently or concomitantly or subsequently. The material of which a chalice is made is said to be annexed to a consecrated chalice antecedently, inasmuch as it existed and had its value before the chalice was consecrated. Something is annexed concomitantly and extrinsically to what is spiritual when it is associated with what is spiritual but only accidentally, as the extra labour associated with singing a late Mass. It is concomitantly and intrinsically annexed to what is spiritual when the connection is necessary, as the labour which must of necessity accompany any spiritual function. A temporal advantage is annexed to what is spiritual consequently, when it follows from and is derived from what is spiritual, as the right to the revenues of the parish is derived from the office of parish priest. There is no simony in buying or selling what is antecedently annexed to something which is spiritual, provided that the price be not increased on account of the connection with what is spiritual, and provided the Church has not forbidden it. It is lawful to sell consecrated chalices or the fabric of a church for what the materials are worth. The Church has forbidden any money to be received for the holy oils, even so much as the cost of the oil. Similarly it is not simony to receive payment for extra labour spent on some religious function. It is simony to receive money for what is concomitantly and intrinsically annexed to that which is spiritual, for they are regarded as identical. It is also simony to buy or sell that which is consequently annexed to what is spiritual, for the accessory follows the principal.
2. Simony is called mental when no express contract is entered into between the parties. It is purely conventional if the contract has been expressly entered into, but has not yet been executed by either party; it is partly conventional when the contract has been executed by one of the parties. Simony is real when the contract has been executed by both parties to it.
Simony which is committed with reference to the presentation and election to benefices, or the resignation or reservation of them, is called confidential simony, in contradistinction to common simony which is committed in other matters.
Furthermore, simony is of divine law when it is against the law of God; it is of ecclesiastical law when it has been constituted by the prohibition of the Church. For, in order to remove all danger of simony against the law of God, the Church forbids certain contractual dealings where spiritual things are exchanged. Thus it is unlawful without due authorization to exchange benefices, which therefore would be simony by ecclesiastical law. Similarly the Church in certain cases forbids the sale of what is antecedently annexed to some spiritual object. It is thus unlawful to take money for the cost of the material in the holy oils, or to sell blessed rosaries or indulgenced crucifixes and other objects of piety. If this is done, simony is committed, and the objects lose all their indulgences. [9]
3. Simony, like sacrilege, is a grave sin, and if it is against the divine law, it is always mortal. For it is a grave injury to divine things and to God to barter even a small spiritual thing for any temporal advantage whatever. If the simony be merely of ecclesiastical law, it is also of itself a mortal sin, but inasmuch as it is constituted by ecclesiastical prohibition and a sin of disobedience is only venial when the matter is trivial, there may consequently be venial sins of that simony which is merely of ecclesiastical law.
4. It is not simony to receive stipends for saying Mass according to the intention of the giver, nor to take stole fees on occasion of certain priestly ministrations. The stipends and the fees are not given as the price of the spiritual ministrations, but the occasion of these ministrations is taken for the fulfilment of the duty which is incumbent on the faithful of supporting religion and its ministers. " The Lord ordained that they who preach the gospel should live by the gospel." [10] The amount of these offerings, as well as the occasions on which they are made, are regulated by ecclesiastical law and custom, and no change should be made in these ordinances by private authority. The priest has a strict' title in justice to receive them from all who are competent to pay. On the other hand, he has no right to demand more than the authorized amount.
5. The Church has enacted many stringent laws against the crime of simony. Thus by Canon 2392 those who are guilty of the crime of simony in any ecclesiastical offices, benefices, or dignities incur excommunication latae sententiae simply reserved to the Holy See. Ipso facto they are for ever deprived of the right of electing, presenting, and nominating if they have any. Besides, they are to be suspended if they are clerics. Simony committed in the conferring or reception of Orders and of other sacraments brings the delinquent under suspicion of heresy, and, moreover, clerics incur suspension reserved to the Holy See (Can. 2371).
Simoniacal election to ecclesiastical benefices is null and void, and the incumbent thus elected obtains no right to the revenues of the benefice, which accordingly he is bound to restore to the Church, to the poor, or to his lawful successor, if he has already received them (Can. 729).
If commutative justice has been violated in other simoniacal transactions, restitution must, of course, be made; unless justice has been violated there will be no obligation to make restitution or to rescind the contract, though it was sinful to enter into it. Restitution, then, would have to be made by a priest who exacted more than the accustomed stipend for a Mass, for he has a just title to receive that amount and no more; restitution need not be made when a relic has been sold, even though the transaction was sinful.
PART II
THE SECOND COMMANDMENT
THE Second Commandment of the Decalogue is, " Thou shalt not take the name of the Lord thy God in vain." [11] It prohibits all irreverent use of the name of God, blasphemy, unlawful oaths, and violation of vows. Inasmuch as it is virtually positive, it commands us, always to speak of God with reverence and respect.
CHAPTER I
THE IRREVERENT USE OF GOD'S NAME
WE take God's name in vain and break the Second Commandment when we use the word " God " as an exclamation of wonder or impatience, or merely as an interjection in such phrases as " good God," " my God," " by God." If these phrases are used at fitting times and with due reverence they are, of course, not sinful but meritorious; the sin consists in using them without due reverence, too frequently, and merely as expletives, for such an abuse of the holy name of God shows a want of reverence to him and is displeasing to him.
This irreverence, however, is not grave, and so the sin of taking God's name in vain is of itself only venial; indeed, want of advertence will often prevent it from being even venially sinful. Still, care should be taken to correct any bad habit that may have been contracted in this matter.
What has been said of the name of God may be applied with due proportion to those of our Lord, the Blessed Virgin, and the saints.
CHAPTER II
ON BLASPHEMY
i. BLASPHEMY is an imprecatory or a contumelious speech against God. Not only words, but actions also, which express contempt, insult, derision, or imprecation against God are blasphemies.
Blasphemy is direct when the dishonour of God is intended; if the dishonour of God is not intended in itself but it is foreseen that it will be the consequence of one's word or actions, it is indirect. '
Blasphemy which is against God in his own person is immediate; if it immediately affects some creature which has a special relation toward God it is mediate.
2. Blasphemy is a grave insult to almighty God, and is always a serious mortal sin if it is committed with full advertence and consent. To deny the existence of God, to complain against his Providence and assert that he is unjust, to deny the perpetual virginity of the Blessed Mother of God, are so many heretical blasphemies and grievous sins.
It is a disputed question among theologians whether blasphemy against the saints which is only mediately against God is of the same species of sin as blasphemy which is immediately against him. Many assert that the species is different inasmuch as the honour due to the saints is outraged as well as that which is due to God. Ordinarily, however, it is God who is chiefly dishonoured by insults offered to his saints, and so practically we may follow the opinion of other theologians and hold that there is no specific difference between the two sins.
3. To utter imprecations or to speak injuriously against creatures which have a special relation to God is blasphemy. Thus it is grievously sinful to call down maledictions on one's fellow-men, wishing that they may perish eternally. Such acts are seriously against charity as well as religion. To utter imprecations against brute beasts or other creatures which have no special relation to almighty God is not blasphemy, and will not ordinarily exceed a venial sin. Profane words and vulgar expressions like " damn," " bloody," and so forth, are commonly used without definite meaning, and at most are venial sins, because they are unbecoming, shock others, or are manifestations of anger and impatience. It is sometimes said that blasphemy is most common where faith is strong, and this may be a reason why real blasphemy is not so common perhaps with us in ordinary conversation as with some nations.
CHAPTER III
ON OATHS
i. AN oath is the calling on God to witness to the truth of what we say. This calling on God may be express or tacit; it is express when God is mentioned, as, " I swear by God "; it is tacit when we swear by some creature which in a special way shows forth the Divinity or has some special relation to him, as, " I swear by the Christian Faith," " by the Gospel," " by Heaven."
In an assertory oath we call God to witness to the truth of a present or past event; in a promissory oath we call him to witness to some future event.
A solemn oath is clothed with the ceremonies prescribed by law, such as holding up the right hand or kissing the Bible; a simple oath is devoid of such ceremonies.
An imprecation is sometimes added to an oath by such words as, " so help me God "; in this case we have an imprecatory oath; otherwise it is an invocatory oath.
2. There cannot be an oath strictly so called unless there be the intention of swearing and a suitable form of words be used which express that intention. One who uses the colloquialism, " I swear it is so," usually has no intention of taking an oath, nor do the words signify an intention of calling on God to witness to the truth of what is said. The same must be said of phrases like " on my honour," " by my faith," " God knows "; and a fortiori the mention of fabulous gods, as," by Jupiter," etc. However, if there be an intention to take an oath, this will be sufficient to make it binding in conscience whatever the form of words may be, so that perjury will be committed if what is asserted is not true. If the form of words is suitable for an oath, the intention to swear is presumed.
3. If the requisite conditions be fulfilled, oaths are lawful, and indeed they are an act of divine worship, for they are an acknowledgement of the omniscience and veracity of God, as well as a public profession of belief in him. This has been the constant teaching of the Church, teaching which has ample warrant in both the Old and New Testament. The prophet Jeremias lays down the conditions which justify an oath, and many instances of oaths are found in the epistles of the Apostle of the Gentiles. The words of our Lord [12] do not prohibit the taking of oaths if the requisite conditions be present. They give expression to his desire that all Christians should be so truthful and sincere that it will not be necessary for them to use oaths to confirm the truth of what they assert. The conditions which make an oath lawful are given in the words of Jeremias: [13] " And thou shalt swear, As the Lord liveth, in truth, and in judgement, and in justice."
We swear in truth when we are morally certain that what we assert under oath is according to fact. We are not justified in asserting that to be true which we do not know to be true, and we commit the grave sin of perjury if we swear to what we know to be false.
We swear with judgement when there is a just cause for invoking the testimony of God and it is done with proper consideration and reverence. A just cause will be any matter of some importance for the welfare of either soul or body, whether it be public or private. We are not, therefore, justified in swearing to every assertion which we believe to be true; there must be some special reason for employing the name and authority of God to confirm what we say. However, provided that the other conditions are not wanting, the defect of judgement in swearing will not be more than a venial sin, for it is no more than the idle use of the name of God.
It is an insult to God to invoke his testimony to a sinful act or in furtherance of what is sinful. If this is done, the oath is unlawful on account of the want of justice. Justice, then, in this connection requires that the assertion in an assertory oath should not be sinful, such as a sin of detraction or boasting about past sins. In a promissory oath, that which is promised must be honest and lawful.
There is some difficulty and dispute among theologians about the gravity of the sin which is committed when an oath wants justice. If in an assertory oath the testimony of God is unjustifiably invoked to promote a seriously sinful object, the want of justice in the oath will be gravely sinful. If, on the contrary, the testimony of God does not further the end in view, the want of justice will probably be only venially sinful, because the assertion is true, as is here presumed, and the irreverence committed against God by invoking his testimony even to a gravely sinful act does not seem to many to be more than a venial sin. An oath, therefore, taken to confirm detraction in a grave matter is mortally sinful; an oath confirming a boast about grave sins committed in the past is probably only venial.
Somewhat similarly in a promissory oath, if the act promised be gravely sinful, the defect of justice makes the oath gravely sinful; for it is a great insult to God to use his testimony to further what is mortally sinful. If the act promised is only a venial sin, a probable opinion^ holds that the oath is only venially sinful, against a more probable contrary view.
4. The effect of a promissory oath is to bind the person swearing to do what he promises by an additional obligation derived from the virtue of religion, which requires that out of reverence for God we should religiously perform what we promised under oath. If we fail to do this in a matter of moment, grave sin will be committed, as all acknowledge. Moreover, as is obvious, if when the oath is taken there is no intention of keeping it, a grave sin of perjury is committed, for perjury is never venial on account of triviality of matter. If, however, when the oath was taken there was a serious intention of keeping it, but afterwards there was a failure to do so in a matter of small moment, a probable opinion holds that such a want of fidelity in a small matter cannot be more than a venial sin.
5. The obligation imposed by a promissory oath is of strict interpretation, and follows the nature of the act or contract to which it is annexed, so that it is dependent on all the conditions and limitations with which law, or custom, or the circumstances invest the act or contract. For a promissory oath is accessory and follows the nature of the principal act to which it is annexed. And so an oath to observe the rules or statutes of a corporation is understood to refer only to those that are in force. [14]
6. An oath should conduce to the service and honour of God; it cannot be a bond of iniquity; and so an oath to do what is wrong is sinful and of no effect. Similarly, an oath to do what is useless, or which hinders greater good, is null and void. In case, however, another party has acquired rights under an oath, justice requires that this should be kept, and so the mission oath, by which a sworn promise is given to serve a particular church or mission, binds a missionary priest even though he is persuaded that he has a vocation to the religious state.
7. In accordance with rules of canon law, an oath extorted by violence or grave fear is valid, but it can be dispensed by an ecclesiastical superior. Moreover, an oath taken without violence or fraud by which one renounces a private advantage or favour granted him by law must be kept as long as it can be kept without sin (Can. 1317, sec. 2, 3).
8. An oath may cease to bind from intrinsic or from extrinsic causes. If circumstances produce a change in the matter of the oath so that it has become unlawful, or useless, or an obstacle to greater good, or if some condition is not fulfilled, the oath no longer binds. The same must be said when the motive of a promissory oath no longer exists, as if I swore to help a poor person with money who subsequently becomes rich (Can. 1319).
An oath may be annulled, dispensed, commuted, or relaxed, in much the same way as a vow, and it will be more convenient to treat of these extrinsic causes for being released from the obligation of an oath in the next chapter, where the doctrine is applicable to vows and oaths alike (Can. 1320).
CHAPTER IV
ON VOWS
i. A vow is a promise made to God about something which is good, possible, and better than its omission.
It is, then, a promise, a contract with God, a deliberate taking on one's self of a new obligation which binds the conscience; and in this it differs from a mere purpose to do better, which imposes no new and special obligation. Such an act must be perfectly human, performed with full knowledge and with complete use of reason, so that a vow taken by a man who was half drunk, or who had not the full use of reason, would not be valid. A vow, however, does not require actual and explicit consent when the obligation is assumed; it will be sufficient if there is virtual and implicit consent. A person who receives the subdiaconate, to which he knows that the Church has annexed a solemn vow of chastity, takes the vow by the very fact of being ordained, though at the time he is not thinking of it.
A vow in the [strict sense is an act of divine worship offered to God alone, and so we cannot take a vow to the Blessed Virgin Mary or to the saints.
The matter of a vow must, of course, be something which is lawful and good; it would be an insult to God to promise him to do something wrong. It must be something which is possible, both physically and morally, for there can be no obligation to do what is impossible. A vow, then, to avoid all sin, even the slightest, would be invalid, for without a special privilege of God it is impossible. The matter of a vow must not only be good, but better than its omission or its opposite. For what is promised to God in a special manner and under a fresh obligation must be something that will be pleasing to him, but a promise to do something which had better not be done cannot be pleasing to God, who desires our perfection.
A vow is absolute when it has no condition attached to it, otherwise it is conditional.
A personal vow makes a promise of some action to be performed; a real vow dedicates a thing to God.
Vows are perpetual if the obligation is undertaken for life; otherwise they are temporary.
A solemn vow is one which is invested by the Church with special force and stability, together with certain legal effects; others are simple. The vows taken by religious in regular orders specially approved by the Pope, and by those who receive sacred orders, are solemn.
2. Substantial mistake about the matter of a vow or about the circumstances which are regarded as entering into the substance of the matter invalidates a vow. For substantial mistake hinders consent of the will; consent was given to something which was not there, and so there was no contract. A vow, then, dedicating to God a chalice which is thought to be silver, while in reality it is gold, would be invalid, just as a sale of it would be under the same mistake. Merely accidental mistake about things of little moment which were not really the motive for taking a vow does not invalidate it. However, according to St Alphonsus, [15] it is a probable opinion that a mistake about something connected with a vow, which if it had been known before would have prevented its being taken, is sufficient to invalidate it. This doctrine may be applied to private vows, but it cannot be extended to the vows of religion, which place the religious in a permanent state of life. In order to invalidate these, mistake must be substantial. For just as the perpetuity of the state of marriage, 4 the good of the parties concerned, and the public good, require that only substantial mistake should invalidate marriage, so for the same reasons only substantial mistake invalidates the vows of religion, by which the religious enters into mystical espousals with Christ.
Fear arising from natural causes, provided that it does not take away the use of reason, does not invalidate a vow. If, however, grave fear be unjustly caused with a view to compelling another to take a vow, the. vow is null and void (Can. 1307). The same is probably true even if the fear be slight. For God cannot be supposed to accept a promise which has not been freely given, but on the contrary extorted by unjust violence.
3. A vow, as we have seen, imposes a special obligation on him who has taken it to perform what he has promised: " If thou hast vowed anything to God, defer not to pay it; for an unfaithful and foolish promise displeaseth him: but whatsoever thou hast vowed, pay it." [16] If a special time was fixed for the fulfilment of the vow, with the intention that it should be fulfilled then, and at no other time, it must be fulfilled at the time appointed under pain of sin, and it no longer binds after the time has elapsed. If, on the contrary, it was intended that it should continue to bind even after the time fixed had elapsed, then the obligation still remains. The obligation should be fulfilled at the proper and reasonable time, and unreasonable delay will be sinful: " When thou hast made a vow to the Lord thy God, thou shalt not delay to pay it. ... And if thou delay, it shall be imputed to thee for a sin." [17] It is not clear, however, whether even notable delay in the execution of a vow is always mortally sinful. Notable delay without just cause would be a mortal sin if the obligation of the vow were grave, and if the delay endangered its execution altogether or made the matter of the vow notably less than was promised. On the other hand, if a rich man vowed to give a large sum of money to the poor, assigning no particular time for the execution of the vow, it is probable that he would not commit a grave sin, even if he deferred giving the money until his death, and then gave it by his will. For in these circumstances the matter of the vow is not seriously affected by the delay, which therefore cannot be a grave sin.
The measure of the obligation of a vow is the will of him who takes it, much in the same way as the obligation of a law depends on the will of the lawgiver. Ordinarily it will be presumed that in grave matter, such as the Church considers to be sufficient for a precept to bind under mortal sin, a vow also binds under pain of grave sin, for the intention of him who took the vow is presumed to accommodate itself to the matter. Nothing, however, prevents him from limiting the obligation of a vow even in grave matter, so that transgressions of it will be only venial sins, if he expressly intended it. This, however, must not be understood of the essential vows of religion, nor of the solemn vow of chastity annexed to sacred orders. These vows are regulated by the Church, and according to her intention they bind under pain of grave sin in grave matter. Another exception must be made to the general rule that the obligation of a vow depends on the will of him who takes it; for if the matter be light it cannot form the ground for a grave moral obligation, when this is imposed by a human will. As a contract binds only the parties who agree to it, so no one can be bound by a vow made by someone else. In former times it was not uncommon for parents to vow a child to religion. Such a vow put no obligation on the child, but the parents were bound by it to give the child the opportunity of entering religion if he desired to do so. There are also instances of communities who have jointly taken a vow to observe a certain day as a fast or a feast. Thus the Romans, in the year 1703, vowed to observe as a fast day the vigil of the feast of the Purification of the Blessed Virgin Mary in thanksgiving for being preserved from an earthquake. The successors of those who took such a vow are bound to fulfil it, much in the same way as they are bound to pay interest on the National Debt. Their predecessors had the power to bind themselves and their successors, for the community remains the same moral entity.
We saw above that the matter of a vow must be something which is physically and morally possible. It may happen that he who took the vow may be able to fulfil it in part only and not wholly. He will be bound to do at least this when the matter is capable of being divided and is usually so treated, for the obligation of the vow then falls on the whole and on its several parts. Otherwise he will not be bound, nor will he be bound to do something which was a mere accessory of the substance of the vow, even if it be possible. And so one who should vow to fast for a week, if he found this impossible, would not be excused from fasting on the days that he could do so. But if he had vowed to build and decorate a church and afterwards found this to be impossible, he would not be bound to build a portion of it, nor to decorate some other church.
4. A vow may cease to bind for intrinsic or for extrinsic reasons. It will cease to bind intrinsically if the matter cease to be a better good or become impossible. Thus if a young man had vowed to enter religion, but his parents afterward became dependent on him so that he could not leave them without a violation of duty, his vow would cease to bind as long as the same conditions lasted. Or if a wealthy man vowed to spend a considerable sum of money in charities every year, if he became poor his vow would no longer bind him. And generally a vow, like any other promise, will cease to bind if circumstances supervene which at the outset would have prevented the vow from being taken. A vow ceases to bind extrinsically if it is annulled or dispensed or commuted. We will treat of these extrinsic causes of the cessation of a vow in the following paragraphs.
5. The annulment of a vow may be direct or indirect. By direct annulment the obligation of a vow is altogether removed by one who has authority over the will of the person who took the vow. For those who are placed in such a state of dependency on their superiors cannot undertake any absolute obligation; they can only bind themselves conditionally, supposing that their superior consents. If he does not consent, the obligation falls to the ground (Can. 1312).
By indirect annulment the obligation is suspended by one who has authority over the matter of the vow. For it is not just that an obligation should be undertaken which interferes with the rights of someone else. And so if a servant took a vow to hear Mass every morning, her mistress, whose rights are infringed thereby, might suspend the obligation of the vow as long as the servant remains with her, for no service is rendered to God by injuring a fellow- creature. When the term of service expired, the obligation of the vow would revive.
The annulment of a vow will be valid even when it is done without just cause and against the will of the subject, for even then a condition is wanting on which the validity of the vow depended. It will be lawful as well, if there be a reasonable cause, which need not necessarily be a very serious one.
All religious superiors can directly annul the vows taken by their subjects after their religious profession, and indirectly the vows taken by them previously, as far as they prejudice religious discipline or the rights of superiors. The vows of poverty, chastity, and obedience the essential vows of religion by the taking of which a person becomes a religious cannot be annulled; for it is only by them that religious superiors receive their authority over the wills of their subjects, and authority is powerless against its own source.
Parents can directly annul the vows of their children taken before the age of puberty, when children become independent of the authority of their parents in matters relating to the service of God. They can indirectly annul the vows of their adult children as long as they continue to live with them.
A husband can directly annul the vows of his wife taken after marriage, and indirectly those taken previously. A wife can annul the vows of her husband only indirectly, as far as they prejudice her rights.
6. A dispensation from a vow is a remission of the vow made in the name of God for a just cause by one who has spiritual jurisdiction in the external forum. The Church has always understood that the power to dispense vows is contained in the authority granted by our Lord to his Church. [18] She exercises this power in the name of God, not arbitrarily, but for just cause, which is required not merely for the lawfulness, but also for the validity of the act. As examples of a just and sufficient cause theologians give the following: the public good or the private spiritual advantage of him who is dispensed; unusual difficulty in the observance of the vow; the fact that the vow was taken without sufficient deliberation or in immature age.
The power of dispensing vows belongs to the public authority granted by God to the Church in order that she may rule and legislate for her people. It does not belong to the power of remitting sins which is exercised in the sacrament of Penance. All ecclesiastical prelates, then, who exercise jurisdiction in the external forum in their own name can dispense from vows, except in so far as their authority has been limited by a superior. Other ecclesiastics can only dispense from vows by delegated authority and according to its terms and conditions.
(a) The Pope can for just cause dispense any of the faithful from any vow.
(b) For a good reason and provided that the dispensation does not injure the rights of others, local Ordinaries can dispense their subjects and also strangers from private vows which are not reserved to the Holy See. The only private vows which are now reserved to the Holy See are a vow of perfect and perpetual chastity and a vow of entering into a religion of solemn vows, if they were taken absolutely and after the completion of the eighteenth year of age (Can. 1309, 1313).
(c) Prelates of Religious Orders have quasi- episcopal jurisdiction over their own subjects, and as a general rule have the same power over these as a Bishop has over his subjects. Besides, they receive by their privileges ample delegated authority to dispense not only their own subjects, but seculars and lay people as well. The privileges granted to the respective Orders should be consulted concerning this special authority and the conditions of its exercise.
(d) Parish priests and confessors have no jurisdiction in the external forum, and can only dispense from vows by delegated authority. They should consult their faculties to know what powers they have received from their Bishop.
When a vow has been made in favour of a third person and accepted by him, such a vow cannot lawfully be dispensed without his consent, otherwise justice would be violated. And so, although a Bishop has power to dispense members of diocesan congregations from the vows of religion, he cannot do this lawfully without the knowledge and consent of the superiors of the Order. [19] The religious vows of congregations which have in any way been approved by the Holy See are reserved to the Pope.
The vow of chastity imposes a serious and arduous obligation which should not be undertaken without mature deliberation and knowledge of one's own strength. A confessor should be slow to approve of such a vow being taken, especially if it is to be perpetual. When there is just cause for a dispensation being granted, it is the practice of the Church to commute, rather than altogether to dispense, a perpetual vow of chastity. This practice, though not of obligation, should be adhered to by those who have authority to dispense from this vow. It may be commuted into the obligation of receiving the sacraments at least once a month, saying the rosary everyday, or other works of piety.
7. A vow is commuted when another good work to be performed under the same obligation is substituted for that which was promised.
All who can dispense from a vow can also commute it, for the less is contained in the greater. It is obvious, however, that it must not be done to the injury of a third person. The person who is under vow may commute it into some good work which is evidently better than what was promised, for, as the rule of canon law has it, he does not violate his promise who changes it into something better (Can. 1314). He may also commute his vow into something that is of equal merit; but to avoid the danger of self-deception, and because it is not easy to say when good works are of equal merit, it is better to have recourse to one's confessor. Special authority is required to commute a vow into something which is less good, for such a commutation is a sort of dispensation from the vow. In order that commutation into something which is less good may be lawful, a just cause is required, though less than is required for dispensation; probably, however, if there be no just cause the commutation will be valid, but the obligation will remain of supplying the deficiency as in human transactions. No special cause is required for commuting a vow into something which is evidently better; greater readiness in fulfilling one's obligation will be a sufficient cause for commuting a vow into something of equal merit.
One whose vow has been commuted is always at liberty to return if he pleases to the observance of his vow, for the commutation was made in his favour, and he may renounce it.
When a vow has been commuted by competent authority its obligation is extinguished or transferred to the new work, and it does not revive even if the performance of the substituted good work is found to be impossible. On the contrary, when the substitution has been made by private authority, in case the performance of the substituted work is impossible, the original obligation revives.
PART III
THE THIRD COMMANDMENT
THE Third Commandment is: " Remember that them keep holy the sabbath day." [20] This precept of the Old Law is partly ceremonial, and in so far it has been abrogated by the preaching of the Gospel, and partly it belongs to the law of nature, which binds at all times and in all places. The sabbath, the day of rest, 'was the last day of; the week under the Old Dispensation, and the manner of observing it was strictly regulated. The natural law prescribes that we should occasionally offer to God an external and public worship, inasmuch as he is the Creator of body and soul and the Author of human society. The necessity, too, of keeping up within us a lively sense of God's existence and of our dependence on him compels us to give outward expression to our religious instincts, otherwise they will quickly evaporate. The Christian Church, using the power given to her by her divine Founder, and asserting her independence of the yoke of Jewish legalism, determined the natural law in this matter by assigning a definite time and mode for its observance. Instead of the last day of the week she chose the first, the day on which Christ rose from the dead, and the day on which the Holy Spirit came down on the Apostles. This she called the Lord's Day, and commanded her children to keep it holy by hearing Mass and resting from servile work.
CHAPTER I
ON HEARING MASS OF PRECEPT
i. ECCLESIASTICAL laws of the early Christian centuries show us that the precept of hearing Mass on Sundays dates from the earliest times. This obligation is grave, for Innocent XI condemned a proposition [21] which asserted the contrary. Besides hearing Mass it is a laudable thing to spend some time on Sundays in other acts of piety and prayer, as all good Catholics do. Still there is no other positive obligation besides that of hearing Mass which binds under sin. It is not a sin, then, to omit evening service or Benediction of the Blessed Sacrament; and when it is impossible to hear Mass, there is no strict obligation to have private devotions instead.
In order to fulfil the precept of hearing Mass according to the mind of the Church, the whole of Mass must be heard, in the proper place, while bodily present where it is being celebrated, with devout attention. Something must be said on each of these points.
2. The whole of Mass must be heard, so that at least a venial sin is committed if one be wilfully absent during any portion of it. The sin will not be grave unless a notable part of the Mass be missed. What is a notable part depends partly on its importance, partly on the length or quantity. Inasmuch as the essence of the Mass in all probability consists in the act of consecration, to be voluntarily absent during the consecration would be mortally sinful; one would not have heard Mass. Certainly it is a grave sin to be wilfully absent during both the consecration and the communion. Up to the offertory is called the Mass of the catechumens, and as this forms a kind of introduction to the Mass proper, to come in only at the offertory probably does not amount to more than a venial sin. We may take it as a general rule that a mortal sin is committed if a third part of Mass be missed, and less is sufficient for a grave sin when any action of special importance in the sacrifice is in the portion missed. In case of involuntary absence during a notable portion of Mass there will be an obligation of making it up by hearing that portion of another Mass if there be an opportunity of doing so on the same day. The consecration, however, and the communion must always be in the same Mass. There is no obligation to make up small portions of the Mass which have not been heard.
A proposition condemned by Innocent XI falsely asserted that one might satisfy the precept of hearing Mass by being present while two portions were being said by different priests. [22]
3. In order to satisfy the precept, Mass must be heard in the proper place. By a decree S.R.C. (January 23, 1899) the faithful may satisfy the precept by hearing Mass in any public church or public or semi-public oratory. A semi-public oratory is there defined as one which by the authority of the Ordinary is erected in a place which is not absolutely public, but more or less private, for the use not of all the faithful, nor of a particular person or family, but of a community or society of persons. No one besides those who are mentioned in the indult can satisfy the precept by hearing Mass in a strictly private oratory, which by an indult of the Holy See is erected in a private house for the use of a particular person or family (Can. 1249).
As Benedict XIV teaches, Bishops cannot compel the faithful to hear Mass in their parish churches; they have no power to abrogate a universal law and custom of the Church or a decree of the Sacred Congregatibn of Rites. The liberty, however, of hearing Mass in any place of worship except strictly private oratories, does not exempt the faithful from contributing to the support of their own pastors according to their means.
4. One would not hear Mass so as to satisfy the precept if he were stationed apart at a considerable distance from the place where it was being celebrated, even though he might be able to see and hear what was being done. He must be morally present so as to form one of those who are together hearing and offering up the Holy Sacrifice. It is not necessary that he should be able to see the priest or the altar, nor even to hear what is said. It will be sufficient if he follows the principal parts of the Mass. So that a person could hear Mass if he were stationed in a side chapel of a great cathedral while Mass was being said at the high altar, though he might not be able to hear or see anything that was going on. Similarly, if Mass is being said for a large army or crowd of people, those on the outskirts of the multitude may hear Mass, though they are at a great distance from the altar. If the church is full and large numbers cannot get inside, still these latter may hear Mass being celebrated inside. On the other hand, if while Mass is being said in a church, someone were posted on the opposite side of a wide street or square, he could not hear the Mass so as to satisfy the precept, though he might be able to see what was going on through the open door.
5. It is necessary to have the intention of hearing Mass, and it must be done with the requisite attention. The Church prescribes a human action to be performed in the service of God, and so there must be the necessary constituents of a human act. The act, then, must be voluntary; there must be the wish or the intention to hear Mass. So that one who was forced to be present against his will, or who came to church merely as a companion to another, or to hear the music, would not hear Mass.
Attention is an act of the mind by which we advert to what is going on. This is attention in the proper sense of the term, and is called internal to distinguish it from external attention, which is the avoidance of any external action which is incompatible with internal attention. Thus if one is distracted during Mass and thinking of other things, but does no external action which is incompatible with hearing Mass, he has external, but not internal attention. If during Mass he engages in a prolonged conversation with a neighbour, or reads a profane book, or paints, he has not even external attention.
The Church commands at least external attention while Mass is being said, otherwise the precept will not be fulfilled. All, too, admit that voluntary distractions during Mass are venially sinful, just as they are during ordinary prayer. It is a disputed point among theologians whether internal attention is also necessary for the observance of the Church's law. The more common opinion holds that it is. The contrary, however, is probable, for actual attention does not seem to be an essential element of prayer; the form of Extreme Unction, which is a prayer, is certainly valid even if said by a priest without internal attention. The Church's law, therefore, which directly provides for external decorum in the service of God, would seem to be fulfilled, provided that there is at least external attention while hearing Mass. This opinion does not foster the careless hearing of Mass, but it does serve to relieve the scrupulous conscience from needless anxieties.
6. We have here to do with a positive precept, and any serious inconvenience or loss, spiritual or temporal, affecting one's self or one's neighbour, which would follow from hearing Mass, will excuse the faithful from fulfilling the obligation. So that the sick, the convalescent who could not venture out of doors without danger, those who have to take care of the sick, mothers of families who have little children to attend to, those who live at such a distance that it would take them more than an hour to walk to church, all these are excused from hearing Mass regularly.
CHAPTER II
ON SERVILE WORK
i. IN order that all, and especially the poor, may have the opportunity of fulfilling their religious duties, the Church has forbidden servile work to be done on Sunday. Servile work is the rougher and harder sort of manual labour which is done by common workmen and labourers, and which used to be done by slaves. It comprises ploughing, digging, building, sewing, and similar occupations. It is distinguished from liberal and from mixed work. Liberal work is done mainly by the intellect, and comprises writing, studying, painting, and so forth. Mixed work comprises a class of occupations which are neither exclusively liberal nor servile, but which are done indifferently by all conditions of men. In this class are hunting, fishing, travelling, and similar occupations. Of these only servile work is forbidden on Sundays, and in determining what is servile work, and therefore forbidden, we must consider not only the nature of the work itself, but also the way in which it is done, the light in which it is commonly regarded, and other circumstances. Thus it is usually held that although the rougher work of the sculptor is servile and unlawful, the more delicate is liberal and may be done on a Sunday. Similarly, fishing with rod and line is not unlawful, but going out to sea with a fishing-smack and plying the trade in the ordinary working- day way is forbidden. In the same way one who lives by photography should not ply his trade on a Sunday, but it would not be wrong for an amateur to do the same work on that day by way of recreation and amusement.
2. This part of the precept of keeping the Sunday holy also binds under pain of grave sin. If, however, the matter be light, the doing of a little servile work on a Sunday will be only a venial sin, and none at all if there be good reason for it. According to the common opinion, it would be necessary to work for well over two hours at something which is forbidden in order to commit a grave sin. Still longer time would be required for a mortal sin in doing servile work of a lighter kind, which had for it some sort of excuse on the ground that it helps on the cause of religion and charity. Making rosary beads or scapulars belongs to this category.
3. Public trading is also forbidden on Sundays, as well as judicial proceedings in the exercise of contentious jurisdiction, and the solemn and public taking of oaths (Can. 1248).
English municipal law goes farther than the law of the Church in its provisions for the due observance of the Lord's Day. Thus not only is Sunday a dies non for the sitting of courts or the meeting of public bodies, but contracts such as are within the ordinary calling of tradesmen, workmen, labourers, or other persons of the same sort, made and completed on Sunday, are void, and abstention from work and even from play is required by a series of statutes. [23]
Although these provisions of the civil authority do not impose an obligation in conscience under pain of sin, yet indirectly they have caused the Sunday to be observed among us with greater strictness than is absolutely required by ecclesiastical law.
4. As we saw with regard to the hearing of Mass, so in this matter too, if the precept cannot be observed without serious inconvenience, it ceases to bind. And so, work in foundries or in agriculture which cannot be stopped without grave inconvenience and loss may be done on Sundays. Work, too, in the direct service of religion, or necessary works of charity connected with the care and nursing of the sick, or the burying of the dead, are not forbidden. Custom permits of the sweeping of the house and the cooking of meals, and certain other more or less necessary occupations on Sunday. Finally, ecclesiastical authority can, for good reason, dispense in the observance of this law. Not only Bishops, but priests who have the cure of souls, have discretionary power to give dispensations in particular cases. [24]
PART IV
THE FOURTH COMMANDMENT
THE Fourth Commandment is: " Honour thy father and thy mother." [25] By this Commandment not only are children bound to be dutiful in their conduct towards their parents, but these latter are also implicitly bidden to perform all the obligations which nature imposes on them towards their offspring, inasmuch as rights imply corresponding obligations. The mutual obligations of parent and child may be extended to all who hold an analogous position towards each other, and so under this heading theologians ['commonly treat of the mutual obligations of other relations, and of superiors and subjects, both ecclesiastical and civil.
CHAPTER I
ON THE DUTIES OF CHILDREN TOWARDS PARENTS
i. CHILDREN owe their existence to their parents, and for many years, until they come to maturity, they stand in need of their constant care and direction. It is but right, therefore, that children should love, reverence, and obey the authors of their being and their natural guardians. This is due to parents from their children on account of the special relationship in which they stand towards them, and so, as St Thomas teaches, [26] there must be a special virtue which regulates the mutual obligations of parent and child. This virtue is called piety in Catholic theology, and it regulates not only the mutual offices of parents and children towards each other, but our duty to other near relatives, and to our country and fellow-countrymen. It is a virtue similar to charity, but it binds more strictly, so that while charity prescribes a general love for all mankind, piety obliges us to a special love for those who are near to us, and for the country in which we were born. [27]
If, then, hatred or want of love for our fellow- men is of itself a grave sin, as we saw above, it will be still easier to commit a grave sin by want of proper affection for our parents. To show dislike of them or contempt for them, or to show that we are ashamed of them, will be a grave sin if our unfilial conduct is likely to cause them serious grief. In the same way, serious want of reverence and respect shown in word or action is grievously sinful. To strike a parent, or even to threaten to do so, will usually be mortally sinful.
By the duty of obedience children are bound to obey their parents in all that belongs to their bringing up and to domestic discipline. Sins of disobedience will be grievous if the matter is sufficiently important and the command is given with the serious intention of imposing a strict obligation.
Children are only bound to support their parents when they cannot support themselves, for whatever property a child may have or may acquire belongs exclusively to him. Among the working classes it is usual for elder brothers or sisters who have begun to work to throw their earnings into the common stock for the support of the family until they leave home and get an establishment of their own. This is quite as it should be, for the money which they earn is scarcely sufficient to pay for their own keep; or if it does more, there are little brothers and sisters or aged parents who are dependent on them, and whom they are bound to help to support.
2. The other obligations of children towards their parents are permanent and last as long as life, but that of obedience ceases with their emancipation. In England children are emancipated from the control of their parents when they become twenty- one years of age, when they marry, or when they enter into religion; for as soon as they have attained the age of puberty they are independent of their parents in what concerns the salvation of their souls and the choice of a state of life.
A minor may also enlist as a soldier without his parents' consent according to the English law.
Moreover, when a child has attained years of discretion, which he is considered to do at sixteen, it would seem that he may lawfully depart from home and provide for himself, if it be for his advantage. This, of course, supposes that the necessities of his parents or of his brothers and sisters do not require that he should remain at home. If a youth has acted in this way, and it appears to be for his benefit, English courts will not compel him to return home, and it was the common teaching of the classical moralists that in acting thus a youth would do nothing wrong.[28]
CHAPTER II
THE DUTIES OF PARENTS TO CHILDREN
I. NATURE herself teaches parents their duties towards the offspring that they have brought into the world, and which stands in need of their loving care for many years before it arrives at maturity, so as to be able to lead an independent life.
Parents, then, are bound first and, foremost to love their,, children with that special affection which belongs to the virtue of piety. They will commit grievous sin if they are indifferent to their children's welfare, if they deliberately curse them, if they show great and foolish preference for one child over others to the serious discontent of the latter.
They are bound to support their children until these can support themselves. Even before the child's birth, the mother must take care not to risk its life or natural development. After birth she is bound at least under venial sin to nourish it with her own milk, unless some good reason excuse her. Then there is the obligation of providing sufficiently for the child's maintenance, according to its position in life, by a prudent administration of the family property, or by earning money and saving what is necessary for the purpose. Grave sin is committed by a father who will not work, or who squanders his wages in drink or gambling, so that wife and children are deprived of proper support. Parents are bound to instruct their children in all that is required to enable them to lead a good Christian life; they must warn them of dangers into which their inexperience would lead them, and correct them when they do wrong. Above all, they must be careful to give them good example by leading a good Catholic life themselves, and by never being a source of scandal to their children in word or deed. They must watch to see with what companions their children associate, what they read, and what places they frequent.
The Elementary Education Act, 1876, declared it to be the duty of the parent of every child between the ages of five and fourteen years to cause it to receive efficient elementary instruction in reading, writing, and arithmetic; and penalties were imposed on parents who neglected this duty. As such an education can in most cases only be given in a school, it becomes a practical moral question of great importance as to what sort of school Catholic parents should select. The education of their children belongs primarily by the law of nature to the parents, and if they entrust a portion of their task to others they are bound to select such as can and will educate them according to Catholic principles. The Church, too, has received a divine commission to teach, and those who by baptism have become subject to her authority are obliged to be guided by her directions in this all-important matter. The Church condemns all non- Catholic schools, whether they be heretical and schismatical or secularist, and she declares that as a general rule no Catholic parent can send his young children to such schools for educational purposes without exposing their faith and morals to serious risk, and therefore committing a grave sin. A Catholic child, if educated away from home, should be placed in a Catholic school, under Catholic masters or mistresses. Sad experience in many different countries has shown how necessary this is for the preservation of the Catholic faith. If, however, there is no suitable Catholic school to which children can be sent, they may be sent to a non- Catholic school provided that the proximate danger can be made remote by using the proper means, and provided that the parents see to the religious instruction of their children. In many countries, as in England, the Bishops have reserved to themselves the decision as to whether in any particular case these conditions are fulfilled. A priest, therefore, should not take it upon himself to deny the sacraments to parents who send their children to a non- Catholic school; the case should be sent to the Bishop (cf. Can. 1113, 1374).
2. What has just been said applies specially to primary and secondary schools, for the question about non- Catholic universities is somewhat different. The Church would indeed wish that all who desire it might be able to obtain a higher education in a Catholic university. As this, however, is impossible in England, the Holy See has permitted Catholic parents to send their sons to Oxford or Cambridge on account of the grave necessity, and because when a young man has already received a sound secondary education among Catholic surroundings, if there is any character in him, he can be trusted to hold his own. Suitable safeguards, however, are prescribed for the young men who avail themselves of this permission, among which is the obligation of attending Catholic lectures which are provided by the Bishops.
3. In order that parents may fulfil their obligations towards their children, the law of nature itself confers on them the requisite authority and the right to look after their children until these can provide for themselves. It would, then, be against natural justice if children were removed from their parents' control or if there were any interference with the parental authority as long as it is rightly exercised.[29] Although parental authority is derived from the law of nature, yet its precise extent and its limits are not defined by natural law; this is left to positive law, ecclesiastical and civil.
Parental authority extends to the person and to the property of a child.
I. (a) The right to the custody of the person of a child belongs to the father during his life, and after his death to the mother. Until emancipation at the age of twenty- one or until marriage a father can enforce his right by writ of habeas corpus.
An action also lies for loss of services against anyone who entices a minor away from the custody of his parents. Moreover, abduction of a girl under sixteen or under eighteen for immoral purposes is rigorously punished by English criminal law.
However, if a child who has reached years of discretion chooses to depart from home, our courts will not compel him to return, if the departure seems to be for his benefit.
(b) A parent or one who is in loco parentis may moderately chastise a minor who has been guilty of fault.
(c) The consent of the parent is required for the lawfulness of a minor's marriage.
ii. The parent as such has no rights over the property of his child according to English law. If, however, no other guardian has been lawfully appointed, the father will be regarded as the guardian of his child, and he will be compelled to administer its property for its benefit, and he can be compelled to render an account of his administration. Gifts which have been freely made by children to their parents are considered valid by our law, but there is a presumption against their being free gifts, unless this is proved.
4. The duties of parents extend to illegitimate as well as to legitimate children. The duty of caring for an illegitimate child falls primarily on the mother, who, before a year has elapsed from its birth, may obtain from the magistrates a maintenance order against the reputed father, providing for the child's support and education at his expense.
A husband is bound by our law to support the children of his wife by a former husband as well as his own.
CHAPTER III
THE DUTIES OF RELATIVES AND GUARDIANS
I. WHAT has been said concerning the mutual obligations of parent and child applies proportionately to those of other near relations. These are also bound to love each other, not only out of charity, but out of piety, and they are under a grave obligation of rendering each other assistance not only in extreme but also in grave necessity. English law only enforces on relatives the obligation of maintaining a poor relation who is unable to support himself when he would otherwise be chargeable to the parish where he happens to be. Those who are so compellable are the wife and husband, the father and grandfather, the mother and grandmother or the children of the pauper. The law of charity and piety obliges more frequently and extends further.
2. Guardians are sometimes appointed according to law to take care of the person and property of minors.
Parents are legally the guardians by nature and nurture of the persons of their children until these reach the age of twenty-one, as we saw above.
Of the many kinds of guardians recognized by English law the following are still of practical importance: Statutory guardians, guardians appointed by the high court and guardians appointed for special purposes.
(a) Statutory guardians. By a statute of Charles II a father may appoint by deed or by will a guardian or guardians to have the custody of his infant child, and to manage its property until it reach the age of twenty-one. The Guardianship of Infants Act, 1886, made the mother on the death of the father the guardian of her infant children, either alone if no guardian was appointed by him, or jointly with the guardian or guardians appointed by the father. The mother can also by deed or will appoint one or more guardians to act after her death and that of the father. She may also appoint a guardian to act provisionally after her death jointly with the father.
(b) Guardians appointed by the High Court. An infant may be made a ward of court by settling a sum of money on it and bringing a suit for its administration. This may be done even though the father be still alive, or a testamentary guardian has been appointed. Where the court is satisfied that it would be for the good of the ward, it may remove a guardian from his office and appoint another in his place, even though the infant be not a ward of court.
(c) Guardians for special purposes are sometimes appointed to consent to an infant's marriage, or for some other object under different statutes.
A guardian has a right to the custody of the person of his ward, and in general he exercises the rights, and is under the obligations of a father towards his ward. He administers the ward's property, and must render an account of his administration.
No one may marry a ward of court or remove it out of the jurisdiction without the court's permission.
The wishes of the father, as a general rule, according to English law, must be followed with regard to the religion in which a ward is educated by his guardian.
CHAPTER IV
THE OBLIGATIONS OF HUSBAND AND WIFE
BESIDES the obligations which are treated of under Marriage, and the rights and obligations arising out of property belonging to married people, which are discussed under the Seventh Commandment, there are certain obligations arising from marriage inasmuch as it places the husband in a ..position of authority and the wife in one of subjection. A word must here be said concerning their mutual obligations in this respect.
The wife becomes by marriage subject to her husband, and owes him love, reverence, and obedience, as to a superior. " Let women be subject to their husbands as to the Lord," says St Paul. " Because the husband is the head of the wife: as Christ is the head of the Church. . . . Therefore as the Church is subject to Christ, so also let wives be to their husbands in all things." [30]
However, a wife is not the slave or servant of her husband, but rather his companion, and so, though subject and bound to obey in all that relates to family life and conduct, yet she should be treated with love, consideration, and deference, and consulted in what concerns the family affairs.
The wife will commit grave sin if she shows great contempt for her husband, habitually neglects his commands, and arrogates his authority to herself without just cause.
The husband is bound to support his wife and family according to English law, who therefore have a claim in justice upon him as well as in piety. The husband sins grievously by treating his wife with habitual harshness and neglect, and by not providing for her necessities and those of her children. In this latter case the wife would not be guilty of sin if she took from her husband without his knowledge what was necessary for the decent support of the family.
CHAPTER V
THE DUTIES OF MASTERS AND SERVANTS
I. SERVANT is here understood in a wide sense so as to comprise both domestic servants and workmen who work for a master. The relation in modern times arises out of a contract freely entered into by the parties, and it is less intimate than that which in ancient times subsisted between the lord and the slave or serf. In spite of this, however, the nexus of cash payment is not the only bond between master and servant. By the very fact that one enters into the service of another, the latter becomes his superior, assumes the duty of caring for him, and in fitting proportion he acquires a claim to those marks of honour and reverence which are due to all who exercise authority over us. [31]
2. Servants, then, owe to their masters reverence, fidelity, and obedience.
(a) They are bound to show their masters due honour and respect, and grave sin may be committed by displaying open contempt for them, ridiculing them, and making known their secret defects. " Whosoever are servants under the yoke, let them count their masters worthy of all honour." [32]
(b) They must faithfully discharge the duties imposed on them by the nature of their charge. If they waste the time which belongs to their master, wilfully neglect their duties, damage or destroy the property of their master by not taking ordinary care of it, they sin against justice and are bound to restitution. If special charge of what belongs to the master is committed to a servant, he will be obliged to guard it against damage or loss caused by others, and he will sin against justice and be bound to make restitution if he fail to do so. Where no such special charge has been laid on a servant, he will only be bound in charity, not in justice, to protect the property of his master.
(c) A workman who does not live in his master's house will be bound to obey his master's commands in all that relates to the work that he undertook to do.
A domestic servant is a member of the master's household, and the obligation of obedience extends to what concerns domestic discipline, as well as to the special work which was expressly undertaken by the contract. " Servants," says St Paul, " be obedient to them that are your lords according to the flesh, with fear and trembling in the simplicity of your heart, as to Christ: not serving to the eye, as it were pleasing men, but as the servants of Christ, doing the will of God from the heart, with a good will serving, as to the Lord, and not to men." [33] Still one who contracted to be a cook would not be bound to obey if ordered to do housemaid's work; neither explicitly nor implicitly was such an obligation undertaken when the contract was entered into.
These duties of a servant toward his master are touched upon by Leo XIII in his encyclical letter on the condition of the working classes, May 15, 1891. " Thus religion teaches the labouring man and the artisan to carry out honestly and fairly all equitable agreements freely entered into; never to injure the property, nor to outrage the person, of an employer; never to resort to violence in defending their own cause, nor to engage in riot and disorder; and to have nothing to do with men of evil principles, who work upon the people with artful promises, and excite foolish hopes which usually end in useless regrets, followed by insolvency."
3. The duties are not all on one side and the rights on the other in the relation of master and servant. Each has his rights and each his duties, and their good and the good of the community largely depends on both sides faithfully and loyally fulfilling their mutual obligations.
(a) A master must treat his servant not as a mere instrument of production, but as a fellow- Christian: " Religion teaches the wealthy owner and the employer that their work-people are not to be accounted their bondsmen; that in every man they must respect his dignity and worth as a man and as a Christian; that labour is not a thing to be ashamed of if we lend ear to right reason and to Christian philosophy, but is an honourable calling, enabling a man to sustain his life in a way upright and creditable; and that it is shameful and inhuman to treat men like chattels to make money by, or to look upon them merely as so much muscle or physical power." [34]
(b) " Again, therefore, the Church teaches that, as religion and things spiritual and mental are among the working man's main concerns, the employer is bound to see that the worker has time for his religious duties; that he be not exposed to corrupting influences and dangerous occasions, and that he be not led away to neglect his home and family or to squander his earnings." [35] The general obligation of fraternal correction will more frequently impose a duty on the master of admonishing and correcting a domestic servant than an ordinary workman of his.
(c) " Furthermore, the employer must never tax his workpeople beyond their strength or employ them in work unsuited to their age or sex." [36]
According to English common law, the contract between employer and employed involves on the part of the former the duty of taking reasonable care to provide appliances and to maintain them in a proper condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk. This common law liability has been further increased and defined by the Employers' Liability Acts and Workmen's Compensation Acts, which, however, will as a rule only affect the conscience after the sentence of a competent authority, except in so far as there was grave culpable negligence on the part of the employer.
(d) The employer's " great and principal duty is to give everyone a fair wage. Doubtless before deciding whether wages are adequate, many things have to be considered; but wealthy owners and all masters of labour should be mindful of this, that to exercise pressure upon the indigent and the destitute for the sake of gain, and to gather one's profit out of the need of another, are condemned by all laws, human and divine. To defraud anyone of wages that are his due is a crime which cries to the avenging anger of heaven. Behold, the hire of the labourers . . . which by fraud hath been kept back by you, crieth aloud; and the cry of them hath entered into the ears of the Lord of Sabaoth. [37]
" Lastly, the rich must religiously refrain from cutting down the workmen's earnings, whether by force, by fraud, or by usurious dealing; and with all the greater reason because the labouring man is, as a rule, weak and unprotected, and because his slender means should in proportion to their scantiness be accounted sacred. Were these precepts carefully obeyed and followed out, would they not be sufficient of themselves to keep under all strife and all its causes?" [38]
Sums must not be deducted from a servant's wages on account of temporary illness, though by English law a master is not bound to provide medical aid or medicines for a sick servant, though he is for an apprentice. If he sends for medical assistance for a servant whilst under his roof, he is liable.
In the same encyclical of Leo XIII a general rule is laid down for deciding what a fair wage is: " Let it, then, be taken for granted that workman and employer should, as a rule, make free agreements, and in particular should agree freely as to the wages; nevertheless, there underlies a dictate of nature more imperious and more ancient than any bargain between man and man namely, that the remuneration must be sufficient to support the wage- earner in reasonable and frugal comfort. If through necessity or fear of a worse evil, the workman accept harder conditions, because an employer or contractor will afford him no better, he is made the victim of force and injustice."
The workman, then, has a right to a living wage, and the employer who grows rich by sweating his work-people commits a sin against justice and is bound to make restitution of his ill-gotten wealth. If, however, the employer gives as good wages as he can afford, or as good as the labour is worth, he will be excused from any sin against justice; occasionally in bad times he may be bound out of charity to give employment without profit to himself or even at a personal loss.
4. It is sometimes the duty of the State to interpose its authority in order to settle labour questions. As Leo XIII says: " If by a strike, or other combination of workmen, there should be imminent danger of disturbance to the public peace; or if circumstances were such that among the labouring population the ties of family life were relaxed; if religion were found to suffer through the operatives not having time and opportunity afforded them to practise its duties; if in workshops and factories there were dangers to morals through the mixing of the sexes or from other harmful occasions of evil; or if employers laid burdens upon their workmen which were unjust, or degraded them with conditions repugnant to their dignity as human beings; finally, if health were endangered by excessive labour or by work unsuited to sex or age in such cases there can be no question but that, within certain limits, it would be right to invoke the aid and authority of the law." A little further on Pope Leo again refers to strikes: " When work-people have recourse to a strike, it is frequently because the hours of labour are too long, or the work too hard, or because they consider their wages insufficient. The grave inconvenience of this not uncommon occurrence should be obviated by public remedial measures, for such paralyzing of labour not only affects the masters and their work-people alike, but is extremely injurious to trade and to the general interests of the public; moreover, on such occasions, violence and disorder are generally not far distant, and thus it frequently happens that the public peace is imperilled. The laws should forestall and prevent such troubles from arising; they should lend their influence and authority to the removal in good time of the causes which lead to conflicts between employers and employed." [39]
It is unlawful for workmen to strike when by so doing they violate a just contract which they have freely entered into, or when they cannot hope to gain anything substantial, so that there is no adequate compensation for the sufferings, losses, and risks which generally accompany a strike. It is wrong to use violence and threats to compel other workmen to strike against their will, or to prevent them accepting work if they desire to do so.
If, however, other means of obtaining redress or of securing their rights have failed, it is not wrong for workmen to strike in order to obtain a diminution of excessive hours of toil, or a just wage, or other just, reasonable, and adequate advantage.
5. The contract of hiring may be terminated by mutual consent of the parties concerned, or for just cause by one of the parties, provided that the laws and customs which regulate the matter be duly observed. Generally speaking, a month's notice, or a month's wages, is required by English /law to determine a general hiring of a domestic servant. If, however, the servant is incompetent to do what he undertook, is habitually disobedient, or is guilty of immorality, or unlawfully absents himself from his work, he may be dismissed without notice.
CHAPTER VI
THE DUTIES OF MASTERS AND SCHOLARS
1. SCHOOLMASTERS and schoolmistresses are put in the place of the parents to educate children in letters and good conduct. They therefore to a certain extent share the obligations and the rights of parents. Furthermore, they are bound in justice by contract to fulfil the special duties which are annexed to their office of training the children committed to their charge. 2. Pupils are bound to love, reverence, and obey their masters and mistresses in all things that pertain to their education in letters and morals. However, in estimating the gravity of sins of disobedience toward masters and mistresses, we must consider not only whether the matter be grave and there be a serious intention of imposing an obligation, as in other cases of disobedience, but also whether the authority of the master or mistress enables them to give a precept which binds under pain of grave sin. Such ample authority is usually not committed to inferior masters and mistresses.
CHAPTER VII
THE DUTIES OF ECCLESIASTICAL AND CIVIL RULERS
AND THEIR SUBJECTS
I. ALL those to whom the care of souls is committed in the Church of God are bound by divine precept and by the very nature of their office to fulfil the duties of their charge. [40] If they fail in their duty, they sin not only against charity and obedience, but also against justice; for everyone who voluntarily undertakes an office implicitly thereby undertakes to discharge the duties annexed to it. In general, therefore, ecclesiastical superiors are bound to love, watch over, and instruct by word and by example those committed to their charge. The special obligations of each one depend on the office which he holds, and are treated of elsewhere.
2. Subjects also owe to their ecclesiastical superiors love, reverence, obedience in all that belongs to their office, and temporal support. This is obvious from what has already been said, and it is inculcated in several places of Holy Writ. [41]
3. It has been the constant teaching of the Catholic Church that all public and legitimate authority is of divine right, in the sense that God is the Author of man's nature by which he is a social animal, formed to live in society, which necessarily implies a distinction of rulers and ruled. The rulers may, indeed, be designated in various ways, their power may be more or less absolute; this power may be in the hands of one or of many, but it is derived from God, the Author of man's nature and of human society. This is the teaching of St. Paul: " Let every soul be subject to higher powers; for there is no power but from God; and those that are, are ordained of God. Therefore he that resisteth the power, resisteth the ordinance of God. And they that resist, purchase to themselves damnation." [42] As Leo XIII says in his encyclical letter, Diuturnum, June 29, 1881, this doctrine is taught in many passages of Holy Writ, and has been constantly inculcated by the Catholic Church.
In English-speaking countries the people have a large share in the election of their rulers, and such an important duty should be faithfully and religiously fulfilled. There may easily be a moral obligation to vote at elections in order to prevent the election of one who would do grave public harm if elected, or in order to secure the election of one whose election would be a great public benefit. If the only choice lies between candidates who are equally good or equally bad, there will be no moral obligation to vote.
Those who hold any civil office are bound to perform its duties faithfully, not only out of charity, but out of justice.
4. For Catholics it is a matter of religious obligation to love, reverence, and obey those who wield civil power. As Leo XIII teaches: " We are bound to love dearly the country whence we have received the means of enjoyment this mortal life affords, but we have a much more urgent obligation to love with ardent love the Church to which we owe the life of the soul, a life that will endure for ever. . . . Moreover, if we would judge aright, the supernatural love for the Church and the natural love of our own country proceed from the same eternal principle, since God himself is their Author and originating Cause. . . . Law is of its very essence a mandate of right reason, proclaimed by a properly constituted authority, for the common good. But true and legitimate authority is void t of [sanction, unless it proceed from God, the supreme Ruler and Lord of all. The Almighty alone can commit power to a man over his fellow-men; nor may that be accounted as right reason which is in disaccord with truth and with divine reason; nor that held to be true good which is repugnant to the supreme and unchangeable good, or that wrests aside and draws away the wills of men from the charity of God. Hallowed, therefore, in the minds of Christians is the very idea of public authority, in which they recognize some likeness and symbol, as it were, of the divine Majesty, even when it is exercised by one unworthy. A just and due reverence to the laws abides in them, not from force and threats, but from a consciousness of duty; for God hath not given us the spirit of fear."[43]
PART V
THE FIFTH COMMANDMENT
THE Fifth Commandment is, " Thou shalt not kill." [44]
The crime of homicide is primarily forbidden by this precept, but inasmuch as quarrelling, fighting, wounding, lead up to homicide, these and similar acts are secondarily forbidden. Implicitly, the precept prescribes the preservation of life, since death will follow if care be not taken to preserve life.
CHAPTER I
ON SUICIDE
i . SUICIDE, or the killing of one's self, when one's own death is the direct and immediate object of the will, is forbidden by the Fifth Commandment and is grievously sinful. It is the same when death is not the direct object of the will, if some act is done of which the only immediate effect is the destruction of one's own life; for in that case by willing the action I implicitly will the effect. And so if, out of bravado, I jumped from the top of the tower of Westminster Cathedral into the street below, I should be guilty of the grave sin of suicide, even though that was not my direct object.
The reason why suicide is unlawful is because we have not the free disposal of our own lives. God is the author of life and death, and he has reserved the ownership of human life to himself. We cannot leave the post where he has stationed us without his authority. Moreover, a man belongs to his country, and so suicide is a crime against the commonwealth, and as such is punished. There is a controversy among divines as to whether it would be lawful for a malefactor who had been condemned to death and entrusted by public authority with the execution of the sentence against himself to take his own life. Many hold that it would be lawful, for there seems no conclusive reason why the State might not appoint a man to be his own executioner.
2. It is not unlawful to do something which will cause one's own death provided that the action has some other immediate and good effect of great importance, which counterbalances the loss of human life, and this is not intended. This is merely an application of the principle of a double effect which was explained in the Book on Human Acts. The captain of a man-of-war, for example, which in time of war is in danger of falling into the hands of the enemy, might blow up the ship in order to prevent so great a disaster befalling his country, although the act would cause his own death and that of others in the ship. He does not intend the destruction of human life; the immediate effect of his action is to prevent the ship falling into the enemy's hands. The public advantage counterbalances the loss.
3. Similarly, for good reason I may undertake dangerous work, go to unhealthy climates, or lead a kind of life which will lessen the number of years that I shall live. Somebody must do such things; they are useful to the community or to myself, and I do not intend the shortening of my life. It would be wrong to expose my life to probable danger merely for the sake of getting money or notoriety; such reasons do not justify us in seriously risking human life.
4. As we have not the ownership of life, so neither are we the owners of our limbs so as to be able to dispose of them at will. A man is not justified in mutilating himself in order to avoid military conscription, or to excite commiseration, or to gain money. The amputation of a limb is permissible when such an operation is necessary in order to preserve life; for we may sacrifice a part for the safety of the whole.
5. We are obliged to take ordinary means to preserve our lives, for to do otherwise would be virtually to commit suicide. There is no obligation to take extraordinary, unusual, or very painful or expensive means to preserve our lives. And so one in feeble health, who will probably die if he spends the winter in England, is not bound to expatriate himself and go and live in a milder climate. Nor am I bound to undergo a painful and costly operation in order to save my life; I may if I like choose rather to die, unless my life is of great importance for the common good, for then the public good must be considered first. Except in such a case as this, a superior could not oblige a subject to undergo a very painful operation or to submit to the amputation of a leg; obedience to human authority does not seem to extend to such matters as these.
CHAPTER II
ON CAPITAL PUNISHMENT
I. THE right of the State to punish criminals with the infliction of death is either expressly conceded or clearly supposed in Holy Scripture. [45] It is sufficiently evident, too, from natural reason, for the State should be endowed with all those powers which are necessary to secure its end, the temporal happiness of its citizens. But it would not be possible to keep human passion within bounds and ensure the safety of the lives and property of its peaceful citizens, unless the State had the power of inflicting death on those who have been guilty of great crimes. The practice of the most civilized states confirms this view, and experience seems to demonstrate its truth. If the time should ever come when the infliction of less severe penalties will suffice to punish crime and safeguard life and property, then capital punishment should be abolished, but that time does not seem to be at hand yet.
If the State has the right to deprive a criminal of life, a fortiori it may inflict lesser punishments, such as flogging and imprisonment. Indeed, certain persons who have authority over others, such as fathers of a family, captains of vessels at sea, and schoolmasters, have the power to inflict smaller punishments in moderation on delinquents under their authority. Before capital punishment can be inflicted the essentials of a judicial process by which a grave crime is brought home to the delinquent must be gone through. For the right of capital punishment belongs to the State as such, to the public authority, and so before punishment is inflicted it should be proved that the crime was committed by the person charged, and judicial sentence according to law should be passed upon him. In certain cases when the ordinary process of law cannot be followed, and there is danger in delay, the public authority might empower anyone to kill a notorious criminal, but in settled times and ordinarily this should not be done. It would be a very dangerous remedy for crime if the State empowered its citizens to punish delinquents without previous trial and conviction. The innocent sometimes suffer in spite of the elaborate precautions and delay of modern criminal trials. If these were abolished and every citizen became a judge and executioner for crime, the remedy would be far worse than the disease. The Roman law and that of some more modern states permitted a father or husband to kill a daughter or wife found in adultery. Such laws were not approved by the Church, and they could not in conscience justify one who took advantage of the immunity they gave to commit so cruel a murder.
2. To take means to safeguard the public welfare, and especially to inflict the punishment of death on criminals, belongs to the public authority and not to private citizens, and so these cannot lawfully arrogate to themselves the power of inflicting capital punishment. Lynch-law, then, is against sound principles of morality. In places where no effective government exists, the people should constitute a government to safeguard the common interests and to punish crime; this duty must not be left in private hands.
I quote the following from the Encyclopedia of the Laws of England, s.v. Escape: " Considerable controversy has from time to time arisen on the question whether the officers of the law or persons entitled to apprehend or detain a person accused or suspected of crime are entitled to kill him on pursuit if they cannot otherwise stop him, or to kill him to prevent his escape after arrest. It seems to be agreed that the custodian is not entitled to kill to prevent escape from custody on a civil charge, nor from custody on a charge of misdemeanour. Where the escaped prisoner is accused of a capital offence, the custodian appears to be entitled to kill him if he cannot otherwise retake him; but it is not clear whether the mitigation of the severity of the law as to punishments for felony during this century (the nineteenth) can be regarded as reducing the right of the officers of the law to kill a fugitive from justice. With respect to convicts under sentence of penal servitude escaping from prison, questions arose in 1896 owing to the shooting of an escaping convict on Dartmoor which cannot be regarded as settled, and which have led to a revision of the Convict Prison Rules."
CHAPTER III
ON JUSTIFIABLE HOMICIDE
I. IN defence of my own life from unjust attack I may use whatever violence is necessary and even go to the length of killing the aggressor, if I cannot otherwise save my life. This right of self-defence all laws, human and divine, concede, as Innocent III declared. Nature herself teaches us that an act which is necessary for self-defence is lawful, and even if it lead to the taking of the life of the unjust aggressor it does not cease to be lawful. A higher value must be set on the life of the innocent than on that of the guilty, especially when the guilty one is the cause of his life being put in jeopardy. No one is justified in using greater violence than is necessary for the purpose of self-defence, so that if by striking or wounding an assailant of my life I can effectually defend myself, I am not justified in killing him. On the same principle no private person can take vengeance for violence which has already been done, by offering violence in return; vindictive justice is reserved for public authority, at any rate in more serious matters. Nor may one whose life is threatened anticipate the attack; defence is only lawful when the attack is practically being made or is at any rate imminent. Unless the attack is practically imminent it is always possible to resort to other means than homicide for the defence of one's own life; one may invoke the protection of the law or at least fly the intending assailant.
2. Under the same limitations it is lawful to kill the assailant not only of one's life, but also of limb, of chastity, and of property. For all these goods belonging to an innocent person may be lawfully defended by him even at the cost of the life of the unjust assailant of them, who is responsible for his own death by his unwarrantable action. When it is said that we may kill an unjust assailant in defence of property, it is supposed that the property which is threatened is of considerable amount. Innocent XI condemned a proposition which asserted that, " As a rule I may kill a thief for the preservation of a gold piece." This proposition is false, for a rich man would not be justified in shooting a thief whom he saw walking off with one of his silver spoons. If, however, the thief threatens property of considerable value say, twenty pounds or so and the only way of saving the money is by taking the life of the thief, this would be lawful. Moreover, when a highwayman demands my purse or my life, I am not bound to hand him my purse, even though it contain little money; I may always defend myself from such unjust attacks, even though it finally involves the death of the aggressor.
3. It is not lawful to kill another who attacks my honour with insulting words. The contrary used to be held by some theologians, but the doctrine was condemned by Alexander VII and Innocent XI. The reason of the difference between this case and the foregoing is that verbal insults are often not of very serious consequence; they are better and more effectively met by quiet contempt than by being taken seriously, and that would be a perilous doctrine which taught that a man might avenge an insult with the death of the offender. What constitutes an insult is often a very subjective question, and the results of the doctrine would be deplorable.
4. What one may lawfully do, that, as a rule, another may help him to do; and so I may kill or maim an unjust assailant not only of my own life, limb, chastity, or property, but when any innocent person is similarly threatened I may also do the same in his defence. Although I may lawfully do this, yet there is seldom an obligation of doing it, for the obligation would only arise from charity, and as we saw above, this virtue does not usually bind with such serious inconvenience as would always be involved in taking life in defence of another. Those who have charge of the public peace and security are more strictly bound to perform their duty of protecting life and property even at the sacrifice of the lives of wrongdoers.
CHAPTER IV
ON KILLING THE INNOCENT
I. IT is never lawful directly to kill the innocent, or, in other words, it is never lawful to kill the innocent when the death is intended in itself, or when it is inflicted as a means to the attaining of some other object. Such an act is expressly forbidden by God: " The innocent and just person thou shalt not put to death."[46] Reason, too, teaches us the same truth; for if ever it were lawful directly to kill the innocent, it would be so when such a death would be of great advantage to the commonwealth. But even to save the State an innocent man's life must not be taken directly, for the State exists that good men may lead honourable and peaceful lives; the State is for the good citizens, not the good citizens for the State. Not even the good of the State, then, makes it right to take an innocent man's life, and if that does not justify the act, nothing does.
2. The death of the innocent may be permitted, not intended, when it follows from some action lawful in itself which also produces an equally immediate and good effect, and when this counterbalances the evil effect. This, again, is but the application of the principle of a double effect, and it is evident from what has been said before. The general of an army who orders the bombardment of a beleaguered town knows that his order cannot be executed without killing perhaps many innocent non-combatants, yet the action is not unlawful.
3. Casual homicide which was not intended in itself, but which was the consequence of doing some dangerous action, as furious driving in a frequented street, is imputable to the agent if he adverted to the probable danger of killing someone. If such probable danger did not exist, or was not adverted to, casual homicide will not be imputable in conscience, although if the action be forbidden by law, even on other grounds than the chance of its causing another's death, and someone is killed by it, English law punishes it as manslaughter.
4. It is usual to treat here of abortion, and of certain surgical operations concerned with child-bearing. Abortion is the premature ejection of the living foetus. The human foetus reaches maturity about nine months after conception, but it is capable of living even if born a considerable time before maturity. A child may live when born at seven months or even somewhat earlier, especially if artificial means are taken for preserving its life. When the fcetus is ejected at such a time that in the judgement of a skilled medical man it will probably live, this is called acceleration of birth rather than abortion in the strict sense. We are here concerned with the lawfulness of procuring abortion and of performing such operations as craniotomy and embryotomy, which destroy the life of the fcetus. There is only question of the living, not of the dead, fcetus, as is obvious.
5. Inasmuch as it is never lawful directly to kill the innocent, it is never lawful directly to procure abortion at a time when there is no probability that the foetus can live outside the mother's womb. This is clear, for the fcetus is a human being, with a human soul, which, as is commonly held by theologians, is infused into it by God at the moment of conception; it has, then, as much right to live as anyone else, and it certainly is innocent of all personal crime. To deprive it directly of the medium in which alone it can live is to kill it directly, just as to deprive a man of air by plunging him under water is to kill him directly. The direct procuring of abortion, then, is never allowed, inasmuch as it is the direct killing of the innocent, and intrinsically wrong. In the same way, anticipated homicide and a grievous sin are committed whenever means of whatever sort are taken to prevent conception.
6. However, just as the indirect killing of the innocent is lawful for a just cause, as we have seen, so a pregnant woman who is suffering from disease or tumour, or any complication which threatens life, may lawfully adopt the necessary means to save herself, even if what is a remedy for her causes the death of the foetus. In all these cases we have but the application of the principle of a double effect; the mother is not bound to sacrifice her life by abstaining from adopting the remedy indicated, especially as her own death would also involve the death of the child. Thus we may approve of the following solution by Dr. Capellman of the " case where the uterus with the foetus is locked in the upper strait, as may happen through retroversion, sinking, and prolapsus of the pregnant womb. If all other known means of turning or replacing the uterus fail, I believe it to be allowable to induce abortion indirectly, by procuring the discharge of the waters, or by the perforation of the foetal membranes. " [47] On the same principle P. Antonelli thinks that it is lawful to remove an ulcerated womb which is threatening the life of a pregnant mother though the operation cause the death of the foetus, as also to remove an extrauterine foetus whose further growth would cause the certain death of the mother. [48]
All who unlawfully procure abortion incur the penalty of excommunication, the absolution of which is reserved to the Bishop by Canon 2350.
7. Craniotomy, or any other similar operation which has for its immediate and direct effect the destruction of the life of the foetus, is a direct killing of the innocent, and is never allowed. If the child is already dead, there is of course no difficulty in permitting craniotomy or embryotomy, but if it is still alive it is not lawful to kill it, even if otherwise both child and mother were certain to die. Evil must not be done that good may come of it. The end does not justify the means. Some medical men consider the foetus, until it is born, as a portion of the mother which may be destroyed to save her life. This view is not in keeping with Christian principles, according to which the child has a soul of its own, and has its own independent right to live.
Some theologians used to think that such operations were lawful if the mother's life could not otherwise be saved, because the child might be considered a materially unjust assailant of its mother's life, and so be lawfully killed; or because when there is a conflict of rights the stronger right should prevail. However, in no sense can it be allowed that the child is an unjust assailant of its mother's life; it is where nature placed it, through no fault of its own, and it has a right to be there and to be born. If either is an unjust assailant of the other's life, it is the mother, who voluntarily undertook the obligations of motherhood. In the same way, when the stronger of two conflicting rights prevails, this is due to the fault of the other party, and such fault is out of the question in this case. This doctrine is now theologically certain after the repeated declarations of the Holy See that no operation which tends directly to the destruction of the life of the foetus is lawful.
When the child cannot be born in the natural way, and the life of both mother and child is in danger, Caesarian section or some similar operation may be, and should be, performed, by which the lives of both may very probably be saved. The operation which takes its name from Dr. Porro, and which consists in removing the uterus together with the foetus, requires some special reason to make it lawful, for such mutilation of the mother is only allowed when it is necessary in order to save life.
In all operations which involve danger to the life of the child, Catholic parents should be careful to have the living foetus baptized, which may be done by the doctor or nurse while it is still in the womb. But according to Canon 746 this should not be done as long as there is any hope of the child being born alive.
CHAPTER V
ON DUELLING
i. A DUEL is defined to be a premeditated and prearranged combat between two persons with deadly weapons, and usually in the presence of at least two witnesses, called seconds, for the purpose of deciding a quarrel, avenging an insult, or clearing the honour of one of the combatants or of some third party whose cause he champions.
A duel, then, is a premeditated and prearranged single combat, for if two persons begin to quarrel and then come to blows, it is not a duel even if death be the result. Nor is it a duel if two enemies meet by accident and begin straightway to fight. A duel is a combat with deadly weapons, so that a fight with sticks or with the fists is not a duel. Although seconds are commonly present, yet their absence would not prevent a single combat from being a duel if the other conditions were verified. The duel is for the purpose of deciding a private quarrel, and for such a purpose it is unlawful even if it have the sanction of public authority, for there are other and lawful means of settling such matters. A single combat between champions of hostile nations entered into by public authority for the purpose of terminating the war, or giving courage to the army, would not be a duel, and might be permitted.
2. It is never lawful to fight a duel by private authority, for it obviously exposes the parties to grave risk of killing or wounding, or of being killed or wounded, and this is never lawful by private authority except under the conditions which justify killing in self-defence, and these are not verified in the duel.
The Council of Trent very emphatically condemned duelling as a detestable practice and excommunicated the guilty parties, their seconds and abettors, as well as emperors, kings, and princes who permit it in their territories. This excommunication is renewed by Canon 2351, and the power of granting absolution if it has been incurred is reserved to the Pope. Benedict XIV, by a constitution dated November 10, 1752, condemned the following propositions as false, scandalous, and pernicious:
" (a) A military man who, unless he offer or accept a duel, would be considered cowardly, timid, worthless, and unfit for office in the army, and so would be deprived of his post by which he gains support for himself and his family, or would for ever lose all hope of promotion otherwise due to him, would incur neither fault nor penalty if he offered or accepted a duel.
" (b) Those who accept or challenge to a duel for the sake of defending honour or avoiding disgrace may be excused when they know for certain that the combat will not come off, inasmuch as it will be prevented by others.
" (c) A general or officer in the army who accepts a duel through serious fear of losing reputation or office does not incur the penalties inflicted by the Church on those who fight a duel."
The contradictory of these false propositions must be held by all who admit the authority of the Church.
3. Clement VIII, in a constitution dated September i, 1592, declared that those incurred the penalties of duelling who fought under the stipulation that they would stop after a certain number of blows, or as soon as either was wounded or blood was drawn. Grave sin, then, would be committed by challenging or accepting a duel even under these conditions, at least on account of the scandal and disobedience to authority, if not on account of the danger.
By English and American law duelling is illegal, and if death be the result, it is regarded as murder, and the seconds are liable to punishment as accessories.
CHAPTER VI
ON WAR
i. WAR, or an armed struggle between sovereign states, is defensive when it is undertaken to resist attack; otherwise it is offensive when undertaken to avenge an injury, or in vindication of a right.
2. When a quarrel has arisen between two sovereign states, if it is clear that one of the parties is in the wrong, it is bound to make reparation to the offended party. In national quarrels, however, this is seldom the case; as a rule, international disputes are matters of great complexity, and it is very difficult to say on which side right and justice lie. In ordinary cases, then, defensive war is always lawful, for if individuals have the right of self-defence the same right must a fortiori be conceded to a sovereign state. Even offensive war is lawful, provided that certain conditions be fulfilled. This is the certain teaching of Catholic theology, although the Church constantly prays to be delivered from all wars and from the terrible evils to which they give rise. Although war is a great evil, yet it is sometimes a hard necessity if still greater evils are to be avoided. For there is no higher tribunal to which sovereign states can have recourse to settle their disputed rights, and nothing is left but the final arbitrament of the sword. In modern times arbitration courts have been established, and they have done useful work, but cases arise in which their aid cannot be invoked with effect.
3. The conditions on which war may be lawfully waged are three:
(a) The public authority of a sovereign state is requisite to declare war, for war, except in just defence, cannot be made on private authority, or by a less than sovereign state; for private persons and subject states can always have recourse to higher authority for the vindication of their rights.
(b) A just and weighty cause is necessary, for the cause should be such as to outweigh the grave evils and risks which always accompany war. Such causes, in the judgement of divines, are: the retaking of a conquered country or rebellious province, the avenging of a grave insult or injury offered to the State, the freeing of the unjustly oppressed, the refusal of infidel states to allow the Gospel to be preached in their dominions. There is considerable difference of opinion as to whether certainty of the existence of a sufficient cause is required or not for the lawfulness of a war. Some divines hold that a probability of right is sufficient, for with such a probable right a private person may commence an action at law, and states should not be in a worse position than private persons in the prosecution of their claims. However, on account of the grave public evils connected with war, and because it is unlawful to deprive another of what he possesses on the ground that it is only probably mine, it would seem that at least a more probable right or even a moral certainty of right is required on the side of the state that begins the war.
(c) There must be an upright intention of advancing the cause of good or preventing evil. Mere delight in the excitement of war, or the desire of showing one's prowess or obtaining promotion, would not justify war.
When the end of the war has been sufficiently obtained the victorious party should be ready to make peace on proper guarantees being given.
4. Where conscription exists or soldiers have already enlisted before the outbreak of war, they are not bound to make inquiries about the origin of the war in order to satisfy their consciences of its justice; they may presume that their country is in the right unless it is evident that it is in the wrong, and in doubt they are bound to obey the commands of their lawful superiors. If the war is clearly unjust it only remains for the conscientious soldier to abstain from inflicting unjust damage on the enemy, otherwise he will be a co-operator in injustice. Volunteers who had not enlisted at the outbreak of war are bound to satisfy their consciences as to its lawfulness before they take any part in it, just as they are bound to form a morally certain conscience about the lawfulness of any action that they undertake, as we saw in the Book on Conscience.
5. In a just war all means that conduce to the end of gaining victory over the enemy are lawful, provided that they are not against the law of nature and international law or agreement. International agreements are only binding if they are faithfully adhered to by the adverse party. In modern war it is the practice to spare the persons and property of non- belligerents as. far as possible. In naval warfare not only the enemy's ships of war may be attacked and taken, but his merchantmen, and any British vessel or vessel of an ally trading with or acting in the service of the enemy at war with England, or any neutral vessel engaged in the same way or in the carriage of contraband, and blockade runners, may be captured and made lawful prize by duly commissioned British ships. Booty of war on land is restricted to arms, ammunition, and military provisions and stores. Private property on land is no longer liable to capture and confiscation, but requisitions and contributions of men for labour, money, victuals, etc., are still levied on the invaded territory by duly qualified officials of the invading army. Beyond these limits, or at least beyond what is permitted by lawful authority, it is not allowed to appropriate private property belonging to the enemy.
PART VI
THE SIXTH AND NINTH COMMANDMENTS
IT is usual to treat of these two Commandments together, for the Sixth, " Thou shalt not commit adultery," [49] in expressly forbidding the chief sin, implicitly forbids all other external sins against the laws of marriage, and the Ninth, " Thou shalt not covet thy neighbour's house, neither shalt thou desire his wife," [50] forbids internal sins of covetousness and lust. The general doctrine concerning internal sins was given in a former Book; the special doctrine about covetousness in so far as it is against justice is clear from what was said about avarice and what will be said later about justice; the doctrine about external sins of lust will be evident from what has to be said in this place.
CHAPTER I
THE NATURE OF IMPURITY
I. THE means devised by God for the preservation and increase of the human race is the union of the sexes. This union has for its primary object the procreation of children, who require for their proper education the long and assiduous care of both father and mother. Nature, then, as well as the law of God and of the Church, requires that children should only be begotten of parents joined in lawful and indissoluble wedlock. As nature has taken care that the individual should take the food and drink necessary for his personal support by giving him the spur of appetite for nourishment and pleasure in taking it, so the same great Mother has taken care of the race by joining venereal pleasure to the act of procreating children. This venereal pleasure is lawful when indulged in between married people and according to the laws of marriage. In all other cases it is unlawful, and is forbidden by the Sixth and Ninth Commandments.
Venereal pleasure must be distinguished from sensual and from venereo-sensual pleasure. Venereal pleasure has its seat in the genital organs, and is caused by their motions, the irregular motions of the flesh. Sensual pleasure is other than venereal, and rises from indulgence of the senses, from the contemplation of a beautiful picture, from listening to sweet music, from touching the glossy and soft coat of a cat. This sensual pleasure is morally harmless in itself, but there is a certain kind of pleasure which is sensual in its origin but which is connected with, and ordinarily causes, venereal pleasure. It arises from such acts as voluptuous kissing, and is called by divines venereo-sensual. On account of its connection and tendency, venereo-sensual pleasure is evil, and ordinarily is more or less sinful, as we shall see in what follows.
Sins of impurity are consummated or non-consummated. Peccata consummata procedunt usque ad perfectam voluptatem veneream, quae habetur per copulam vel per pollutionem. Sunt consummata juxta naturam si exinde generatio prolis sequi possit, aliter sunt consummata contra naturam. Non- consummata peccata sunt aspectus, tactus, colloquium impudicum, quae non pertingunt usque ad perfectam voluptatem veneream.
2. All sins of impurity of whatever kind or species are of themselves mortal. This doctrine is taught in such passages of Holy Scripture as the following: i Cor. vi 9-10; Gal. v 19; Matt, v 28. Moreover, as we saw above, those sins are grievous which cause great harm to society or to the individual; but there is scarcely any cause so prolific of public and private evil of all sorts as sins of impurity, so that we must conclude that they are grievous even by the light of reason. Furthermore, all sins of impurity, if voluntary in themselves and fully deliberate, are mortal; or in other words, it is grievously sinful directly to seek any even slight unlawful venereal pleasure, or to consent to it deliberately even when it has not been directly sought.
This doctrine is the approved teaching of theologians, and it has a rational basis, inasmuch as the tendency of men to these sins is so strong and their weakness so great, that slight indulgence in venereal pleasure almost necessarily leads to grave excesses, so that even in light matter there is the whole reason of the prohibition, and so all sins of impurity, if fully deliberate and voluntary in themselves, are mortal, and there are none that are venial merely on account of parvity of matter.
On the other hand, if venereal pleasure is not voluntary in itself but only in its cause, nor deliberately consented to when it arises, although it was foreseen that it would follow from some other action, as from reading a lascivious book, or looking at an immodest object out of curiosity, it may be only venially or it may be mortally sinful, according to circumstances. In general, if in the case in question there is proximate danger of giving consent to the impure pleasure, or if its cause is of its nature such as to occasion great venereal pleasure, this will be mortally sinful even when only indirectly voluntary; in other cases it will be only venially sinful.[51] This same principle will guide us in questions concerning the greater or less malice of venereo-sensual pleasure.
CHAPTER II
ON CONSUMMATED SINS OF IMPURITY
THESE are commonly reckoned as six in number: fornication, adultery, incest, criminal assault, rape, and sacrilege. All are grave sins against chastity, and the last five contain grave malice against other virtues as well. Something must be said about each one.
1. Fornication is the act of carnal intercourse between persons of different sex who are not married but who are free to marry.
Holy Scripture teaches us that fornication is a grave sin, for " fornicators shall not possess the kingdom of God." [52] " No fornicator hath inheritance in the kingdom of Christ and of God." [53] It is a grave sin not merely because it is forbidden by positive law, but because it is intrinsically wrong and contrary to the law of nature. Innocent XI condemned the following proposition: " It seems so clear that fornication in itself is not wrong, and is only evil because it is forbidden, that the contrary is altogether against reason." [54] This truth is sufficiently clear to unaided reason, for the human offspring requires for long years the constant care not only of the mother, but of the father as well, and so nature requires that the father should be certain, otherwise so great a burden could not be laid upon him. But the fact of paternity would be very uncertain if fornication were allowed, and so we must conclude that it is wrong in the nature of things. As St Thomas observes, [55] the fact that in particular cases the paternity of a child born out of wedlock is sufficiently clear, and the child's education can be provided for, does not militate against the force of the general argument, for in striving to lay down general rules of conduct we must have regard to what would happen ordinarily if such an action were lawful, not to what takes place in special circumstances.
2. Adultery is the act of carnal intercourse between persons of different sex of whom one at least is married to someone else. Besides being a grave sin against chastity, adultery is also a serious violation of justice, which prescribes fidelity to the marriage vows as long as they exist. Even if the other party whose marriage rights were violated by adultery should have given his consent to the sin, it still is against justice, for, like the right to life, marriage rights are inalienable, and cannot be renounced by those who own them. If both parties who sin together are married to someone else, there will be a double sin against justice committed by both of them, and the circumstance should be mentioned in order to secure the integrity of confession. This is clear, and it is confirmed by the condemnation of Proposition 50 by Innocent XI.
3. Incest is carnal intercourse with relatives by blood or by marriage. Besides its general malice against chastity, incest is against the special virtue of piety, which prescribes due reverence toward, and abstention from carnal sins with, those who are nearly related. With regard to parents and children at least, this law of reverence belongs to the law of nature; in other degrees of kindred up to the third, and of affinity up to the second, reckoned according to the rules of canon law, it is of positive ecclesiastical law; whether it is also of natural law in the nearer degrees is disputed. All carnal intercourse then, between relatives by blood up to the third degree, and between relatives by marriage up to the second degree, is incest either by natural or by ecclesiastical law. Community of blood and the close ties which exist between parent and child give a special and distinct malice to sins of impurity committed between them; in other degrees of kindred and affinity there is not the same community of blood nor equally close ties, and so the opinion of many approved theologians is probable that although incest in the first degree of the direct line of blood relationship is distinct in malice from the others, these latter are all of one moral species as far as the integrity of confession is concerned.
Carnal sins committed between those who are united by the ties of spiritual or legal relationship are also distinct species of incest.
4. Criminal assault is the using of violence against a woman to compel her to commit sins of impurity. It contains a grave and special sin against justice as well as the malice of impurity, and it is severely punished by criminal law. It is probable that there is no specific difference in the sin whether the woman be a virgin or not.
5. Rape is the violent abduction of a person from a place of safety for the purpose of satisfying lust. The violence may be offered to the person abducted, or to the parents, or to those who have charge of her, and it adds a special malice of its own to the sin besides the malice against chastity.
6. By sacrilege is here understood the violation by carnal sin of a person, place, or object, consecrated to God. The doctrine concerning it will be sufficiently clear from what was said above under the First Commandment.
CHAPTER III
DE PECCATIS CONSUMMATIS CONTRA NATURAM
HAEC tria numerantur: pollutio seu mollities, sodomia, et bestialitas, de quibus in sequentibus articulis est agendum.
ARTICULUS I
De Pollutione
1. Pollutio est voluntaria seminis [56] humani extra concubitum effusio, unde vocatur etiam peccatum solitarium.
Dicitur voluntaria sive in se sive in causa, ut distinguatur ab involuntaria quae ex variis causis oriri potest et praesertim naturaliter ad superfluitatem exonerandam in somno.
Dicitur seminis effusio ut distinguatur a distillatione qua humor minus densus alterius omnino speciei ex urethra profluit apud puberes et impuberes sive cum excitatione venerea sive sine ilia.
2. Pollutio directe voluntaria est intrinsece mala et peccatum mortale. Constat ex Sacra Scriptura 1 ac ex constanti Ecclesiae doctrina. Innocentius XI hanc propositionem condemnavit: " Mollities jure naturae prohibita non est. Unde si Deus earn non interdixisset, saepe esset bona et aliquando obligatoria sub mortali." Idem probatur ex pessimis effectibus qui ex hoc vitio sequuntur turn individuo, ejus vires mentis et corporis debilitando, turn societati quatenus illi qui hoc vitio implicantur contenti voluptate solitaria matrirnonii gravia onera fugerent cum ruina generis humani. In omni vero casu illicita est ita ut nulla exceptio detur, quia propter maximam proclivitatem hominum ad hujusmodi peccatum si unquam permitteretur facile occasiones sibi indulgendi fingerent ad propriam ruinam. Unde necesse est ut nunquam ne ad vitam quidem salvandam sit licita.
Plures antiqui Doctores probabiliter juxta St Alphonsum [57] tradiderunt licere semen corruptum sine sensu libidinis expellere. Moderni autem negant semen unquam corrumpi, unde fundamentum istius sententiae deesse videtur. Smegma vero congestum sub praeputio removere licet et expedit ad pruritum minuendum.
3. Pollutio indirecte voluntaria est peccatum grave vel leve vel nullum juxta circumstantias. Si provenit ex causa graviter mala in genere luxuriae est peccatum mortale, quia volendo talem causam vult homo implicite etiam pollutionem. Si provenit ex causa leviter mala in genere luxuriae, ut ex curiosa lectione libri minus honesti, ipsa pollutio probabilius est tantum veniale, " quia cum pollutio non sit volita in se, sed tantum in causa, eo gradu mala erit, quo mala est ipsa causa." [58] Si praevidetur secutura per accidens ex honesta actione ut ex equitatione, ex modo decumbendi rationabili causa assumpto, nullum erit peccatum. Si vero per accidens sequitur ex actione mala in alia specie quam luxuriae, ut ex ebrietate, ex violatione jejunii, videtur esse veniale, cum aliqua admittatur culpa etiam contra castitatem quando pollutio praevidetur secutura ex actione ad quam ponendam nullum detur jus. Aliqui excusant ab omni etiam veniali culpa pollutionem quae per accidens sequitur ex actione venialiter tantum mala in alia specie quam luxuriae. [59] Ut patet in hac quaestione praescindimus a periculo consentiendi in delectationem ex pollutione ortam, quod non supposuimus.
Pollutio in somno quae accidit ex praevio peccato mortali in genere luxuriae, est ipsa peccatum mortale; si sequitur ex peccato veniali in genere luxuriae vel ex peccato mortali ebrietatis, est ipsa veniale; aliter est nullum.
Siquis pollutionem dum patitur evigilatus fuerit, non datur obligatio positive earn reprimendi, dummodo nullus consensus detur: mens debet ad Deum vel ad alia converti ne consentiat in malum.
Dummodo adsit justa et proportionata causa exercendi actiones, ut a medicis qui mulieribus medentur, ex quibus praevidetur pollutio secutura quae non intenditur nee cui consensus datur, haec nullum erit peccatum, ut clarum est ex principio duplicis effectus.
4. Quamvis mulieres semen non administrent sed ovum semine foecundandum in opere conjugali, similis tamen voluptatis completae solitarie sunt capaces sicut sexus virilis. Unde sicut apud viros specie distinguuntur peccatum tactus impudici incompletum et pollutio, ita apud feminas peccatum solitarium consummatum a peccato nonconsummato specie distinguitur. Ita cum communi sententia videtur tenendum. Non semper tamen apud feminas quae pollutionem patiuntur adest effusio extra vas, sed intus excretio manet. A pollutione vero, lit patet, sedulo sunt distinguenda menstrua, quae post pubertatem adeptam usque ad menopausim fere omnes feminae sine aestu libidinis singulis mensibus experiuntur.
5. Impuberes qui semen prolificum non habent voluptatis perfectae quae peccatum consummatum comitatur sunt incapaces, unde saltern probabiliter peccatum pollutionis physice committere nequeunt. Voluntarie sibi complacendo motibus impudicis mortaliter quidem peccant impuberes, sed probabiliter propter dictam rationem est peccatum tantum tactus impudici.
6. Vidimus pollutionem, quae ex causa leviter tantum mala in genere luxuriae sequitur et quae in se non est voluntaria, esse veniale tantum peccatum. Sed quaestio est apud Doctores controversa utrum si propter specialem alicujus dispositionem vel fragilitatem pollutio fere semper ex tali causa sequitur iste sub gravi ab actione ponenda teneatur eo quod causa tune graviter in effectum influere censeatur, an tantum sub levi. Si adsit proximum periculum consensus dandi, omnes admittunt adesse obligationem ab actione ponenda abstinendi gravem, aliter vero probabilis videtur sententia plurium obligationem esse solummodo levem. Nam adhuc vera manet ratio a S Alphonso assignata doctrinae supra traditae, " quia cum pollutio non sit volita in se, sed tantum in causa, eo gradu mala erit, quo mala est ipsa causa." Ratio vero cur causa in hoc casu gravius influere in effectum videtur, est subjectiva agentis dispositio quae non est volita, nee proinde imputabilitatem effectus afficit.
ARTICULUS II
De Sodomia
Sodomia est actus venereus completus in vase indebito, et est peccatum gravissimum contra natura.m. Concubitus cum eodem sexu et copula per anum est sodomia perfecta, concu-: bitus diversorum sexuum et copula per anum est sodomia imperfecta quae specie a priori differt. Si sodomia reservatur, nisi aliud expresse a reservante declaratur, intelligitur sodomia perfecta.
Plures tamen theologi docent sodomiam consistere in concubitu ad indebitum sexum, ita ut sit indifferens qua parte coeatur, si fiat applicatio membri virilis ad sexum indebitum cum pollutione. Quae sententia sane est probabilis, imo ut aliqui dicunt communis, unde sufficit si confessarius intelligat fuisse concubitum cum affectu ad sexum indebitum et cum pollutione, nee est necessarium inquirere de modo coeundi.[60]
Sodomia igitur consistit in concubitu cum sexu indebito cum pollutione, unde siquis se polluit simplicitur tangendo alium, malitiae ejus inconscium sine affectu ad personam, et sine concubitu, habetur pollutio non sodomia. Si alter etiam peccat, circumstantia complicitatis in confessione erit manifestanda. Probabile est specie non distingui peccatum agentis et patientis, si ex utraque parte adfuerit pollutio.
ARTICULUS III
De Bestialitate
Bestialitas est concubitus cum bestia.
Dummodo adsit pollutio indifferens est sive bestia sit masculina sive feminina, qua specie sit, vel qua parte coeatur, cum malitia hujus peccati consistat in accessu ad diversam speciem, quacum generatio haberi non possit. Gravius est peccatum quam etiam sodomia, cum in hoc peccato non servetur eadem species. Constat vero hodie generationem non sequi ex commercio hominis cum bestia.
Sodomia et bestialitas gravissime lege ecclesiastica et etiam municipali puniuntur (Can. 2357, 2359).
CHAPTER IV
ON NON-CONSUMMATED ACTS OF IMPURITY
I. As we saw above, mortal sin is always committed whenever venereal pleasure is directly sought or deliberate consent is given to it, even though the venereal excitement be little and stop short of consummated sin. In other words, there is no parvity of matter, as theologians say, in sins of impurity when the venereal pleasure is voluntary in itself. It follows from this that non-consummated .acts of impurity such as immodest touches, looks, talk, reading, will be mortally sinful whenever they are indulged in with a view to exciting venereal pleasure.
2. Even though the excitement of venereal pleasure be not directly intended, yet immodest touches will be more or less sinful in proportion as they are more likely to excite venereal pleasure, and there is no just cause for allowing them. If there is a just and proportionate cause for permitting immodest touches and any venereal pleasure that may ensue is not intended or consented to, then there is no sin in them. When there is no good reason for allowing immodest touches, they will be mortally sinful if, as a general rule in normally constituted persons, they tend to cause great venereal excitement; otherwise they will be venially sinful.
Hinc: (a) Tactus in partes inhonestas alterius personae diversi sexus sunt mortalia, imo alterius personae ejusdem sexus, nisi leviter ex joco vel petulantia fiant.
(b) Tangere genitalia brutorum, vel partes minus honestas alterius personae per se veniale non excedit.
In the same way immodest looks may be gravely or venially sinful, or perfectly lawful, according to circumstances. When there is just cause for them and no harm is intended or consented to, they are lawful. If there is no good reason for them, and of their nature they tend to cause great venereal excitement, they are mortally sinful; otherwise they are only venially sinful.
Hinc: (a) Aspicere ex curiositate pudenda personae alterius sexus, vel concubitum humanum, est mortale peccatum, nisi brevissime fiat, vel a longa distantia, vel si aspiciens sit senex, frigidus, talibus assuetus, quia tales parum moventur. Facilius a mortali excusatur qui ex curiositate aspicit picturas obscoenas, quae non ita commovere solent.
(b) Leve peccatum per se non excedit aspicere ex curiositate animalia coeuntia, partes minus honestas mulieris, partes obscoenas ejusdem sexus.
(c) Actus praedicti culpa vacant si ex proportionata utilitate vel necessitate exerceantur.
Similarly immodest conversation will be mortally sinful if it is about very obscene subjects between young persons, especially if they be of different sexes. It will be venially sinful if the subject be less objectionable, or if a dirty joke is made in passing. The confessor may, as a rule, presume that grown-up penitents, especially if they be married, who accuse themselves of immodest talk, are only guilty of venial sin; and so he may spare himself and them any questioning on the matter.
The reading of very obscene books without any good reason can hardly be excused from grave sin, unless by experience the reader knows that they have little or no effect upon him, and this should not be lightly presumed. Reading novels in which the passion of love is depicted in warm colours is very dangerous, especially for the young, and unless there is some good excuse for it can hardly be without some sin. This will all the more be true of novels which are suggestive of evil, and fill the mind with dangerous thoughts.
3. The morality of kissing and embracing is regulated by the same principles as the above. Kissing in the ordinary way 4 of greeting or leave-taking between relations and friends, according to the custom of the country, as theologians say, is of course harmless and allowed. Even if such marks of pure affection or civility unintentionally sometimes cause venereal excitement, no notice should be taken of it. Apart from this, kissing and embracing, especially between different sexes, naturally tends to cause venereal excitement, and is more or less sinful. Mortal sin will be committed as a rule by indulging in passionate and prolonged embraces and kisses; otherwise the sin will be only venial. Those who .intend marriage and are already engaged to each other have an excuse for showing each other the ordinary signs of affection, but they should use their privilege with due caution and Christian prudence. As a rule, little harm will be done if they have a witness of their conduct, or if they only permit themselves to do what they would do if such a witness were present.
4. Non-consummated sins of impurity are specifically di stinct from consummated sins, in the same way as attempted homicide is specifically distinct from homicide. Impure touches, however, and lascivious kisses and embraces contract the malice of the circumstances of the object, just as consummated sins do. For, just as fornication with one bound by a vow of chastity or with a relation is not simple fornication, but contracts the malice of sacrilege or incest according to the circumstances, so impure touches of the same persons would also be sacrilegious or incestuous. The reason is because sins receive their specific malice from the object, and sins of touch take their malice from the concrete object as it exists with its special circumstances.
Impure speech and looks, on the contrary, do not seem to contract the malice of the circumstances of the object, for such sins are affected by the general character of the object only, and not by its special circumstances. This, at least, is the opinion of many theologians.
It is a disputed point among divines whether impure touches, looks, talk, or reading, are specifically distinct from each other apart from any difference in the object. Would it, for example, be sufficient to say in confession, " I committed a sin by indulging in venereal pleasure by myself," without mentioning whether it was procured by touch, or look, or other means? Although the common opinion is that such a general form of self- accusation would not be sufficient, and that the penitent must say whether the sin was one of touch, or look, etc., yet the contrary view seems probable, for such imperfect acts are wrong, not precisely in themselves, but on account of their tendency to excite venereal pleasure. The reason, then, and source of their malice is the same, and so they would seem not to be specifically distinct as sins, though they are physically distinct acts.
PART VII
THE SEVENTH AND TENTH COMMANDMENTS
THE Seventh Commandment is, "Thou shalt not steal," [61] and therefore directly and explicitly it forbids theft, but implicitly it commands us to observe justice in our dealings with others. The Tenth Commandment is, " Thou shalt not covet thy neighbour's goods," [62] and so it forbids internal sins against justice. The subject-matter, then, of these commandments is the virtue of justice, of which we have now to treat.
DIVISION I
On Justice and Right
CHAPTER I
THE NATURE OF JUSTICE AND RIGHT
i. THE word "justice " is used in a variety of senses, but here it is used in its strict meaning to designate the moral virtue which inclines its possessor to give to everyone his due or his right.
The habit of giving to everyone his due from principle because it is right and proper is obviously a virtue, and it is a moral, not a theological, virtue, for its immediate motive is not God, but the natural honesty and uprightness of so acting. Justice is a moral virtue which resides in and perfects the will, not the intellect, like prudence; it inclines the will to wish and to execute what is right. Justice inclines the just man to give his due to everyone irrespective of who he may be. It does not consider the relation in which that other stands to God, or to one's self, as charity does; nor precisely what it is becoming in the just man to do, so that his actions may be worthy of himself, as does temperance, for example; it only considers what is owing to another, what is his due; and because it is the right thing that everyone should have his own, justice inclines to give it to him.
What is due to another in justice and is therefore his strict right must be distinguished from what a man has a claim to on some other ground. A poor man who cannot support himself has a claim on our help, but out of charity, not out of justice. He is our brother; he is a child of our common Father in heaven; he is destined to be a fellow- citizen with us ' for ever in the kingdom of heaven; the bond of mutual love which binds all such in one body, and makes them one big family, requires that all who can, should, out of their abundance, assist those who are in want. But this does not cause the abundance of one to belong to a needy neighbour in justice; it only prescribes that as much as is required to succour him in his necessity should be given him out of charity. A sufferer who is in pain has a claim on my sympathy and pity, not that it would be unjust to deny him my sympathy, but because pity and compassion require it of me. But when ten pounds are due to another in justice, those ten pounds belong to him; they are his property; he has a right exclusive of all others to all the benefit that can be derived from them, because they are his. Because they are his he can dispose of them as he pleases; he can put them in the bank, or spend them, or give them away; he would wrong no one even if he threw them into the sea. Anyone who steals them, or to whom he lends them, must, if he would be just, restore them to the owner, because justice requires that all should have their own.
2. We may divide the species of justice into individual or commutative and social justice.
Commutative justice regards the relations between man and man in their private and individual capacity. It supposes a perfect distinction of rights between them, and prescribes that these should 'be duly observed and respected. It exists between physical and moral persons alike, or between a physical and a moral person, provided that their rights are perfectly distinct from each other.
Social justice regulates the mutual relations between the individual and the society or State to which he belongs. As a member of society the individual has certain duties toward it; he must contribute his share to the common burdens; he must be ready to defend the common weal at the call of authority; he must obey just and equitable laws. This duty of rendering to the State what is its due is called legal justice. On the other hand, the State has its obligations toward its subjects; it must distribute burdens, honours, and rewards equitably without showing favour to particular classes and persons; not indeed with absolute arithmetical equality all round, but according to respective merits. The virtue which should regulate the distribution of burdens and rewards among its subjects by the State is called distributive justice. To such as have committed crime and injured the common weal the State metes out condign punishment according as vindictive justice demands.
There is a difference of opinion among Catholic writers as to whether legal, distributive, and vindictive justice, which we have grouped together under the name of social justice, are really subordinate species of the virtue, or whether commutative justice is the only species that may in strictness be so called. Whatever view be taken we must allow that in commutative justice alone is there a perfect distinction between debtor and creditor; it alone observes arithmetical equality in satisfying its obligations; it alone binds to restitution after being violated. In social justice, on the contrary, there is no perfect distinction between the State and its subjects; social justice does not prescribe the observance of arithmetical equality, nor does its violation bind to restitution, except when by the same act commutative justice has also been infringed.
3. That which in justice is due to me is my right, as it is called. I have a right to my life, to my good name, to my property; and anyone who deprives me of these rights is .guilty of injustice. Rights, then, are the subject-matter of justice, and in this, its strict sense, a right may be defined as a moral power of having, doing, or exacting something.
It is said to be a moral power to distinguish it from the mere physical capacity of brute force, which confers no rights of itself. It is a moral power which may not without injustice be interfered with. It is the power of having and possessing as one's own something which man values and which serves his convenience and wants; or of doing something, of giving scope to his bodily or mental activity; or of exacting some service as due to him from another.
A right is in re or ad rem. A right in re is a right which one has to something determined and already his own. In order that one may have a right in re the object must already exist; it must not be merely possible or future; it must be determined and separate; it must belong to the person by a title of justice so that it is his. If one of these conditions is wanting but notwithstanding someone has a claim in justice that something should become his property, he has a right ad rem to it. Thus a farmer has a right in re to his harvest after he has gathered it; before it has grown he has only a right a d rem. The right of a servant to his wages is ad rem until they are paid; after they are paid his right is in re.
A right in re seems to be practically equivalent to ownership (dominium). Ownership is absolute or qualified. Absolute ownership is the unlimited power of disposing of a thing for one's own benefit. The absolute owner of a horse may use him, sell him, give him away, or kill him, without violating justice; he may do what he likes with his own. If ownership is limited in some way so that the owner has not a right to all the uses to which the object may be put, the ownership is qualified. Qualified ownership of the thing while its use belongs to someone else is called direct; qualified ownership of the use of what belongs to someone else is called indirect ownership.
According to English law, a subject is incapable of absolute ownership of realty; he is only capable of a qualified ownership therein, although to all intents and purposes an estate in fee simple is equivalent to absolute ownership. A qualified property of many {different kinds may be [had in realty, and both an absolute and qualified property of many different sorts may be had in movables. The various kinds of property, especially in immovables, are recognized and determined by law, which enforces the rights and obligations annexed thereto. In different systems of law there will be different kinds of property recognized. It will be sufficient for our purpose merely to mention ususfructus, usus, habitatio, servitus, of the Roman and canon law.
In English law the quantity of interest which a man has in lands and tenements is called an estate, of which there is a great variety: equitable and legal estates; estates of inheritance and not of inheritance; estates of freehold interest and less than freehold, such as estates for years, estates at will, and estates at sufferance.
CHAPTER II
OBJECTS OF OWNERSHIP
i. WE will here consider the various objects which can be owned by men, and to the exclusive use of which they can lay claim as being due to them in justice. We saw above that God has reserved to himself the dominion of human life; he is the God of life and of death, so that an injury is done to God by suicide or by unjustifiable homicide. Not even the State can have the absolute ownership of human life; it can never directly kill the innocent, although, as far as the common good demands it, the State may take the life of malefactors, and may require that each and all should be ready to defend the common weal even at the risk of life itself. No one, then, but God has the absolute ownership of human life or of man's limbs and members.
Each one, however, has a qualified ownership in the faculties which God has given him. His activities of mind and body have been granted to man that by using them in a proper way he may do good and avoid evil, and thus secure the end of human existence. A man, therefore, is under the obligation imposed by God of making use of his mental and bodily faculties, and he has a consequent right to do so, as far as he does not thereby injure others.
When man by his labour has produced something which serves his wants and convenience, he has a right to the fruit of his toil; this is his property, and he cannot be deprived of it without injustice. This applies to what he has produced with his own toil, out of his own material, with his own resources.
A man's reputation, then, inasmuch as it is the fruit of his merit and industry, is his property, and he cannot be unwarrantably deprived of it without injustice. He may, however, surrender it himself for good reason; he may write his confessions, like St Augustine, for the purpose of self-humiliation and for the instruction and edification of others; otherwise he must have a care of his own good name, without which he can do little good, and may do great harm to others.
2. Similarly, by the law of nature a book, design, or composition belongs to the author, and a new invention to the inventor. These things and others of the same kind are the fruit of the author's or inventor's thought and labour, and anyone who stole them and published them without their owner's consent would commit a sin against justice.
Among modern civilized nations these rights are protected by municipal laws and international agreements, and, inasmuch as these determine the vague and uncertain prescriptions of the natural law, they bind in conscience.
The exclusive right of printing or otherwise multiplying copies of books, etc., is called in English' law copyright. It extends not only to books, but to every volume, part, or division of a volume, pamphlet, sheet of letterpress, sheet of music, map, chart, or plan separately printed; to engravings, prints, sculpture, models, busts, paintings, drawings, photographs, designs, dramatic and musical representations.
Copyright is protected throughout, the British dominions and the principal countries of Europe, which form the Copyright Union. On certain conditions copyright is now protected in the United States of America, and foreign authors may acquire copyright within the States by complying with those conditions.
English law grants copyright for the author's natural life and for fifty years longer.
In the United States the original terms run for twenty- eight years; it may, however, be renewed for a further term of fourteen years, making forty-two years in all.
In the same way patent right, or the right of the inventor to reap the benefit of a new contrivance, is protected in England on certain conditions for fourteen years, which protection may be extended for a further period of seven or fourteen years if the inventor has not yet reaped the full benefit of his invention, and such patent is for the public benefit. The period to which patent right extends in the United States is seventeen years.
There is a controversy among theologians as to whether the natural law of itself forbids the reissue by another without the author's consent of a book which has once been published. Some deny this on the ground that by being published, apart from the prescriptions of positive law, a book 'becomes public property, and anyone who buys a copy may make what use of it he pleases. He is merely disposing of what is his own. The contrary opinion, however, seems better grounded, for the author in publishing a book makes over indeed to the buyers of it certain advantages, but there is nothing to prevent him reserving the right of issuing it again to himself. The buyer of a copy may make the contents of the book his own and work them up again in any form of his own that he chooses; he buys the material part of the book, paper, binding, etc., and may make what use of them he pleases; but he does not purchase the right to issue the book again, and he violates justice if he does so against the author's wish. The same holds with regard to patent right.
This controversy is of little practical importance, for sufficient protection is provided in most civilized countries by positive law.
3. We saw above that no one except God can have an absolute property in man's life or members. No man, then, can become the chattel of another so that he may lawfully be disposed of like a brute beast. Christian teaching has banished such an idea from Christendom at least. On the other hand, there is no difficulty in admitting that one man may make over his services to another for as long as he pleases. Theoretically, therefore, there seems no reason for saying that slavery is against the law of nature. We here understand by the term the state of perpetual subjection of one to another so that he owes that other his life service in return for board, lodging, and clothes. Practically, great abuses usually accompanied slavery, and we must allow that it is out of harmony with the spirit of the Gospel. Chiefly through the wise and gradual action of the Church, it has ceased to exist as an institution among civilized nations. However, we must not forget that penal servitude is still the just and recognized punishment for grave crime. Merely looking at the question from the point of view of the strict law of nature, we must acknowledge that a state of slavery arising from contract, or birth, or in punishment for crime, or as the result of a just war, is not in itself immoral.
4. Animals and the earth, together with all that they produce, may become man's absolute property. God has imposed on him the obligation of maintaining himself and those who are dependent upon him, and he has a consequent right to make his own whatever is necessary and useful for that purpose, if it has not been appropriated by someone else. He has a right to provide not only for his immediate wants, but for the future also; not only for himself, but for his offspring. In other words, nature herself gives man the right of private property. This right is not given by the State; it is anterior to the State, and its preservation and defence is one of the chief reasons for the existence of the State. It may indeed be regulated by the State, as far as is necessary for the common good, but it is beyond the power of the State to do away with it. [63] No Catholic is at liberty to deny the lawfulness of private property and its necessity in the general conditions of the modern world.
Socialists, indeed, advocate the nationalization of the land and of all the means of production and exchange as a sovereign cure for the economic evils of the world. The plan militates against the right of private property; it is unworkable, and even if it could be introduced it would be no cure for existing evils, and would introduce other new ones. The fuller treatment of this, a practical question in our days, scarcely belongs to moral theology; it is not in the confessional that such questions are treated. The student should consult books on ethics, or special works written on socialism or collectivism.
CHAPTER III
WHO MAY OWN PROPERTY
SECTION I
General Principles
i. NONE but an intellectual being endowed with intellect and will can own property. For such alone, or persons as distinct from things, are the subjects of rights; persons alone can freely dispose of objects which are necessary or useful for the attainment of man's destiny. Persons alone can suffer a formal injury by the wilful violation of their rights against their will, and so they alone are capable of having rights and holding property.
2. God, who is the Creator of all things, is also their universal Lord and Master. He can do what he pleases with his own; however he may treat his creatures, they cannot complain of God's injustice toward them. He is bound only by the laws of his own infinite Goodness and Wisdom.
Other pure spirits whom God has created might conceivably have rights of ownership, but as they have no use for material things with which we are specially concerned, we need not further consider them in this connection.
3. All men, even imbeciles, who will never have the use of reason, and infants still unborn, are subjects of rights and capable of holding property. For they all require many things for their support,, preservation, and defence, for the perfect development of all their faculties, mental and bodily, and for the orderly and secure attainment of their end. As, then, they are under the obligation of striving for the attainment of their end, and they have the right to do so, they have also the right to the necessary means. This reasoning is not invalidated by the incapacity of infants and imbeciles to use their faculties and administer their property. Their rational nature gives them their rights; their capacity to use them is not a necessary condition of their existence. A man who is asleep retains his rights, though he cannot then exercise them. Besides, whatever defect there might be in the title of infants and imbeciles to the rights of men is supplied by the provisions of positive law, which confers rights of property independently of the knowledge or acceptance of the owner.
4. Inasmuch as man is a social animal, and develops his faculties in the society of his fellows, whose help he constantly needs, nature herself has given him the right to form private societies, companies, or corporations, for the furtherance of common ends, independently of that larger public society which we call the State, and to which all belong. As Leo XIII teaches: "Private societies, then, although they exist within the State, and are severally part of the State, cannot nevertheless be absolutely and as such prohibited by the State. For to enter into a society of this kind is the natural right of man; and the State is bound to protect natural rights, not to destroy them; and if it forbid its citizens to form associations, it contradicts the very principle of its own existence; for both they and it exist in virtue of the like principle namely, the natural tendency of man to dwell in society." [64]
The State, of course, has the right of control over such societies as are founded for civil purposes, and they are subject to the just laws which the State may make in their regard. English law acknowledges both corporations aggregate, consisting of more than one person united for the purpose of pursuing a common end, and corporations sole, consisting of but one person like the sovereign or the rector of a church. A corporation is a moral entity, a fictitious person, with rights of its own, distinct from the rights of the physical persons who compose it. As far as property is necessary for the attainment of its end, a corporation has the right of ownership, though this right is subject to the control and regulation of the supreme authority. Leo XIII in his encyclical on labour warmly approves of workmen forming their own unions and societies for the defence of their rights and the furtherance of their welfare.
SECTION II
Property Rights of Minors
i. Apart from positive law, a minor is capable of owning property in his own right just as if he were of full age. Considerable rights over a child's property were granted to the father by Roman law. The minor had, indeed, complete ownership of what he earned by military service or by any public office, but the usufruct of what came to the son in other ways belonged to the father. Similar rights are commonly granted to the father by those modern systems of law which are derived from the Roman. According to English law, however, the father as such has no rights over any property which belongs to his child. During the child's minority, if no trustee or guardian of his property has been appointed, the father will usually be appointed guardian, and in that capacity he is bound to administer the property for the benefit of his child, nor may he use it for his own profit.
On the other hand, English law gives no right to children to share in their father's property except in case of intestacy, differing in this also from the Roman and derived systems. The parent may by our law leave his property to whomsoever he will, unless, of course, it is entailed. If a father die intestate, one-third of his real estate, if he was possessed of any, goes to his wife as dower, unless it is barred as it is in the majority of cases; the rest goes to the eldest son or his issue, or if there were no son the rest is divided equally among the daughters. Of the personal estate of a father who died intestate one-third goes to the widow, and the other two-thirds to the children in equal shares.
2. A child who has the means is under a moral obligation of supporting his parent when he is incapable of supporting himself, and this obligation is enforced by English law.
Moreover, if a minor is earning wages the parent is not bound to support him free of cost, and until he is sixteen it would seem that the parent is justified in taking his earnings. Even after that age it may well be that an elder son or daughter who is in receipt of wages is bound to help to support younger brothers and sisters if the family is numerous. Apart from these obligations a minor acquires a full right to what he earns, and may enter into a contract with his parents for the payment of the cost of his board and lodging, reserving what is over of his wages for himself. If a minor works in his father's house no contract for wages will be presumed; he is supposed to forego them, or his keep is supposed to be an equivalent, unless an express contract for wages is entered into between them.
3. Minority ceases on the completion of the twenty-first year of the minor's age, or by emancipation. A minor is emancipated from his parents' control by marriage, by entering into religion, or when an adult child leaves the paternal household and enters the army or ordinary service as a domestic servant or labourer. [65]
Section III
Property Rights of Married Women
1. The fact that a woman marries does not of itself take away or lessen her natural capacity to possess property. Her husband is indeed the head of the family, and is presumed to be better able to administer family affairs than his wife. Moreover, the law of England used to give the husband very extensive rights over his wife's property. For in general any freehold estate of which the wife was seized at the time of the marriage, or of which she became seized afterwards, became vested in her husband and herself during the coverture, and the husband was entitled to the profits, and had the sole control and management. By marriage a husband became possessed of his wife's leaseholds in her right. He was not only entitled to the profits and management of them during the joint lives, but he could dispose of them as he pleased by any act during the coverture. The personal chattels of the wife became in general the absolute property of the husband. [66]
By degrees inroads were made on the rigour of the common law, and means were found to secure separate property to a married woman. By the Married Women's Property Acts of 1870 and 188 great changes were introduced, so that now a woman married after the first day of January, 1883, possesses as her separate estate all her property," whether acquired before or after the marriage. All women who were married before the above date similarly possess as their separate estate all property which comes to them after that date. Practically, therefore, during her life and that of her husband a married woman has rights of property as if she were single.
Furthermore, she has a right to support for herself and her children, even those of a previous marriage, at her husband's expense, according to her condition in life, and she may effect an insurance on her own or on her husband's life for her separate use.
2. Besides the foregoing advantages a married woman who survives her husband is entitled to dower, unless some act has been done to curtail her right that is, she is entitled to hold to herself, for the term of her natural life, the third part of all the lands and tenements of which he died seized in fee simple or fee tail, and of which any issue that she might have had could have been heir.[67]
If her husband dies intestate and without issue, the widow is entitled to the whole of her husband's estate, both real and personal, when such estate does not exceed five hundred pounds in value; if over that amount she takes five hundred pounds out of the real and personal estate ratably before any division is made, and after that the share in the remainder to which she was entitled before the passing of the Intestates' Estate Act, 1890.
Before the passing of this Act a widow of a husband who died intestate took one-half of the personalty if there were no children of the marriage, otherwise she took one-third. Moreover, one- third of the intestate's real property went to the wife for life. These rights, therefore, she still possesses.
3. A married woman can now make a will and leave her separate property according to law to whom she pleases. In conscience she must of course take account of the needs of her surviving relatives and of other legitimate claims on her remembrance. If she dies intestate, all her personalty goes to her husband; her realty also goes to him for life, afterwards to the only child, or to the eldest son or his issue if he be dead, or to the daughters equally.
SECTION IV
The Right of the Church to Possess Property
i . We have already seen that not only physical persons but also corporations or societies can own property. The Church is a perfect, independent, and visible society founded by Christ our Lord, and endowed by him with all the rights and privileges which are necessary to enable her to attain her end. This end is the sanctification and salvation of souls by the preaching, propagation, and exercise of the Christian religion. It is obvious that for the support of the Church's ministers and missionaries, for the building and upkeep of churches, for the decent and proper exercise of religious worship, and for numerous other purposes, ample revenues and lands are required, and, inasmuch as the Church has the obligation and the right to work for the end for which she has been founded by God, so she has the right to the necessary means. This reasoning is confirmed by the condemnation by the Popes of several false propositions bearing on the Church's right of ownership [68] (Can. 1495).
2. The general truth that the Church has a right to own movable and immovable property is certain, and does not depend for its validity on the question as to .who is the definite owner of Church property. This was a disputed question, some theologians maintaining that God is the immediate as well as the ultimate owner, inasmuch as Church property is said to be given to God; others taught that the universal Church or the Pope is the owner; others, again, that the corporations constituted by individual churches, dioceses, religious congregations, and orders are the real owners of the ecclesiastical property belonging to those institutions. This last opinion is commonly accepted nowadays, and it seems more in keeping with the intention of the donors of such property, which is usually the benefit of a particular religious institution for the honour of God, and in this sense they make their offering to God (Can.1499, sec. 2).
The administration and management of Church property belong to those ecclesiastics who have been lawfully placed over the churches, dioceses, institutes, etc., to which the property belongs; and the Pope as the supreme head of the Church on earth has the supreme administration, or the altum dommium, as it is called. [69]
3. The profits derived from ecclesiastical property should, according to the Church's law and natural equity, be devoted to those purposes for which the donors gave the property. If this cannot be done because the object for which the property was given no longer exists or for some other legitimate cause, it is for the Pope to make the needful dispositions so that the intention of the donors may be carried out as far as possible (Can. 1514).
No immovable ecclesiastical property, or even movable when it is of considerable value, may be alienated without the leave of the Holy See, and the penalty of excommunication is incurred by all who attempt to do so or to receive the same without the requisite permission. The Pope for good cause may of course alienate Church property, as he has not infrequently done, especially in times of upheaval, as after the Reformation in England and after the French Revolution (Can. 2347).
SECTION V
Property Rights of Clerics
I. We do not propose to treat here of the capacity of religious to own property; that question will be best considered when we treat of the state of religious. Here we only inquire into the property rights of the secular clergy.
The property of the clergy is divided by theologians into four kinds. What they possess as private persons, whether it has been given or bequeathed to them or they have inherited it, is called their patrimony. Quasi-patrimony is what they have obtained by the exercise of their ministry in stole fees, stipends, and casual offerings. Ecclesiastical goods are derived from the revenue of benefices. Savings are what a cleric has acquired by living sparingly and which he might have spent by living according to the ordinary standard.
Of these different kinds of property, patrimony and quasipatrimony belong to the cleric; they are his private property, of which he has the ownership just like anybody else, for he is not deprived of the right to possess property by becoming a cleric. What he saves also from what he might have spent lawfully on his support belongs to him, for the labourer is worthy of his hire; he has a strict right to a decent living from the revenues of the Church, and what he saves from the sum required for this belongs to him as his own.
There is a difficulty concerning the profits derived from his benefice if the cleric has one. He may, of course, use the income derived from this source for his maintenance according to his rank; but supposing that a balance remains over, what must he do with that? Ecclesiastical law prescribes that he must employ it for pious purposes, and must not squander it or enrich his relations with it. He is bound under pain of sin to give it to the support of religion, or to the poor, or for educational or other pious causes. If he does not do this, he certainly sins against obedience; but does he also sin against justice, and is he therefore bound to make restitution? This is a disputed question among divines. The more probable opinion is that he does not sin against justice and so is not bound to restitution; for the income derived from his benefice is his own property, and he may do what he pleases with his own, unless there be some law which restricts his free disposal of his property. In this case there is such a law, which must be observed, but which for all that does not make an act which it prohibits unjust; it only makes it unlawful (Can. 1473).
2. In English-speaking countries there are few well-endowed benefices, so that in general the clergy have to be supported by the offerings of the faithful. As Leo XIII says in his Constitution Romanos Pontiftces, May 8, 1881, the offerings of the faithful were not regarded as ecclesiastical property where religion and the clergy were sufficiently provided for from other sources. In Britain, however, the offerings of the faithful are almost the only means available for the maintenance of divine worship, the building and repair of churches and schools, the support of charitable institutions and of the clergy. Hence it becomes a matter of importance to be able to decide what offerings belong to the clergy as their own property, and what constitute ecclesiastical property and belong to the Church. Of the latter property the clergy are only the administrators, and they are bound to render an account of their administration to their superiors and to God. Rules for settling what offerings are private and what ecclesiastical property were drawn up by the Second Provincial Synod of Westminster, approved in the year 1856; and Pope Leo XIII sanctioned those rules and ordered them to be observed wherever his Constitution Romanos Pontifices should be in force. I here give Father Guy's version of the rules:
" (i) Offerings of the faithful for the propagation and ornament of religion, for the support of the clergy, the relief of the poor, and other pious uses, are considered as made to God and the Church, and the administrators or guardians of them, whether ecclesiastics or laymen, are to be deemed merely dispensers of them, under an obligation of rendering an account to God of their stewardship. As here now it is required among the dispensers that a man be found faithful in those things which concern the rightful administration of Church property, it seems proper that in this synod we should treat this matter more fully, inasmuch as having been occupied with matters more important in the First Provincial Council, we deferred the consideration of this subject to a more convenient opportunity.
" (2) Every effort must be made to determine, if there be any doubt, the intention and purpose of the donor or testator of each fund, and that the proceeds of it may be rigidly applied to the use prescribed by him.
" (3) If this intention cannot be ascertained from any trustworthy document, rules or canons by which a safe judgement may be formed in such cases should be observed.
" (4) Whenever a church or school or any other building intended for religious uses is erected or provided, either wholly or in part, from money contributed by the faithful, or granted by any society administering the alms of pious Catholics, every edifice of this kind is to be considered as belonging for ever to the place where it stands.
" (5) The same judgement must be passed on buildings erected by any benefactor, unless it is clearly proved that he made a declaration that in erecting such an edifice he did not intend it for the advantage of the faithful of that place, but that he wished to confer a benefit on some particular order. The rules laid down in this and the preceding number as to rights in foundations are in the case of Regulars to be applied to new foundations only.
" (6) But the Bishop shall not be allowed on this account to take away a mission lawfully entrusted to any religious order. These rules regard merely a case in which a religious body either cannot or will not retain the care of a mission for example, if a superior remove it to some other place, or for any other reason it there cease to exist altogether and not for a time only.
" (7) If, however, any mission be founded altogether or for the most part by funds belonging to any religious body, which for good reasons may wish to leave entirely and go elsewhere, we recommend that a distinct agreement be made between the Bishop and the superiors of the order as to what has to be done; so that on the one hand just rights may not suffer, and on the other no scandal may arise nor grievous loss of souls ensue.
" (8) Much less is it lawful for any cleric, or even for the Bishop himself, to alienate Church property, as is evident from almost numberless decrees of canon law. If, however, on account of reasons approved of by the canons, such an alienation become necessary, the priest can never act in this matter without the authority of the Bishop, nor the Bishop without the precautions required by canon law.
" (9) In every mission where money is contributed by the faithful in the ways hereafter described it is to be accounted Church property, and not a donation to the priest. For from this money he must provide not only for his own decent support, but for the expense of religious worship, for the maintenance of the fabric, for payment of debts, where there are any, and for other wants. Wherefore, if any priest leave a mission during the course of the year, he has not a right to his proportion of the yearly income until the amount justly due for expenses be deducted. In like manner, what he has provided for the use of the church from the income of the church for example, wax candles, wine for the most holy Sacrifice, sacred furniture these he should leave behind him, without any compensation, unless he can clearly show that the supply is excessive.
" (10) All are aware that there are now in operation different methods of raising money for the support of missions. The following in particular we do not disapprove of, till the charity of the faithful shall provide in a better way. They are: (a) Letting of seats or places in the church to certain persons or families at a fixed rent to be paid to the church, (b) Church collections made at the Offertory, (c) According to a custom prevailing generally in England, payment of a fixed sum, according to the part of the church which they occupy, by those who do not rent seats, yet are not content to occupy what is called the free space, (d) Sermons by some distinguished preacher of the word of God, after which the alms of the congregation, whose number is often swelled by a concourse of strangers, are collected for the general or particular use of the church or for some special purpose, (e) Collections which are either made from house to house, by persons appointed for the purpose, or by societies and confraternities lawfully appointed, or which are gathered from tens or hundreds as is done in the excellent society called the Society for the Propagation of the Faith, or contributions made by the more wealthy portion of the congregation at fixed times or yearly.
" (11) Although it is certainly much to be desired that many of these methods of maintaining the Church were done away with, yet experience has taught that it is as yet impossible altogether to dispense with them. Wherefore, in those places where one or more of these methods prevail, they ought to be so kept on that no innovations be introduced without the authority of the Bishop. Especially the free space should not be diminished nor narrowed without consulting him. But whatever money comes to the mission by these means, it should be considered as belonging not to the priest personally, but to the general wants of the mission. Therefore, whatever furniture, either sacred or domestic, he acquires from these sources, or whatever he expends in keeping in repair the church or other buildings in any way belonging to it, in this expenditure he is not making provision for himself, but is providing for the mission from mission property.
" (12) As soon, therefore, as any priest enters on a mission, an inventory of all property belonging to the mission should be placed in his hands by the dean or by someone deputed by the Bishop. The missionary is bound to keep the furniture and buildings in good repair, yea, rather to improve them, that he may deliver to his successor as much at least as he received himself. Should he provide for the renewing of what is grown old and mean, or procure something new and more elegant to ornament the place, a distinction must be made as regards the sources from which the expense is defrayed. (a) If the priest has procured these things from his own property, or from the gifts of friends well disposed towards him, or in fine, from that portion of the income of the church which he might have expended on his own decent maintenance, they are to be considered as his own property, provided he has kept all that he received in good order. (6) But if these things were procured out of the general revenues of the church, or by gifts and collections from the congregation, or by money granted by the Bishop or the administrators of the temporalities of the diocese, they are to be deemed entirely the property of the mission, nor is it lawful for the priest on any account to claim them.
" (13) It is also to be generally understood according to a rule of canon law that things adapted for ecclesiastical purposes given to a missionary are, unless there is proof to the contrary, given to the mission; but things adapted for personal use are presumed to be given to the priest personally, as, are also such church things as are given by a flock to a priest as tokens of gratitude or affection.
" (14) Retributions for Masses are the property of the priest. In like manner, where it is the custom, which is a very ancient one in England, of making presents to each priest at Easter and Christmas, these gifts of right belong to them. But the priest should be on his guard lest he incur the suspicion of avarice, by receiving anything on account of his administering the sacrament of Penance.
" (15) As to the application of money derived from stole fees, there is no uniform practice throughout the whole Church. For though the Church detests all filthy lucre in extorting or exacting money for the administration of the sacraments, yet the Council of Lateran, held under Innocent III in the year 1215, prescribed that the laudable customs in accordance with which offerings were made by the faithful to the ministers of the altar, on occasion of the administration of the sacraments, should be observed. The proceeds derived from this source should be ordinarily considered as belonging to the priests; though they are distributed in different ways in different places. That distribution seems to be the best which is most conducive to alleviate the burthens of the mission.
" (16) Whilst, therefore, we forbid anything to be asked for and much more anything to be exacted before the celebration of baptism and matrimony, and even after the celebration as a right, we leave it to the prudence of Bishops to determine in their diocesan synods what seems best adapted to the customs and state of places. Especially should they most vigilantly correct all abuses, if any exist, as to the amount or to the exaction of these offerings, by enforcing everywhere an equitable arrangement."
These provisions seem to be in harmony with Canons 1182, 1519-1528, etc., of the new Code, and so it would seem that they are still in force.
CHAPTER IV
ON TITLE TO PROPERTY
TITLE is a cause sufficient to confer property in a thing. There are several kinds of title, some derived from the natural law, others due to positive law, and others which have their effect from the will of private -persons. They may be reduced to title by occupation, by accession, by prescription, and by contract. On account of its importance and the abundance of material we will treat of contract in a separate Book; the other three titles must be considered here.
SECTION I
On Occupation
i. Occupation is the taking possession of some material thing with the intention of making it one's own. It will be a lawful title to ownership of property if the thing occupied had previously no owner, and actual possession is taken of it with the purpose of making it one's own. If these conditions be fulfilled, it seems useless to investigate further how occupation is capable of conferring property. Whether the fact of occupation sanctioned by the community is sufficient, or whether we say that by occupation a man's latour is mingled with the thing, and thus the connection of ownership is set up, is really immaterial. It is a title universally acknowledged and is derived from Nature herself.
As is clear from the definition, there cannot be occupation without actual, or at least constructive, taking possession of the thing, whether it be movable or immovable; it is not sufficient merely to see the thing at a distance, nor is it enough to take hold of it with the intention of seeing what it is, without any idea of retaining it for one's own.
Most things of value, especially the land, have owners already, and so a title to ownership by occupation can only arise with reference to certain classes of property which are not of very great importance. In moral theology this title is at the root of ownership derived from finding lost property, treasure-trove, and the capture of fish and wild animals. Here English law only partially agrees with what seems safe in conscience.
2. The finding of things of value without an owner confers ownership in the things found if they be taken possession of with the intention of making them one's own. Whether they ever had an owner or not is immaterial in conscience, provided that they have none at present. English law, indeed, grants property which belonged to someone who died intestate and without heirs to the Crown, under the name of bona vacantia, and when such property is claimed by the Crown, its title of course prevails. If the Crown does not claim the property, the first who should occupy it would seem to be safe in conscience if he kept it. The same doctrine may be applied to wreck found, which positive law requires to be delivered to the receiver of the district, and this officer, if no owner appear within a year, sells the same and pays the proceeds into the Exchequer. '
3. Any money, coin, gold, silver, plate, or bullion, found hidden in the earth or other private place, the owner thereof being unknown, is called treasure-trove. By English law it belongs to the Crown, but if the Crown does not claim it, the finder would be justified in keeping it.
4. One who finds property that has recently been lost may be bound in charity to take possession of it and try to discover the owner, but there is no obligation to do so in justice. If, however, he take possession of it, he is bound in justice to take reasonable care of it, and to use ordinary diligence to discover the true owner. On the true owner being discovered the finder has a right to be compensated for any expenses he has been put to in consequence of keeping the property, but he must deliver it up to the owner. As English law does not grant prescription in movables, this doctrine will hold even though the owner be discovered after the lapse of years; if the property still remains intact or in its equivalent, it belongs to the original owner and must be restored to him. The finder of lost property acquires thereby a qualified property in it which is valid against all save the true owner, and if the true owner cannot be discovered within a reasonable time, the title of the finder becomes absolute, and he may use it as his own.
5. Animals are either domestic, tamed, or wild. The property in domestic animals such as dogs, sheep, kine, pigs, always remain with the owner, however much they may stray, as long as they are not so utterly lost that there is no hope of finding the owner. Such animals always belong to their original owner as long as he can assert his ownership over them, in the same way as his household furniture belongs to him. Wild animals which enjoy their natural liberty and go where they please belong as a general rule to him who first captures or kills them. Such a one makes them his own by occupation, for before he took them they belonged to no one. English law has modified this general rule to some extent, for if a trespasser capture or kill a wild animal on another person's land, it belongs to the owner of the soil on which it has been started and killed; if a trespasser start an animal on one person's property and kill it on another's, it belongs to the owner of the former. These rules of positive law give the owner of the property at least the right to vindicate his claim, which cannot then be lawfully resisted by the trespasser.
Animals which have been tamed, such as pigeons, bees, young pheasants that have been hatched under hens, belong to their owner as long as they retain the habit of returning to his premises, but if they lose that habit and recover their natural liberty, they belong to the first who takes them, like wild animals. Animals which are enclosed like deer in a park, rabbits in a warren, or fish in a pond, belong to the owner of the enclosure, as long as he can exert his control over them. If they recover their natural liberty, they are primi occupantis.
A poacher may be guilty of sin by damaging the property of another by trespassing on it, and from the fact that he exposes himself to grave personal risk or to the danger of violently resisting lawful authority if he is caught. By the mere fact of capturing wild animals he does not commit a sin against justice, unless he kills so many in a particular property that the right of killing game therein is seriously lessened in value, and the owner in consequence suffers considerable loss, because, for example, he cannot let it at so high a price.
SECTION II
On Accession
i. Accession is the increase of property either by natural production or by the union of one thing with another. When this takes place, legal and moral questions arise as to the owner of the increase. There are two leading maxims which settle such questions, Res fructificat domino and Accessorium sequitur principale. The maxim Res fructificat domino seems to follow necessarily from the nature of property and ownership, for he who has the absolute ownership of something has a right to reap the benefit of all that it is, of all its activities, and of all that it produces. And so if the field is mine, I have a right to the grass, wood, or other commodity which it produces. If the tree is mine, I have a right to the fruit; if the mare is mine, I have a right to the foal; in the latter case the maxim Partus sequitur ventrem is also applied.
Jurists and theologians divide fruits into natural, industrial, mixed, and civil. Natural are such as grass, which grows without human labour and care; industrial are the product of industry, as a book or a new invention; mixed are partly natural, partly industrial, as a crop of wheat or potatoes; civil are such artificial fruits as rent from houses and land, interest from money lent. In all these cases the maxim may be applied, Res fructificat domino. In the case of mixed fruits, if the material belongs to the labourer the whole produce will belong to him; if the material, the field for example, belongs to someone else, then the owner of the field and the labourer whose labour aided in the production of the crop have each their right to a portion of the produce. Whether the crop be divided, or a money equivalent be paid to one or the other, is immaterial.
With regard to improvements made on land or in houses, the general rule is that, Quidquid solo inaedificatur, plantatur, seritur, solo cedit. However, first of all by custom, and in modern times by statute, an outgoing tenant has a right to compensation for the improvements he has made on his holding, provided that certain conditions have been fulfilled.
2. When one thing is added to another, the general rule is that what is accessory becomes the property of the owner of what is principal. And so the owner of land has the property in gradual increments made to it by alluvion; an island formed in a river belongs to the owner of the bed. If a river suddenly changes its course, or the sea suddenly retires, the rule does not hold; the ownership remaining as before. If wood belonging to another has been used in a building, the property is transferred to the owner of the building, with the obligation of making compensation for the wood. Similarly a painting on another's canvas belongs to the painter, but he must pay for the canvas. When a new form has been introduced into the material, as by baking bread, making wine or oil, the product belongs to the workman, but compensation must be made for the material. The ownership is then said to be acquired by specification. When liquids or solids belonging to different owners have been mixed, they should be separated if possible, and each owner will retain his separate property. If this is impossible, the former owners still retain their right to a proportionate part of the whole or to its value.
SECTION III
On Prescription
1. As the term is used here in moral theology, prescription is a title by which the ownership of property is gained or lost through adverse possession during the time and in the manner laid down by law.
In English law the term prescription is only used with reference to incorporeal hereditaments—i.e., rights and profits annexed to or issuing out of land. Of these the chief are advowsons, tithes, commons, ways, watercourses, lights, offices, dignities, franchises, pensions, annuities, and rents. Land and movables cannot be claimed by prescription. However, the Statute of Limitation, 3 & 4 William IV, c. 27, and the Real Property Limitation Act, 1874, have the same practical effect as Prescription Acts, with regard to real property, and it will be convenient to consider them here as such.
The mere possession of property belonging to another even for a lifetime would not of itself transfer the ownership to the possessor. But as it is so much easier to prove possession than ownership, and because those who have been in peaceful possession of property for a long time should, not be liable to be unwarrantably disturbed, and, moreover, in order that owners of property may look after their rights, the legislature has authority to confer a right to property, in consideration of long and peaceable possession. This is what both ecclesiastical and civil laws of prescription do, and these laws avail not only in the external forum, but also in the forum of conscience.
2. In order that ownership of property may be transferred by prescription, certain conditions are requisite either from the nature of the case or by positive law. Theologians usually reckon five such conditions viz.: (a) the property must be such as the law allows to be prescribed; (b) there must be good faith in him who prescribes; (c) consequently there must be some sort of title; (d) there must be possession (e) for the time required by law.
(a) As prescription depends for its validity on positive law, there can be no prescription which the law does not recognize. English law does not recognize any title to movables by prescription, as we have already seen. Ecclesiastical law acknowledges a right of prescription to both movables and immovables. Inasmuch as laymen cannot hold benefices, they cannot gain a title to them by prescription, though clerics may do so.
(b) Good faith is the second condition required for prescription. English law does not expressly require good faith, but it is certainly required in conscience. He who prescribes must not know that the property which is in his possession belongs to someone else; if he knows this, he can never become its owner by prescription. This was defined by the Fourth Council of Lateran, c. 4[70] , and the reason is plain. [71] For as soon as anyone is conscious that he has something which belongs to another, he is bound to restore it to the owner, and the longer he keeps it against the owner's will the more grievous sin of theft does he commit. Positive law could not by prescription transfer another's property to one who was in bad faith, for such a law would not be for the common good, but would foster crime. The user, then, by which property is acquired by prescription must be without the consciousness of wrongdoing; in one who frees his property from a servitude by prescription, there will be good faith if he put no obstacle in the way of the other's enjoying his right; he is not required to warn him that prescription is running against him. If during the time required for prescription a doubt about the right to the property occurs to the possessor, he must make all needful inquiries, and satisfy his conscience that at least no one else has a certain title to the property in question.
The time during which a predecessor in title held possession of the property may be reckoned together with the period during which the present possessor has held it in order to complete the time required for prescription, if possession was always held in good faith. Even if a predecessor in title was in bad faith, this will not prevent a successor from gaining a title by prescription, provided that the latter possesses the property in good faith for the full time required by law.
(c) Inasmuch as good faith is required, as we have seen, and this cannot exist without some colourable, supposed, or at least presumed title, the third condition requisite for prescription is some sort of title. The quality ot the title affects the period of time required for prescription by ecclesiastical law, as we shall see; no special title is expressly required by English law.
(d) No prescription can be had without uninterrupted, open, and peaceable possession. The prescription must be nee vi, nee clam, nee precario. It is precisely the possession for the period required that furnishes the ground for the transference of ownership by prescription. When the term is up the property is vested in the possessor, who acquires also a right to all the fruits, if any, which he has meantime reaped from the property; for what is accessory follows the principal.
(e) Different systems of law require different periods of time for prescription, and the time varies with different kinds of property.
A great change in the ecclesiastical law of prescription was made by the new Code, as is clear from Canon 1508, which is as follows: " The Church accepts for ecclesiastical property prescription as a mode of acquisition and of freeing one's self from burdens as it exists in the civil legislation of each nation respectively, with the exceptions laid down in the following canons." Canon 1509 exempts certain classes of property from prescription, Canon 1510 lays down that sacred things in the possession of private persons can be prescribed by private persons, but that sacred things which are not in the ownership of private persons can only be prescribed by a moral ecclesiastical person against another moral ecclesiastical person. In general one hundred years are required to prescribe against the Apostolic See, and thirty years are required to prescribe against other ecclesiastical moral persons, according to Canon 1511.
The term required by English law for the acquisition of rights by prescription varies according to circumstances. At common law, time immemorial was required to establish a prescriptive right, but the Prescription Act, 1832, provided that with respect to rights of common, and all other profits or benefits to be taken and enjoyed from or upon any land, where there shall have been an enjoyment of them by any person claiming right thereto without interruption for thirty years next before the commencement of any action upon the subject the prescriptive claim shall no longer be defeated by showing only that the enjoyment commenced at a period subsequent to the era of legal memory. It is also provided that the time during which the adverse party shall have been an infant, idiot, non compos mentis, or tenant for life, or during which any action as to the claim shall have been pending and diligently prosecuted, shall be excluded in the computation of the period of thirty years. But where there has been an enjoyment for sixty years the claim is to be absolute and indefeasible.
Rights of way and other easements, or any watercourse, or the use of any water, to be enjoyed upon, over, or from any land or water, and also as to the access or use of light to and for any dwelling-house, workshop, or other building, are prescribed after twenty or at least forty years, instead of thirty and sixty respectively. An uninterrupted enjoyment of lights for twenty years constitutes an absolute and indefeasible right to them.
3. Prescriptive rights may be extinguished by abandonment, express or implied; and after a period of twenty years' nonuse, or sometimes even after a shorter period, abandonment will regularly be presumed. They are also extinguished by operation of law when the dominant and servient tenements come info the possession of the same owner in fee.
As we have seen, the right to real property is by the Real Property Limitation Act, 1874, extinguished after twelve years' adverse possession. The Limitation Acts which affect the ownership of real property differ from other Limitation Acts which concern personal property or a right of action in that the latter only bar the remedy after the lapse of the time fixed by law; they do not take away the right; the former, on the contrary, extinguish the right.
The conditions for prescription in the United States are in general the same as in England, except that as a rule a period of twenty years is necessary and sufficient to acquire both land and incorporeal hereditaments, and also to extinguish those rights. In some States squatters who have cultivated plots of land in good faith may become owners of them by prescription in a shorter space of time than twenty years.
The subject of prescription is a thorny one in English law, and it would be imprudent for a confessor not otherwise specially skilled to venture to determine questions of right by prescription. What has been said will, it is hoped, enable him to judge how far conscience may follow the law, and when a penitent should be recommended to consult a lawyer.
DIVISION II
The Violation of Justice
CHAPTER I
ON INJURIES IN GENERAL
1. The wide term injustice may be used to designate any violation of justice, whether it be legal, distributive, or commutative. Sins against legal justice are committed by doing anything against the common good of the society to which one belongs, or by neglecting to do what the common good requires to be performed. Such sins may be committed by rulers and by subjects, more frequently, however, by the former, inasmuch as the common good is specially entrusted to their care and guardianship. As the separate members of a society constitute that society, it is obvious that there is not a perfect and adequate distinction between a society and its members. In legal justice, therefore, which regulates the relations which ought to subsist between men and the society to which they belong, there is something wanting to the complete distinction of persons required in order that the obligations of strict justice may subsist between them. A violation, then, of legal justice is not a sin against justice in the strict and full sense.
Distributive justice prescribes that the ruler divide common burdens and emoluments among his subjects according to their capacity and merits. Before they are assigned to each one, no one has a strict right to any determinate share of them, and so a distribution of burdens and favours which is not according to merit is not against strict justice. A ruler who in his distribution of offices and burdens shows undue favour to some to the detriment of others' sins indeed against strict justice if he thereby cause damage to the community, for strict justice and the implicit agreement which he made on assuming his office forbid him to do that. If, however, no special injury accrues to the community through his showing undue preference for some of his subjects, he commits a sin which is called acceptation of persons, but he does not sin against strict justice. On the other hand, one who violates particular or commutative justice deprives another of his strict right. Such a sin is called an injury, which may be defined to be the violation of the strict right of another against his reasonable will.
Such an injury is formal if it is committed knowingly and wilfully, otherwise it is material.
A personal injury is committed against rights which are intrinsic to the person, such as the right to life, liberty, good name, and honour. A real injury is committed against the property of another.
2. Personal injuries are treated of elsewhere under the Fifth and Eighth Commandments; here we consider more especially real injuries done to the property of another.
There are three different species of real injuries robbery, theft, and simple damnification. Robbery, besides injury to property, includes also a personal injury, which consists in violence offered to another by forcibly depriving him of what is his. Simple damnification is the causing of damage to the property of another without taking away any of that property. Theft is the secret taking away of the property of another against his reasonable will.
3. No action is an injury unless it is against the reasonable will of the injured person, scienti et volenti non fit injuria, according to the twenty- seventh rule of law in the Sixth Book of the Decretals. The reason is obvious; because a person may as a rule renounce his rights, and then an action contrary to them ceases to be a violation of justice. It is no longer a depriving another of what is his; it has ceased to belong to him. There are, however, some rights which are inalienable, and actions against these will be contrary to justice even if the party wronged give his consent. No one can validly renounce his right to life, and so the private killing of another, even with his consent, except in lawful self-defence, is always murder. Similarly, marital rights of married people are inalienable, and, even if the husband consent, a wife's adultery is always adultery. The maxim, then, must be understood of rights which the owner can validly forego, and it asserts that no injury is done by acting against rights which the possessor with full knowledge and with perfect freedom does forego.
CHAPTER II
ON THEFT
I. THEFT, as we have seen, is the secret taking away of what belongs to another against his reasonable wish.
Not only the taking away, but also the keeping of what belongs to another against his reasonable wish is theft, as when a borrower fails to return what has been lent him on the day appointed, to the disappointment of the lender. Moreover, the use of, or any unlawful dealing with, the property of another against his wish is theft, as when a tramp makes himself at home for the night on another's premises, or when a passenger travels on the railway or tram without paying his fare.
In order that a sin of theft may be committed, the owner of the property must be unwilling that it should be thus dealt with by the thief; there is no theft committed by using another's property if the user knows that the owner would not object. Moreover, he must be reasonably unwilling, and so a man who is in danger of dying from starvation, or who is in extreme necessity of any other kind, may take or use what is necessary to save life, even if the owner be unwilling that he should do so. The reason of this is that, by the primary intention of our Creator and Lord, material things were created for the preservation of human life, and no rights of ownership can prevail against the higher claim of one who is in extreme necessity.
2. The sin of theft is of itself grievous, as is clear from the fact that it is against justice and charity; and St Paul classes it among the sins which shut the kingdom of heaven to the sinner.[72] However, like other sins of injustice, it is sometimes venial on account of light matter, and a practical question here arises as to when theft is a mortal sin, and when it is only venial. The same question is put in other words when we ask, What amount must be taken to constitute a mortal sin of theft?
3. Theologians are agreed that we must distinguish between the absolute sum, the taking of which is as a general rule necessary and sufficient in all cases to constitute grave matter, and the relative sum, which will be sufficient for grave matter, regard being had to the loss of the owner. The general principle on which the quantity required for grave sins depends is the damage caused by the theft. For it is a grave sin to cause grave damage without a just reason; but in the case of very rich persons or companies we must consider not only the personal and particular damage done to them by theft of what belongs to them, but also the harm done to society. It may well be that a rich millionaire would not be appreciably worse off for the loss of a hundred pounds or of ten times that sum. The damage done to him by a thief taking a hundred pounds would be relatively less than if sixpence were taken from a day labourer. However, we must also consider the harm done by theft to the community and to the security of property. The malice of sin is not measured merely by the harm done to the individual; the harm done to society and other considerations also enter into the estimate. We must, then, besides considering the damage done to the owner of stolen money, weigh also the harm which theft does to society. And if grave harm is caused to society by stealing a certain sum of money, if the security of property would be seriously imperilled unless the theft of a certain sum were forbidden under pain of mortal sin, that sum will be the absolute quantity required for a mortal sin of theft. What the precise sum is must be left to the judgement of experts, who will consider all the circumstances of time and place, for, as values are perpetually changing, the sum required for a mortal sin of theft will also change. Under present circumstances, in civilized countries where similar conditions of commerce prevail, the common opinion of theologians fixes one pound sterling as the absolute sum required for a grave sin of theft. This will serve, therefore, as a measure of the gravity of theft from very rich people, or from companies with large resources.
However, a mortal sin of theft may be committed by stealing a much less sum than one pound if the theft cause great harm to the owner of what is stolen. The loss of a day's wage or of a sum which is sufficient for the support of a labourer and his family for a day, is a serious loss for a workman, and so, as the common opinion holds, the theft of such a sum from a labouring man is a grave sin. Something between this and the absolute sum will be grave matter if stolen from persons whose wealth is between the two extremes.
Matter which in itself is grave may become light on account of special circumstances. Thus although grave necessity does not excuse theft, yet it may lessen the sin and cause to be venial what would otherwise be mortal. In the same way, less unwillingness on the part of the owner may lessen the sin. A father is less unwilling as a rule that a little of his money should be taken by a member of his family, especially if it is for a good purpose, than by a common thief. On this ground some divines say that in thefts from parents a double quantity is required for grave matter. Also when a number of small thefts are committed, which in the aggregate amount to grave matter, a larger sum is required for a mortal sin than when it is all taken at once. For the loss is not felt so keenly, and so the owner is not so unwilling.
4. That small thefts may coalesce and constitute grave matter is certain, for by a number of small thefts grave harm may be done, and the opposite opinion is implicitly condemned by the 38th proposition condemned by Innocent XI. Small thefts coalesce if the intention of the thief is to take a considerable sum, but for some special reason he takes it in small quantities at different times. Similarly, if a number conspire together to steal from another, they will all commit grave sin if grave damage be inflicted, even though each one only, obtains a small sum. Also, when the proceeds of pilferings are hoarded, grave sin will be committed when grave matter is reached, or even if the proceeds be spent and do not coalesce by accession as in the preceding case, the different pilferings will coalesce and constitute one moral act of injustice if the interval be not notable not over two months as some theologians say. -On the other hand, small thefts committed at wide intervals of time, and which do not coalesce on account of any of the reasons given above, do not constitute one moral act, and remain so many venial sins of theft.
The theft of something of small money value, but whose loss is very keenly felt for reasons of affection or association, will be a venial sin against justice, but a mortal sin against charity, if it was foreseen that its loss would cause very serious pain to the owner.
DIVISION III
On Restitution
CHAPTER I
ON RESTITUTION IN GENERAL
WHEN other sins have been committed they are blotted out and reparation as far as possible is made for them by sincere sorrow and repentance. But when commutative justice has been violated it is not sufficient to be sorry for the injustice done; reparation must be made for it by putting, as far as possible, the person injured in the same condition as he would have been if the injury had never been inflicted. This reparation for an injury that has been done to another is called restitution. There is a strict obligation in justice to make restitution as far as is possible to another whom one has injured; for justice requires that each one should have his own; but one who has been injured is deprived of his own so long as restitution has not been made; and so, in order that each one may have his own, in order that that equality may be preserved which justice prescribes, restitution is of strict obligation whenever commutative justice has been violated. It is an obligation of justice, and so it is a grave one, unless the matter be light.
As justice may be violated either by taking away from another what belongs to him, or by damaging or destroying his property, so we may consider restitution as being due either because one has what belongs to another, or because he has inflicted on him unjust damage and loss. These are called by theologians the roots of restitution. We will treat of them successively, and finally of the obligation of making restitution on account of co-operation in injustice.
CHAPTER II
THE FIRST ROOT OF RESTITUTION
THE first root of restitution is the possession of another person's property without any just title. This possession may hitherto have been in good faith without any suspicion that the property belonged to somebody else, or it may have been in bad faith with the knowledge that someone else was the rightful owner, or in doubtful faith with doubts about the ownership. The obligations of the possessor of another's property will be different in these three cases. We will treat of them in the three following sections:
SECTION I
Possession of Another's Property in Good Faith
1. When one discovers that he is in possession without any just title of what belongs to someone else, justice requires that he should restore it to the rightful owner, or at least give the owner warning so that he may remove it at his own expense. For justice requires that all should have their own, res clamat domino, and if one knowingly detains what belongs to another against the owner's reasonable wish he commits the sin of theft.
If the possessor of another's property consumed it while he was in good faith, and now when he finds out the truth, he neither has the property itself nor its equivalent, he is bound to nothing, res perit domino. The property no longer exists, and cannot be restored to its true owner; there was no fault committed by consuming what was supposed to belong to the consumer, so there is no obligation to make compensation to the owner for his loss. This is all the more true if the property was destroyed, or perished by accident, or in the ordinary course of nature.
2. If any natural or civil fruits, derived from the property of another, still remain after the possessor has found out that the property belonged to someone else, he must restore them to the owner of the property to whom they belong, for res fructificat domino.
Fruits of his own industry acquired on occasion of his possession of the property of another, he may keep, for the labourer has a right to the fruit of his toil.
Mixed fruits, which are partly due to industry, partly to the natural or artificial fertility of the property, belong partly to the labourer, partly to the owner of the property, according to what the law may prescribe, or according to the estimate of a prudent man.
3. The foregoing rules tell us what has to be done when one discovers that he has possession of the property of another, or when such property has perished while in his possession. But suppose that while he was in good faith the possessor of another's property, he sold it to someone else, and afterwards he finds out that it was not his to sell, what are his obligations in that case?
No general answer can be given ,to this question; it will be necessary to distinguish according to several possible hypotheses.
The sale may have taken place in market overt, and then though the seller could not give a valid title to the property, yet the law does so. The Sale of Goods Act, 1893, sec. 22 makes the following provision: "Where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the [seller."
According to Indermaur, " By sale in market overt is meant selling goods in open market as opposed to selling them privately. In the country the market-place or piece of ground set apart by custom for the sale of goods is in general the only open market there; but in London, and in other towns where so warranted by custom, a sale in an open shop of proper goods is equivalent to, and in fact amounts to, sale in market overt." [73]
In spite, however, of sale in market overt, " Where goods have been stolen and the offender is prosecuted to conviction, the property in the goods so stolen revests in the person who was the owner of the goods, or his personal representative, notwithstanding any intermediate dealing with them, whether by sale in market overt or otherwise." [74]
In this case " on conviction of an offence which involves larceny, the court, if the accused has sold the property to an innocent purchaser, on restitution of the property to the owner, may order the price paid by the purchaser to be repaid to him out of any money found on the convict when arrested. This provision is in addition to that allowing compensation to a person injured by a felony." [75]
If the sale did not take place in market overt, and the stolen property has not been restored to the true owner, the seller is bound to nothing in justice, according to a very probable opinion. For the property is no longer in his possession or under his control, so he cannot restore it to the owner; if he received money for it, he received it in good faith for value, and when he has mixed it with his other moneys it would seem that he makes it his own. [76] It would seem that this is in accordance with English law: " A mesne possessor acquiring the goods innocently from the thief, and reselling before conviction, is under no obligation in trover to the original owner." [77]
It was said above that the seller is bound to nothing in justice, but if without relatively serious inconvenience to himself he can, by giving the requisite information, procure the restoration of the property to its rightful owner, he will be bound to do this out of charity.
If the property was not sold in market overt, and if it has been restored to the rightful owner, the purchaser can demand back the purchase money from the seller, rescinding the contract for failure of warranty which is implied in every such sale: " In a contract of sale, unless the circumstances of the contract are such as to show a different intention, there is: (i) An implied condition on the part of the seller that in the case of a sale he has a right to sell the goods, and that in the case of an agreement to sell he will have a right to sell the goods at the time when the property is to pass; (2) an implied warranty that the buyer shall have and enjoy quiet possession of the goods." [78]
These solutions would seem to be tenable whether the mesne possessor obtained the property in good faith by purchase or by gift, and whether he gained anything or not by selling it. For although one who possesses another's property either in itself or in its equivalent is bound to make restitution to the owner, a mesne possessor who has sold it in good faith to another no longer possesses it even in its equivalent, for the price after being mixed with his own moneys is not its equivalent; and although he is the richer by the transaction, yet it cannot be said that he is the richer unjustly, and so he is not bound to restitution. [79]
It is a disputed point among theologians whether a purchaser in good faith from a thief of stolen goods, on finding out that the goods were stolen, may return them to the seller if he cannot otherwise get back his money. It would seem that in conscience he may do so, for in so doing he does not wrong the rightful owner; he replaces the goods where he found them, so to say, and they are in no worse a position through having been for a time in his possession. He is justified in leaving them there if he cannot otherwise save himself from loss. [80] Such an action, however, might bring him into collision with the law of the country. In England it might amount to misprision of felony or be considered compounding a felony.
SECTION II
Possession of Another's Property in Bad Faith
1. When one has wrongfully had possession of another's property, well knowing that he had no right to keep it, on coming to a better frame of mind he is bound in the first place to restore the property itself to its rightful owner. Moreover, if the owner has suffered any special loss through being deprived of what belongs to him, the thief must make this good, inasmuch as he was the unjust cause of it. Furthermore, all natural or civil fruits of the property he must restore to the owner, for res fructificat domino; and if they have been consumed, their value must be given to him or else he will not have his own. Any fruits which are due to the industry of the thief, and all necessary and useful expenses which he incurred in respect of the property, he may in conscience deduct from what must be restored to the owner, for justice only prescribes that each one should have his own, not more than his own.
2. If another's property is saved from fire, or from certain destruction in any other way, it still belongs to the former owner, for res clamat domino. At most, he who saved it has a claim to reasonable compensation for his trouble. If stolen goods perish in the hands of the thief, he must make restitution for them to the owner, unless they would have perished in the owner's hands at the same time and in the same way. For if they would have perished at the same time and in the same way, the thief is not the cause of their destruction: otherwise he is, and he must bear the consequences.
If stolen property had different values after the theft, the owner's losses must always be made good; and so if he intended to sell it when at its highest value, that value must be restored to him. Usually, however, if the property itself cannot be restored, it will be sufficient to restore the value which it had at the time of the theft. This is the teaching of many theologians and it seems to be in agreement with the provisions of English law: " The measure of damages in an action for conversion is the actual loss sustained by the wrongful act. In general, this would be the market value of the goods at the time of conversion. . . . And the jury on the trial of an action for conversion may also give damages in the nature of interest over and above the value of the goods converted." [81]
SECTION III
Possession of Property in Doubtful Faith
1. There is only question here of one who has well-grounded reasons for thinking that something in his possession belongs to another. We do not contemplate the case of one who merely suspects without solid reason that what he has belongs to someone else, much less the case of one who is ignorant of what title he has to his property. The doubtful faith of such a one as we are contemplating may date from a period subsequent to his obtaining possession of the property, or it may date from the time of his gaining possession of it; the possessor's obligations will be different as one or the other of these suppositions is verified.
2. When the possessor was at first in good faith but afterwards a doubt arose as to whether the property really belonged to him, inquiry must first of all be made to try and find out the true owner. Unless the possessor in doubtful faith does this, he exposes himself to the danger of keeping what does not belong to him, and thereby sins against justice. If he discovers the rightful owner, the doubt is solved; if after inquiry the question of ownership still remains doubtful, the possessor may keep the property and use it as his own, for in dubio melior est conditio possidentis.
3. If the possession began in doubtful faith, and the property was taken from another's possession, injustice was committed, and the whole must be restored to the original possessor, for possession was in his favour.
If the property came into the hands of the doubtful possessor by sale or gift, or in some other lawful way, presumptions may sometimes be used to solve the doubt. Thus, even though we get a more than usually cheap bargain, we need not conclude that the seller is a thief, for nemo mains praesumitur nisi probetur.
If the doubt cannot thus be settled, nor the question of ownership cleared up by diligent inquiry, theologians commonly teach that the property must be divided according to the probabilities of the case. For one who began to possess in doubtful faith cannot claim the benefits of possession and keep the whole. He may, however, keep a portion corresponding to the degree of probability of his right of ownership. A few recent theologians, however, doubt whether this solution rests on solid grounds, for even the possessor in doubtful faith has at least the fact of possession in his favour, and, ex hypothesi, it is not certain that he is not the rightful owner; in fact, he has some claim to be considered the rightful owner. These theologians, therefore, would permit the possessor in doubtful faith to retain the property, provided that he be ready to surrender it to the rightful owner if and when he should appear.[82]
CHAPTER III
THE SECOND ROOT OF RESTITUTION
SECTION I
On Damnification in General
i. WHOEVER wilfully causes unjust damage to another, even though he himself obtained nothing by his unjust action, is bound to make restitution to him as far as he can. For he is the unjust cause why another has not what belongs to him, and in order that justice may be done he must cause the person damaged to be put as far as possible in the same condition as he was in before the damage was done. He must then make restitution not only for all the damage which he intentionally caused, but for all consequent losses as far as they were in general foreseen.
2. In order that such an obligation may be imposed, certain conditions must be fulfilled which it will be well to state more explicitly.
(a) The damage must be inflicted voluntarily, with knowledge and the will to do the wrong. For a man is only responsible in the forum of conscience for his free and voluntary actions. There must be theological fault, as theologians express it, otherwise there will be no obligation in conscience to make good any damage, at any rate before lawful sentence of a judge competent to impose such an obligation. For the law sometimes imposes the obligation of making good damage which has been done, even though it was not foreseen or intended. This is especially the case when there has been legal negligence or the omission of that diligence which the law requires in the circumstances. There are three degrees in this negligence: " Ordinary neglect has been defined to be the omission of that care which every man of common prudence, and capable of governing a family, takes of his own concerns; gross neglect is defined to be the want of that care which every man of common sense, however inattentive soever, takes of his own property; and slight neglect to be the omission of that diligence which very circumspect and thoughtful persons use in securing their own goods and chattels." [83] In some cases the law punishes even slight neglect, in others ordinary, in others only gross neglect. The omission of that care which the law requires in the case is called juridical fault, and after sentence there will be an obligation in conscience to make good damage caused through juridical fault, for the laws prescribing this are just, inasmuch as they make men more careful and conduce to the public good.
If something has been done without foreseeing that it would cause damage to another, but this danger was noticed before the damage actually took place, there will be an obligation in justice for him who performed the action to prevent the damage as far as he can; if he does not do this, he will be bound to restitution. For as long as he can prevent the evil consequences of his action, this is under his control, and may, from the point of view of morals, be considered as continuing, and thus, unless he prevents the evil when he can do so, the agent is the voluntary cause of it. If, however, he cannot prevent the damage without relatively serious inconvenience to himself, there is just cause for excusing him. And so, if I inadvertently throw a lighted match on the ground, and then notice that it may probably cause a conflagration with loss to others, I am bound in justice to extinguish the light, otherwise I must repair the damage done.
If slight negligence caused slight damage to another, there will be an obligation of repairing it under pain of venial sin. If slight negligence caused serious loss to another, there is a difficulty as to whether before any judicial sentence there be an obligation to make restitution. Many theologians deny that there is, for no grave obligation can arise from a slight fault, and a light obligation has no proportion to serious matter; there cannot be a light obligation to avoid homicide, for example. [84]
(b) In order that there may be an obligation to make restitution for causing damage to another, the damage must be really and objectively unjust. If damage to another follows from the lawful exercise of my rights, I am not bound to make it good. If I dig a well in my property and thereby deprive my neighbour of his supply of water, I am not bound to make restitution for the damage. Similarly, I may sell a new machine or invention, though it may indirectly cause loss to many who had on sale machines of older pattern for which now there will be no market. I may lawfully use persuasion to induce a rich relative to leave his money to me, though others who would have had it thereby suffer loss. If, however, I make use of unjust means such as threats, violence, or calumny, and so prevent another from getting what he otherwise would have got, I commit a sin against justice and am bound to make restitution to the injured party. This is true even though he had no strict right to what he would have got, for at least he had a right not to be balked of his expectations by unjust means. And so in a competitive examination or concursus where something of value is the prize at stake, one who secures the prize by unjust means must make restitution to him who would otherwise have secured it. If there were no certainty of his securing it, restitution as far as possible must be made according to the degree of probability of his success. (c) The unjust action must be the cause, not merely the occasion, of damage being done to another, in order that there may be an obligation of making restitution. For we are only responsible in justice for damage which we have caused. And so if I commit theft and others are induced to do the same by my bad example, I am indeed bound to make restitution for what I have stolen, and I commit a sin against charity by giving bad example to others; but probably at least, according to many theologians, I am not bound to make restitution for what others stole through my bad example. Similarly, I am not bound to make restitution for damage which was caused accidentally by my action, when there was antecedently no probable connection between my action and the damage caused. As, for example, if I lit a fire in my property, and there was no probable danger of its causing damage to my neighbour, I am not in conscience before judicial sentence bound to make good damage which it caused him on account of an unforeseen change in the direction of the wind. Some theologians would bind the man who lit the fire to restitution in this case if he hoped for the change of wind and intended the damage. They say that the wrongful intention supplies the want of physical causation and puts him under the obligation of making restitution. This opinion is probable, but the opposite also is probable, for although the evil intention makes the man guilty of affective injustice, he is not guilty of effective injustice, for his evil intention makes no difference in the physical sequence of cause and effect, and if he was not the cause of the damage prescinding from his evil intention, that evil intention could not make him the cause.
In the same way, if the theft of one servant is wrongly imputed to another, and this one is dismissed in consequence, the thief is not bound to make restitution to the injured man unless in some way he caused the false imputation.
One who is not sure whether any harm was caused by his action is not bound to make restitution, for a certain obligation cannot arise from an uncertain source. Whether there is any obligation of making restitution for damage which was certainly caused, but it is uncertain whether the author was A or B, is a disputed point among theologians. Many teach that there is an obligation on all the probable authors in common to make good the damage, and each will be bound to make good the whole in default of the rest. This is certainly true in case of conspiracy; but if each acted independently, and it is not certain which one caused the damage, it is hard if the burden of restitution is imposed on someone who perhaps did not cause the harm. [85]
If an incendiary intended to set fire to the house of A, and by mistake he destroyed the house of B, it would seem that he is bound to make restitution, for all the requisite conditions are present. His action was voluntary, really, and effectively unjust. Some theologians, however, deny that the obligation of making restitution can be imposed in such cases. For the injury should be formal, and they deny that it is formal in this case. He did not intend to injure B; it was purely by mistake that his house was burnt down. Some weight must be allowed to this opinion on account of the authority of those who maintain it, but it would seem to be over-subtle and against the common sense of mankind. The injury was formal, inasmuch as it was voluntary and knowingly unjust. This is sufficient to induce the obligation of making restitution; it is not necessary that the wrongdoer should intend to injure a definite person.
SECTION II
Particular Cases of Damnification
I. He who by fraud, violence, or other unjust means leads another to commit sin, or deprives him of any supernatural or natural good belonging to the soul and mind, is guilty of injustice, and is bound to make reparation to the injured party. If the same effect is produced by persuasion or other not unjust means, a sin of scandal is committed; but justice is not violated, nor is there any obligation to make restitution. These principles are not only applicable to sin, but to vocation to the religious state and to sound doctrine, especially of the practical order.
Priests or masters, who by their office are bound to instruct others and teach them the truth, are in a special manner obliged to correct any false instruction which they may have given. Better leave people in ignorance than imbue their minds with falsehood.
2. There is a controversy among theologians as to whether there is an obligation apart from the just sentence of a judge for one who has injured another in one species of goods, as, for example, in his reputation, to make restitution to him in goods of another order, as, for example, in money. A competent judge may, of course, impose such an obligation according to the rules of equity; but apart from positive law the opinion which denies any strict obligation to do this seems the more probable. For if justice imposed such an obligation, equality would have to be secured between the injury inflicted and the compensation paid. This however, seems impossible in such a case, for there is no common measure of reputation and money. Moreover, however large a sum of money were paid in compensation for detraction, the reputation which had suffered would not thereby be restored. Justice, however, requires that what has been taken away should be restored, not something else.
3. When one has injured another's reputation by slander or detraction, he is under a grave obligation in serious matters to restore his neighbour's good name as far as he is able, and to make reparation for all other damage which the injured party has suffered in consequence of the slander or detraction. If he has lost his position or money, restitution of these must be made as far as possible. We saw above that more probably the detractor is not bound to pay money precisely in compensation for the injured reputation, unless condemned to do so by competent authority. The mode of restoring the injured reputation of another will vary according to circumstances. If no other way presents itself, the slanderer must say that he spoke falsely, for the reputation of the innocent is of more consequence than that of the guilty. A detractor who has injured the good name of another by making known his secret sin, cannot, of course, say that he spoke falsely, but he must do what he can in some other way towards the desired end. There will be no obligation to do anything if the calumny or detraction has been forgotten, or if the injured party has lost his reputation in some other way, or if the injured party prefers that the matter should not be reopened, or if it is physically or morally impossible now to do anything towards restoring his good name.
4. One who has unjustly wounded another, according to the more probable opinion, as we have seen, is not bound to make compensation in money for the wounding or mutilation. He is, however, bound to make restitution for all expenses to which his action has subjected the injured man, and for all other money losses which followed in consequence of loss of work, position, etc., and which were in some way foreseen by the wrongdoer. If the injured man dies, restitution must be made to his heirs or legatees for all the expenses he was put to or the losses he suffered on account of the unjust action. If, in consequence of the injury inflicted, the injured man cannot provide for wife, children, or parents, or if death ensued, the wrongdoer will be obliged to provide at least what is necessary for their support. For these had a right not to be deprived of their support by the unjust action of the wrongdoer. There are no necessary heirs according to English law, and it is a controverted point whether restitution is due to other heirs, relatives, or creditors who have suffered damage from the injury inflicted. It is probable that inasmuch as injury to such people is not necessarily connected with unjust wounding or homicide, and only follows from it in a remote and accidental manner, there is no obligation to make compensation to others besides the above-mentioned. [86]
Whether the injured man can release the wrongdoer from the obligation of providing for his family who are dependent on him is a disputed point among divines. Many approved theologians hold the affirmative on the ground that the family acquire their right to compensation through the injured man, who therefore can release the wrongdoer from all obligation to make restitution. This opinion is certainly probable, and so in case of a duel where both parties have freely consented to fight, and therefore freely accept the consequences of their action, there will be no strict obligation for the victor to make any compensation for wounding or killing his adversary.
5. Scienti et volenti nonfit injuria; and so if a woman suffers loss of reputation, position, or money, in consequence of fornication freely committed, no restitution will be of strict obligation. Even for criminal assault or rape no restitution in money is of obligation to compensate precisely for the loss of virginity. But the man who has been guilty of this crime must make restitution for other losses, and either by marrying the woman wronged or by providing her with a dowry, he must, as far as possible, put her in the position in which she would have been if he had not wronged her.
6. No money compensation is of obligation on account of adultery when no child has been born of the adulterous intercourse. If a child has been born, and loss ensues to the husband who is compelled to support a child which is not his, or to the family because one who has no right comes in for a share of the inheritance, compensation must be made by the guilty parties. Great difficulties would arise if an adulterous wife made known her crime to her husband, so she is not bound to do this; nor is a child bound to believe the sole assertion of his mother that he is illegitimate. Compensation must be made in other ways as far as possible. In practice, however, if husband and wife are living together, it will rarely be certain whether a child that is born is the fruit of adultery or not, and the presumption is that it is legitimate. If they are not living together, the adultery will be patent to the husband, and if he consents to support the child and treat it as his own, the obligation of the adulterer will cease.
CHAPTER IV
ON CO-OPERATION IN INJUSTICE
THE question of restitution is complicated and beset with special difficulties when there are more agents of injustice working together than one. There will, indeed, be the same roots of restitution which we treated of above, but difficulties arise as to who among the co-operators is bound to make restitution, and who is primarily bound. One may help another, or co-operate with another, in inflicting an injury in various ways. Nine ways are commonly enumerated: by counsel, by command, by consent, by provocation, by praise or flattery, by being partner in the sin, by silence, by concealment, by defending the ill done. In the first six of these ways the co-operation is positive, in the last three it is negative. Something must be said about each (cf. Can. 2209).
i. One co-operates with another in injustice by counsel when, by giving advice or by urging motives, or by showing how it may be done, he causes that other to commit an act of injustice. Such a one is obviously the moral cause of the injury, and all the conditions required for imposing an obligation of making restitution are present. If the principal agent was already determined to commit the injury, this will in that case not be due to the counsellor, and he will not be bound to repair it. Nor will the counsellor be bound to make reparation to the principal agent for any loss which the latter suffered in consequence of inflicting the injury, unless he induced him to act by fraud or other unjust means. Moreover, if before the injustice was committed the counsellor efficaciously withdrew his advice, and proposed equally strong motives for desisting from the act, it would seem that he cannot be obliged to make restitution. If, however, he had showed the other how to commit the crime and thus made it possible, he must take means to prevent it being committed, otherwise he will be responsible. Confessors, lawyers, doctors, and others whose expert advice is asked are under a special obligation not to give advice which is injurious to their clients or to third parties. If they do this, they will be bound to make compensation to the injured party not only when they acted maliciously, but also when they gave injurious advice through gravely culpable ignorance or precipitancy. Others who do not specially hold themselves out as experts will not be bound to compensate those who ask their advice and suffer loss through following it. No injury was done by giving them what they asked for, no fraud was committed by the assumption of skill or knowledge which was not possessed; if they chose to follow the advice, they took the risk on themselves, and scienti et volenti nonfit injuria.
He who follows unjust advice acts in his own behalf and in his own name, and so is the principal cause of the injury done. He is bound in the first place to make restitution, and if he fail to do so, the counsellor is bound.
2. We co-operate in injustice by command when by whatever means we induce another to do an injury in our name and on our behalf. It does not matter whether one of the parties is in a position of superiority with respect to the other or not, nor by what means he induces the other to perform the injurious action, whether by threats, or promises, or commands, or requests; it is sufficient if by any means he induces the other to do his unjust will. Henry II made himself guilty of the blood of St Thomas a Becket by complaining that none who ate his bread would avenge the insults offered him. Mere approval, however, of injustice which has already been done does not render him who approves liable to make restitution.
One who by command induces another to commit an injury is bound in the first place to make reparation for the injury and for all the damage which was the necessary consequence. In his default the instrument of his injustice is bound to make restitution. The one who gave the command is not bound to compensate his agent for loss or damage which he suffers in executing the will of his principal, unless compulsion or other unjust means were used to procure his co-operation. Nor is he bound to make restitution for damage which his agent did in excess of the instructions given. Furthermore, if before the command is executed he recalls it and the recall is notified to the agent, he will not be responsible for what the agent may do on his own authority; he will be responsible, however, if by any chance the intimation that the command is recalled does not reach the agent.
3. One who co-operates in injustice by giving his consent or vote that the unjust action should be done is bound to make reparation if his consent was the moral cause of the injustice. And so members of legislative bodies who agree together to pass an unjust law are jointly and severally bound to make reparation for all the harm that the law does. Jurymen, too, whose vote is necessary for an unjust verdict are all responsible for the injustice if they give the verdict. Sometimes, however, when injury is inflicted by the unjust votes of many, the obligation of making restitution will depend on the manner of voting. If all acted conjointly, giving their votes in a body, each and all will be responsible for the harm done; if, however, the voting took place successively, those who voted first and whose votes were necessary and sufficient for passing the unjust measure will indeed be bound to make restitution; but those who voted subsequently, and whose votes were not required to make the measure law, may be excused from the obligation of making reparation except in the case of conspiracy, though they, too, sin against justice. Those who give an unjust vote when it is the only means of preventing a greater evil do not do wrong, and are not bound to make restitution. When one of two evils is necessary, we may lawfully choose the less.
4. Whoever by provocation or ridicule, or by praise or flattery, causes another to commit an injury, or is the cause why reparation is not made for injustice committed, is himself bound to make restitution in the same way as one who is the cause of injustice by counsel.
5. One may be a partner in the infliction of injuries in various ways. He who helps another to perform an unjust action is a partner in injustice in the strict sense. One, however, who receives stolen goods or affords protection to a wrongdoer, and so encourages him in committing injustice, is also a partner in his sin. A receiver of stolen goods is obviously bound to restore them to their owner, and if by holding himself out as ready to receive them, or by affording protection to the thief, he is the cause of injustice being committed, he will be responsible for that too. To what extent the partner in injustice is bound to make restitution will depend on circumstances. He will be responsible for the whole damage inflicted if it could not have been inflicted without his help, or if the partners conspired together to commit injustice. Otherwise it will be sufficient to make reparation for such part of the damage as each respectively caused, in the estimation of a prudent person.
When treating of charity we saw that it was never lawful to co-operate formally in another's sin, but that according to the principle of a double effect it is sometimes allowed to co-operate materially in the sin of another. This doctrine may be applied to the matter before us, and so though it is never lawful to help another to do what is always and intrinsically wrong, as to kill an innocent person, yet in other cases it is not sinful to co-operate materially with the unjust action of another. A servant who is threatened with instant death unless she gives up a key to a robber, or shows where her master's money is kept, would act heroically if she died rather than betray her trust; she would not commit sin if she preferred her own life to her master's property.
6. On account of one's office, or in virtue of a special contract, there is sometimes a special obligation to prevent injury being done to others, and if the obligation be not fulfilled, there is negative co-operation in the injury inflicted. Apart from such special office or contract we are bound in charity to prevent injury to others as far as we can, but not in justice. This negative co-operation may be committed by concealment of injustice which has been done, as when a servant conceals thefts committed against his master's property which has been entrusted to his care. It may be committed by silence, as when a policeman accepts hush money to say nothing about a robbery. It may also be committed if one whose duty it is to protect another's rights or property neglects that duty and allows them to be injured. On account of defence of an unjust act which has already been done there will not arise an obligation to make restitution, unless such defence was the cause why restitution was not made for the crime defended. All approbation and defence of wrongdoing is nevertheless sinful. One who culpably neglects to prevent his animals from doing harm to his neighbour is bound to make restitution.
Sometimes these negative co-operators are excused from performing their strict duty on account of the very serious inconvenience to which it would subject them, and which they are not presumed to have obliged themselves to undergo. In such cases they will be excused from making restitution for injuries which they did not prevent.
CHAPTER V
THE CIRCUMSTANCES OF RESTITUTION
IN this chapter we will treat of certain questions concerning the circumstances of restitution, as, to whom restitution is to be made, how much, in what order, in what manner, at what time and place.
SECTION I
To whom Restitution is to be Made
1. Restitution is compensation for an injury inflicted, and so in general it must be made to him who suffered the injury. This will in general be the lawful possessor of the property taken or damaged, to whom, therefore, restitution must be made if he is known for certain. If the property was taken from a child, or from a servant who merely held it for his master, it may be restored to the father of the child or to the master. If it belonged to a corporation, it should be restored to those who administer its affairs.
2. In case of doubt as to whom the property belongs, diligent inquiry should be made, and if the doubt cannot be resolved, the property should be divided among those who are the probable owners if they are few in number. If they are many and uncertain, restitution may be made to the poor or to religious purposes of the place where the injury was committed, for the true owners may in the circumstances be presumed to wish that this should be done. If the property cannot well be devoted to local charitable or religious purposes, it may be spent elsewhere on such causes. When shopkeepers and others are bound to restitution for defrauding their customers, the persons injured are not altogether unknown, and restitution can best be made by restoring to future customers what has been unjustly taken away.
3. If the true owner is altogether unknown and cannot be discovered, property which has been obtained without injustice may be retained and treated as property found, in which the finder has a qualified ownership.
If the property was obtained through wrongdoing, it must be surrendered, the common good requiring that nobody should benefit by his own theft or fraud. Theologians are practically agreed on this, and that restitution must be made to the poor or to religious purposes; but when they inquire further into the reason for the doctrine they are divided in opinion. Some maintain that it is grounded on the positive law of the Church which expressly provided that what has been unjustly obtained by usury or simony must be given to the poor or to pious causes, and the same decision has been extended to similar cases. On this ground they explain the action of the Church, which sometimes grants compositions for just cause to debtors whose creditors are uncertain. Other theologians with greater probability teach that the doctrine rests on natural law, which the Popes interpreted and applied to gains made by usury and simony. For natural law requires that nobody should benefit by his own wrongdoing, so that restitution must always he made of ill-gotten goods. If restitution cannot be made to the individual owners, partly by interpreting their personal wish, partly because if the property is usefully expended on the poor in their behalf they will benefit spiritually by it, partly because inasmuch as the community is wronged by theft, restitution must be made to the community, and this is done by choosing the poor or religious objects; the obligation is satisfied by restoring to these.
SECTION II
How Much is to be Restored
1. We have already seen what must be restored in the case of one who is in possession of another's property, or in case of unjust damnification to another. In general, the damage inflicted is the measure of the restitution to be made, for justice requires that the owner should have back his own. When there were several who co-operated in injustice a special difficulty arises as to whether each and all are jointly or severally bound to make restitution. If two thieves assist each other to break into and rob a house, what are the obligations of each of them with respect to the restitution to be made?
2. In such cases as this each must, of course, make restitution for the harm which he personally and immediately caused. If each one takes his share and makes reparation for that portion of the injustice which he committed, the whole damage will be repaired. But sometimes some of the partners of injustice are unable or unwilling to make restitution for their share in the unjust act; the question then arises whether the rest are bound to make good the whole damage inflicted.
Each and all will jointly and severally be bound to make reparation for the whole damage, or in solidum, as divines say, when each and all were jointly and severally the efficacious moral or physical cause of the whole damage; for we are bound to make reparation for the damage which we have caused, and for that alone. This will be the case under the following circumstances:
(a) When the action of each and all is the necessary and sufficient cause of the whole damage. This condition is fulfilled when one commands or counsels an unjust act and another in consequence performs it.
(b) When the action of each is sufficient to cause the damage, and it has an actual effect in producing it, though the effect would have been produced without it. Thus if two men inflict fatal wounds on another, each is responsible for his death and all losses necessarily connected with it. In the same way, when several conspire together to commit an injury, and mutually encourage and assist each other to inflict it, all are bound jointly and severally to make restitution.
(c) When the action of each is necessary for the production of the effect, so that it could not be produced without it, though the action of each would not be sufficient by itself, all are bound jointly and severally to repair the injury. Thus if two thieves carry off a safe which they could not carry alone, each in the other's default must make good the whole damage.
When several acting together, but without mutual conspiracy in the strict sense, inflict injury on another, divines are not agreed as to whether each and all are bound to make reparation for the whole damage. Each is certainly bound to repair the damage due to his personal action, but probably be may be excused from restoring more than is equivalent to the damage which he actually caused. Thus, though those responsible for an unjust war are bound to make compensation for all the unjust damage which it causes, yet the private soldiers are only bound to make restitution for the damage which they personally cause. In the same way, if a crowd damage the property of an obnoxious political opponent, individuals who formed the crowd will only be obliged to make good the damage which they severally caused. Similarly, if injustice be done by picketing in a strike, the leaders will be bound to make reparation for all the injuries inflicted; the men who take part in it may be excused if they contribute their quota.
SECTION III
Order of Making Restitution
1. When several have co-operated in some act of injustice for which they are bound to make restitution there may be question as to who is primarily bound, and whether the others are excused if he repairs the damage. The answer to such questions will be clear from what follows.
When those who co-operated in injustice are only bound to restore ratably, no order need be observed among them. Each must fulfil his obligation independently of the others and restore his share. Even if they are bound jointly and severally to make restitution, but all co-operated in the unjust act in the same way as, e.g., by conspiracy and mutual help the question of order will not arise. Each and all are bound to restore their quota, and in default of any, the rest are equally bound to indemnify the injured person. If this has been done, those who indemnified the injured party will have a claim against the defaulters.
2. If, however, those who are guilty of an injustice in common co-operated in it in different ways and degrees, so that, for example, one gave the command, others executed it, and others who were bound to prevent it neglected to do so, then it is plain that all are not equally primary causes of the injustice, nor are all equally bound to make restitution. In such cases the co-operators are bound to make restitution in the following order: (a) If anyone has the property of the injured person he must restore it, for res clamat domino, (b) One who co-operates by command is the principal cause of the injury; the rest merely act in his name and for his advantage, so that he is primarily bound to make good the damage done. (c) Thirdly, those who inflicted the damage will be bound to make it good, (d) Then others who co-operated positively by advice, consent, or flattery, will be bound, (e) Finally, those who co-operated negatively.
If the primary causes of the injustice make restitution, the rest will be free, whereas if the secondary causes who merely acted for others restore to the injured party, the primary causes will thereafter be bound to make restitution to them.
3. The question of order of payment among creditors also arises when a debtor is insolvent and cannot pay all in full, for if he can pay all in full, order of payment is not of consequence. If a man cannot pay his debts as they become due, he will be adjudicated a bankrupt, and his property will in general be divided ratably among his creditors. Some debts, however, have priority according to English law, and must be paid in full if the assets are sufficient for the purpose; otherwise they will abate equally among themselves. " These are (i) Rates and taxes. ... (2);The wages or salary of any clerk or servant, not exceeding ,50, in respect of services rendered during four months prior to the receiving order. (3) Wages of any labourer or workman, not exceeding 25, for services, whether time or piece work, rendered during two months prior to the date of the receiving order."
" A secured creditor has four courses open to him: (i) He may rest on his security and not prove. (2) He may realize his security and prove for the deficiency. (3) He may value his security and prove for the deficiency, after deduction of the assessed value. (4) He may surrender his security and prove for the whole debt."
The debts of a person lately deceased must be paid by the executor or administrator in the following order: " First, the funeral expenses; next, the expenses of probate or taking out administration, including the costs of an administration action and other executorship expenses; and then the debts of the deceased are payable out of legal assets in the following order: (a) Crown debts due by matter of record, a surety to the Crown having the like priority; (b) debts having priority by statute e.g., under the Friendly Societies Act, 1896, sec. 35; (c) debts of record consisting of judgements in courts of record and recognizances; (d) debts by specialty and simple contract."
If, however, the deceased died insolvent, on the petition of one or more of his creditors, whose debt would have been sufficient to support a bankruptcy petition against him if he had been alive, his property will be administered as in bankruptcy according to English law.
If a debtor makes a payment of money or a delivery of property to a creditor not in the ordinary way of business and without any pressure or demand on the part of the creditor, knowing that his circumstances are such that bankruptcy will be the probable result, he is guilty of a fraudulent preference in English law. Such fraudulent preference is void against the trustee in bankruptcy, if made within three months before the bankruptcy petition is presented. There is a similar provision in American bankruptcy law, but the period is four months instead of three.
Those who are on the verge of bankruptcy should not, of course, give such preferences to any of their creditors merely with the intention of favouring them at the expense of other creditors. If they cannot pay their debts in full, the claims of justice are the same for all, and all creditors should share alike. If such a preference has been given, the property must, of course, be surrendered to the official receiver or trustee on his demand. But supposing that he does not come to the knowledge of it, and makes no demand for it, is the preferred creditor bound to surrender the property of his own accord? There would seem to be no obligation in conscience to do so. He has only received payment of what was due to him, as we suppose; he might have demanded payment, and then the insolvent debtor might lawfully have paid it. No valid reason can be urged to show that in accepting full payment of his debt before the debtor's bankruptcy the preferred creditor commits an act of injustice against the other creditors. If he does not commit an act of injustice against them, he is not bound to make restitution to them. At least, this opinion would seem not to be destitute of all probability in its favour.
SECTION IV
The Manner of Making Restitution
i. In the internal forum of conscience it is sufficient to indemnify the injured person for the injury which he has suffered, and in whatever way this is done conscience will be satisfied. Restitution, then, may be made by one's self or through another, with or without the knowledge of the injured party, under the guise of a gift, or by extra work in the case of a servant, or greater diligence than is otherwise of strict obligation. If the form of a gift or present is chosen, and the donee makes a present in return, this may not be accepted if the principal motive for making it was to make a return for the present received, otherwise it may be retained when the receiving of the present was rather the occasion than the cause of the return being made.
2. In English law payment through the post is not a valid discharge of a debt unless the creditor expressly or by implication designated that method of payment. However, in conscience, it would seem that a possessor in good faith of another's property is released from all further obligation if he choose means for making restitution which are ordinarily safe and secure. He is only bound to use ordinary care and diligence in restoring the property, nor is he bound to do this at his own expense.
According to the common opinion of theologians, one who possesses another's property in bad faith must see that the property is again put into the possession of its true owner, so that if he send it by post and it is lost, he is still bound to make restitution, unless the means chosen were expressly designated by the owner. However, there is a good opinion which excuses even the possessor in bad faith from further obligation if he took ordinarily secure means to restore the property to its rightful owner. The creditor may be presumed to consent that such means as the post or the confessor should be chosen for making restitution, and if the property is lost, peril domino.
The possessor of another man's property in bad faith must restore it to the owner at his own expense. If the individual property cannot be restored without very great expense, restitution may be made in money with the presumed consent of the owner.
SECTION V
The Time and Place of Making Restitution
When an obligation of making restitution arises from contract, the terms of the contract must be observed with regard to time and place. Otherwise, in general, restitution must be made as soon as possible, and the unjust possessor of another's property will be responsible for all loss arising from even inculpable delay, as far as such loss could be foreseen. He became responsible for such loss when he took unjust possession of his neighbour's property. He must, moreover, at his own expense, as we have seen, take means to put the owner in possession of his property again. The possessor of another's property in good faith must not delay restitution unreasonably, but he is not responsible for unavoidable delay, nor is he bound to bear the expenses of making restitution.
CHAPTER VI
CAUSES WHICH EXCUSE FROM RESTITUTION
i. One who is per se bound to make restitution may sometimes be excused from doing so for special reasons, either entirely or at any rate for a time. It is plain that if the owner does not expect or wish restitution to be made, although he was unwilling to be injured, the obligation will cease. A rich father may be unwilling that his son should take from him a sum of money without his permission, but after it has been done he may not care to exact restitution. Similarly, a wealthy man would be very angry if a neighbour took one of his horses out of the stable and used it for a day's work; he might demand an apology, but he probably would not take any money compensation;>he does not keep livery stables.
2. Physical or moral incapacity to make restitution will be a valid excuse as long as it lasts. If a man has no means, or if he cannot make restitution without reducing himself to beggary, it will be sufficient if he have the wish and intention to restore when he is able to do so. Sometimes it may be possible for one who has stolen a large sum which he cannot at once repay to lay by a little at a time and thus by degrees save the amount required. If this can reasonably be done, it will be of obligation. It would be unreasonable to expect a man to make restitution when it could not be done without costing a great deal more than the object restored was worth, or when restitution of a sum of money would lead to loss of reputation, position, and future prospects. If in such cases means exist for making secret restitution, they should of course be adopted.
When a man becomes bankrupt all his property, with the exception of the tools of his trade and the necessary wearing apparel and bedding for himself, wife, and children, to the value of 20, will vest in the official receiver and trustee. These officials will also be able to claim for the benefit of the creditors future acquisitions of property until the bankrupt has obtained his discharge. The question arises whether after a bankrupt has obtained an absolute discharge he is still liable in conscience to pay any residue that remains of his debts, or whether he is free in conscience as he is in law. There can scarcely be a doubt that the civil authority can release a bankrupt from all future liability if it choose to do so. Especially in trading communities it may be for v the public good that an honest but unfortunate trader should be able to begin again, without being weighted with a heavy load of past debts. If the law releases a bankrupt debtor from all future liability, the rate of interest will soon accommodate itself to the circumstance. So that it is merely a question of fact as to what is the effect of any particular bankruptcy law. In most countries, as in America, it seems that the law only grants the bankrupt legal exemption from future molestation on the part of his creditors; it does not free him from the moral obligation to pay his debts in full if ever he becomes able to do so.
In England, on the other hand, by an absolute discharge " the debt is extinguished," " the bankrupt becomes a clear man again," in the words of lawyers who discuss the effect of English bankruptcy law. A composition or scheme of arrangement with one's creditors has the same effect as an absolute discharge when it has been approved by the Court.
CHAPTER VII
ON OCCULT COMPENSATION
i. What another owes me in justice I have a right to have, and if he refuses to give it to me, I may compel him by having recourse to law. Sometimes, however, this means of enforcing my rights is uncertain, costly, and accompanied by great inconvenience. Under certain conditions I shall be safe in conscience if I covertly take what belongs to me. If I do this, I only take my own; I only defend myself from a continual injustice which was being inflicted on me by one who detained my property against my reasonable will.
2. Such an act of occult compensation, as theologians call it, may be allowed in conscience on four conditions:
(a) The debt must be morally certain. If I have only a probable right, I may have recourse to the law to have the question decided, but with only a probability on my side I must not deprive another of what he possesses with a probable right on his side. In such a case, melior est conditio possidentis.
(b) There must be a difficulty in vindicating my right by ordinary legal process. For if there be no difficulty, I must not take the law into my own hands; public order and peace require that. Even though from occult compensation there be no fear of a breach of the peace, yet no man is a safe judge in his own case.
(c) I must not secretly take what belongs to me when there is likelihood of being paid after all. By so doing I should wrong my debtor and be paid twice.
(d) I must take compensation in the same kind of property as far as possible; the debtor must not be forced to sell or barter his property against his will. Of these conditions the first is the most important, but all should be loyally and conscientiously observed in those special cases when we may have recourse to occult compensation.
PART VIII
THE EIGHTH COMMANDMENT
THE Eighth Commandment of the Decalogue is, " Thou shalt not bear false witness against thy neighbour." [87] Primarily it forbids the giving of false evidence, especially in a court of justice, against one's neighbour, by which his reputation is unjustly injured. But because the same effect is produced by rash judgements, calumny, tale-bearing, backbiting, contumely, lying, and the betrayal of secrets, all these sins are also forbidden by this commandment. Inasmuch as it is virtually positive, it prescribes the telling of the truth.
CHAPTER I
ON RASH JUDGEMENTS
I. A JUDGEMENT is a firm assent of the mind to a proposition without fear of mistake, and if such an assent is given without sufficient grounds it is a rash judgement. The term, however, is used here only of judgements without sufficient reasons against the character of others, as that such a one is wicked, untrustworthy, a drunkard, and so on.
2. Such rash judgements, when they are formed deliberately with the consciousness that there is not sufficient ground for them, are sinful, and if the matter be serious they are gravely sinful. The reason is because all have a right to our good esteem unless they have forfeited it by their bad conduct; in judging others rashly we arrogate to ourselves an authority which we do not possess, and we use it unjustly against the character of our neighbour. [88] We thus violate justice, which in serious matters binds under grave sin.
3. Rash judgements, however, to which depraved human nature is so prone, are not usually grave sins in those who are striving to lead good lives. . Rash and evil doubts, or suspicions, or opinions about others are frequent, but these, although wrong, are not as a rule gravely sinful, for they do not inflict serious harm on our neighbour's reputation.
4. It is no sin to think that another is wicked or has committed a sin if we know it to be a fact. Nor are we obliged to think that all men are good until we know something to the contrary. We may suspend our judgement about such as we do not know sufficiently well to be able to say whether they are good or bad. We know, moreover, that there are many bad people in the world, and prudence suggests that we should be on our guard against all whom we do not know well, though justice and charity incline us to think no evil of anyone.
Rash judgements frequently arise from the malice of our own hearts, or from hatred and envy.[89] If we purify our own hearts from vice and wickedness, we shall think kindlier thoughts of others.
CHAPTER II
ON DETRACTION
i. DETRACTION, slander, or backbiting is committed by unjustly depriving another of his good name in his absence. If this is done by falsely imputing to him something which injures his reputation it is called calumny. Tale-bearing is a similar sin, and consists in making mischief between friends by telling tales to the disadvantage of one of them. All these are sins against justice and charity, for they tend to deprive our neighbour of his good name, " which is better than great riches," and to which he has a strict right until he forfeits it by his public conduct. Even if what is said to the disadvantage of our neighbour be true, we have no right to make it known to his discredit, as long as it is not public, for he still retains his reputation, he still has a right to it, and he must not be deprived of it without just cause. Even the dead retain their right to their good name, for death does not make them non-existent, and men are prepared to do and suffer much for the sake of leaving a reputation behind them. Besides, speaking ill of the dead frequently besmirches the living. Not only individuals but corporate bodies have each their reputation, and detraction may be committed against a Religious Order, for example, or a diocese, as well as against individuals.
2. Inasmuch as detraction is contrary to justice and charity, which, as we have seen, bind under a grave obligation, it will of itself be a serious sin, though frequently only venial on account of levity of matter. The measure of the gravity of the sin will be the harm which it causes to the person whose reputation suffers. The making known of the grave but secret sin of another with malicious intent or to his serious injury will certainly be a mortal sin. The disclosure of a venial sin of another, or even of some hidden defect for which he is not responsible, as, for example, illegitimacy, may cause him serious damage and constitute a grievous sin. However, the making known of even a grievous sin of another is not always mortally sinful, for sometimes no serious harm follows from it. A notorious drunkard will not be injured appreciably if a secret sin of drunkenness is made public, nor a woman of doubtful reputation if some specific fall is mentioned. On the other hand, although a man has lost his reputation in one particular matter, he may still have one to lose in other matters, and if his secret sins in these matters be made known, a more or less grievous sin of detraction will be committed. A man may be of notoriously loose morals but with a character still to lose for honesty and uprightness.
3. When a man has been tried and condemned in an open court of justice, there is no wrong done him by publishing the fact in the newspapers, or telling it to those who would not otherwise have heard of it. The judicial sentence penalizes him and deprives him of the right to his reputation in the matter touched by the sentence. This holds true of distant places and countries, and even of distant times. No injustice, then, is committed against one who has been legally convicted of crime by making this known in a place to which he has come in the hope of its not being known. Uncharitable harm might be done against such a one if he was trying to lead a good life in his new surroundings.
Similarly, the sin of detraction is not committed when a sin which is matter of common report in one place is made known in another, if the knowledge of it would be sure to penetrate there before long. It is a disputed point among theologians whether or not sin is committed in such a case if otherwise the knowledge would not penetrate to the place where it is made known. At any rate, it is advisable to keep silence about such cases unless there be some good reason for making known the truth. If someone is thinking of employing an unknown servant whom we know to have committed theft from her former mistress in another part of the country, we are justified in making the fact known to the person concerned. It does not follow that we are justified in publishing elsewhere the sin of another which was well known indeed to a particular circle or community, but which was not really public. In such a case the right to one's reputation with the outside world has not been lost.
4. The right to one's reputation is not absolute. We are, of course, never justified in calumniating another by imputing false charges to him. But for just and sufficient reasons we may make known the secret sin of another. There are cases when this is necessary for the public good or for the protection of the rights of the innocent, and in a conflict of rights the stronger should prevail. Thus, when lawfully summoned to give evidence in a court of justice we may witness to secret crime, and generally, whenever the defence of ourselves, or of the innocent, or the good of the delinquent himself, or of our hearers, require the truth to be made known.
5. If by listening to a detractor we encourage him to slander another, we are formal co-operators in his sin and are as guilty as the detractor himself. If our listening is not indeed the efficacious cause of the detraction, we do not sin against justice, but we sin against charity if we could prevent the detraction and do not do so. For charity obliges us, as we saw above, to correct an erring brother and to prevent harm being done to our neighbour as far as possible. It is true that private individuals will seldom be bound by a grave obligation in this matter; frequently they could not intervene without doing more harm than good; but those in authority are more frequently and more strictly bound to correct their subjects and to defend their reputation against slander.
6. Inasmuch as detraction, calumny, and other sins of the like nature are contrary to justice, they will always leave the obligation of making restitution as far as possible for the unjust damage which they cause, as we saw above when treating of restitution.
CHAPTER III
ON CONTUMELY
i. Our neighbour has a right not only to his good name but also to the honour or the external marks of our esteem, befitting his qualities and position. The Apostle exhorts us to " love one another with the charity of brotherhood, with honour preventing one another," [90] and in another place he bids us render honour to whom honour is due. [91] The sin of contumely is committed by any act or word which is contrary to the honour which we are bound to show our neighbour. It may be committed by neglecting to show him the honour which is his due, or by saying or doing something in his presence which expresses our contempt of him.
2. Contumely of itself is a grave sin against justice and charity, for it injures a man in what he values more than wealth, and as a rule an insult wounds the reputation, as well as the feelings of him who is insulted. Our Lord's words show how grievous a sin is committed by treating another with contumely: " Whosoever shall say to his brother, Raca, shall be in danger of the council. And whosoever shall say, Thou fool, shall be in danger of hell fire." [92] Like most sins against justice and charity, contumely may be only a venial sin, for levity of matter, and chaff or banter, which is not intended to wound or irritate another, is of course harmless provided that it keeps within due bounds.
3. Inasmuch as contumely violates justice, proper satisfaction must be made for insults. The kind and manner of making satisfaction will depend much on the relative condition of the parties. Sometimes the person injured may be reasonably presumed not to wish the memory of the insult to be revived by formal apologies, and the danger of again arousing bitter and angry feelings may also excuse one from open acts of satisfaction.
CHAPTER IV
ON LYING
i. A lie is defined by St Thomas to be a speech contrary to one's mind. [93] It is, then, of the essence of a lie that there should be an intention of saying what is false, that there should be a contradiction between the mind and the external expression of it. One may tell a lie, then, by saying what is true if it is believed by the speaker not to be true, and a lie is told by denying what is false if it is believed to be true. Although a liar usually has the intention of deceiving others, yet such an intention is not of the essence of a lie. A man may be well aware that he has no chance of being able to deceive another, but may say what he knows to be untrue in order to excuse himself or not to stand self- convicted. Men who are known to lie habitually do not expect others to be deceived by what they say, but still they lie when they say what is not true. One may lie to God, though he knows that he cannot deceive him.
In saying that a lie is a speech contrary to one's mind we understand not only words but gestures, or any signs by which our thought is manifested to others. As St Augustine says: " He tells a lie who has one thing in his mind and says something else by word or by any signs whatever." [94] For we may and do constantly speak not only by word of mouth, but by our tone, looks, gesture, actions, and by the very circumstances in which our words are uttered. The words " I am not guilty " in the mouth of a murderer have quite a different meaning when they are uttered in the dock and at the feet of his confessor. The words, the tone, the look may be the same; the circumstances make it a true speech in the first case and a sacrilegious lie in the second.
A lie in action is called hypocrisy or simulation, but the malice is the same as in lying words.
Lies are divided by theologians into jocose, officious, and hurtful lies.
A jocose lie is told to amuse others; it is something said in joke which the speaker knows to be false, and uttered with the intention of saying what he knows to be false. If what is not true is said in joke without any intention of lying, and in such a way that ordinary hearers would understand, there is no lie. To speak ironically is not to lie.
An officious lie is a lie of excuse, or a falsehood which, while procuring some advantage, does nobody any harm.
A hurtful lie does an injury to someone.
2. According to the common Catholic teaching, lying of every kind is intrinsically wrong; so that, inasmuch as we may not do evil that good may come of it, we are never justified in telling a lie, not even if the life of another or the safety of the world depended on it. St Augustine, St Thomas, and other Catholic Doctors and theologians gather this doctrine from the teaching of Holy Scripture which in many places seems to forbid all lying as absolutely as it forbids theft or homicide. [95] Pope Innocent III gives expression to this teaching when he says in the Decretals, " Since Holy Scripture prohibits lying even to save the life of another." [96] Reason teaches us the same doctrine. For a lie is something inordinate in itself. It is a perversion of the moral order which the law of nature prescribes should be observed between the mind and the expression of it in our intercourse with others. We are endowed with the faculty of making known our thoughts and feelings to others; right order requires that the external expression should agree with the internal thought, that the machinery should be correctly regulated, that there should be no contradiction between the parts of the same agent, as there is when a lie is told. The moral turpitude which there is in such a contradiction between the mind and its external expression is well seen in the vice of hypocrisy. When a man pretends to be other than he is, there is the same perversion of right order that there is in lying. It is like a monstrosity in nature; the parts of one whole do not fit harmoniously together; they are out of gear and offensive to the view. There is, then, a special virtue of veracity which prescribes that when we have to make known our thoughts and feelings we should do it truthfully, or, in other words, we should make the outward expression agree with the thought. This virtue of veracity exists and is of obligation apart from any right to the truth that there may be in others. Veracity is something which we owe to ourselves as well as to our neighbour. It is true indeed that society is very much interested in sincerity and veracity. Social intercourse is very much hindered by lying and the mistrust which lying generates. But although this is true, yet lying must be avoided primarily because it is unworthy of the dignity of man; it is a perversion of right order; it is intrinsically, in itself, wrong.
Some of the Greek Fathers held a different view from the above, and thought that lying was not wrong under all circumstances, but that it was occasionally allowable, like medicine, on account of inevitable necessity. English moralists have very commonly held a similar opinion, that a lie is only told when what is false is said to one who has a right to the truth. Some modern Catholic theologians have also adopted this opinion, which places the malice of lying in the denial of the truth to one who has a right to it. They do not, however, sufficiently explain the nature of that right, whether it is a strict right of justice, or a right in a vague sense demanded by the good of society, and so due out of legal justice, or charity, or piety, or obedience. Moreover, it is as difficult to determine when that right exists as it is to determine what is a lie according to the common opinion, and the door seems to be opened to promiscuous lying provided that no injury be done to our neighbour. The only lie which the theory acknowledges seems to be the hurtful He. Nor does it sufficiently answer the arguments on which the common opinion is based.
3. If it is never lawful to tell a lie, if the lie of necessity cannot be allowed, what means have we of safeguarding a secret?
Catholic theologians answer this question by propounding their doctrine of mental reservation. Mental reservations are either strictly or widely so called. The former is the restriction of one's meaning in making an assertion to the proposition as modified by some addition made to it within the mind of the speaker. As if on being asked " Are you going to town?" one were to answer " Yes," meaning " in imagination." In wide mental reservations the words used are capable of being understood in different senses, either because they are ambiguous in themselves, or because they have a special sense derived from the circumstances of time, place, of person in which they are spoken. Thus, when a servant says that her master is not in, the words may mean either that he is absent, or that he does not wish to see the visitor. The servant's real meaning is restricted to one of these senses. In the same way a defendant on his trial in an English court of justice pleads not guilty i.e., until the charge be proved. A lawyer or a doctor questioned about professional secrets replies, " I don't know " i.e., I have no knowledge which I can communicate.
Although strict mental reservations are lies, and therefore sinful, yet wide mental reservations are in common use; they are necessary, and they are not lies. They are necessary because justice and charity require that secrets should be kept, and frequently there is no other way of keeping them. They are not lies because, as we saw above, words take their meaning not only from their grammatical signification, but from the circumstances in which they are used. When a priest is asked about a sin which a penitent has confessed to him, and he answers, " I never heard of it," he speaks as a man, not as a confessor who holds the place of God in the tribunal of Penance. All are aware that he is a priest, and to all his words mean, " I never heard of it outside of the confessional." He never speaks of what he has heard inside the confessional, and nothing can, or should, be gathered about what he has heard there from the words which he uses. Although these wide mental reservations are not lies, yet they must not be employed without just cause, for the good of society requires that we should speak our mind with frankness and sincerity in the sense in which we are understood by our hearers, unless there be a good reason for permitting their self-deception when they take our words in a sense that we do not mean.
Truth requires not only that we should say nothing that we know to be false, but also that we should weigh our statements and not make rash and unconsidered assertions. There are some people whose talk runs babbling along like a stream in a fresh, and with as little meaning. A man with a love for truth will be more sparing of his words, and will weigh them before giving them currency.
CHAPTER V
ON SECRETS
i. A secret is some hidden matter concerning another which cannot be made known without causing him injury or displeasure. Besides the secret of the seal of confession, which is treated of elsewhere, divines distinguish three kinds of secret: the natural secret, the promised secret, and the secret which is communicated under an express or implied contract of secrecy.
When we come to the knowledge of something concerning another which cannot be made known without causing him injury or displeasure we are under the obligation of a natural secret not to make it known. This obligation arises from charity and justice, inasmuch as these virtues forbid us to do anything to the hurt or annoyance of our neighbour.
If we come to know something concerning our neighbour and then give a promise not to reveal it to others, we are bound by a promised secret. If the matter was of its nature secret, there would be the obligation of a natural secret independently of the promise. When the promise is given, a special obligation arising therefrom binds the party to secrecy. In case the matter was not of itself secret, the only obligation would be that arising from the promise. It depends to some extent on the intention of the promisor as to what obligation he takes upon himself by his promise. He may intend to bind himself to keep his word by the virtue of fidelity, because it is the duty of an honest man to keep his promise. In this case, as fidelity only binds under pain of venial sin, there will only be this obligation to observe the promised secret. However, if the other party to whom secrecy was promised would suffer serious loss from the violation of the secret, or if the parties were bound by mutual promises, then justice would require the secret to be kept, and the violation of the obligation would of itself be gravely sinful. Apart even from these circumstances, the promisor may intend to give the other a right to secrecy in justice, and then he will be bound to observe it under pain of mortal sin.
A secret which is confided to another under the condition that secrecy is to be observed constitutes the matter of an onerous contract and binds more strictly than either a natural or a promised secret. Such are secrets of office which officials of all sorts become aware of in the execution of the duties entrusted to them; professional secrets of doctors, lawyers, priests, and others, who are consulted as experts by people in doubt or difficulty; as well as all others which are entrusted to any person under the express or implied condition of secrecy.
2. The obligation to observe a natural secret will cease after the secret has become public property. The party whose secret it is may sometimes be reasonably presumed not to be unwilling that the matter should be communicated to another, as, for example, to somebody who can and who will be of assistance to him. If the public good requires that the secret should be made known in order to prevent public wrong, the obligation of secrecy will cease, for the public welfare is of greater importance than that of an individual. If serious harm threatens one's self or some other innocent person, or the party whose secret is in question, and the harm can only be averted by making known the secret, this will be allowed in the case of natural or promised secrets. The right of defence from impending evil prevails over that of natural and promised secrets.
Even the obligation of the third class of secrets will cease when they cannot be observed without serious harm to the public weal. The natural law, however, which requires that people should be able to consult others in their difficulties in all security, demands that this class of secret should be observed in the case when even serious harm threatens some innocent person, unless he whose secret is in question is the cause of the impending evil. Thus, if I know as a professional secret who is the real culprit in the case of a crime wrongly imputed to an innocent person, I may disclose the real culprit if by some special means he caused the false accusation of the innocent person, otherwise I must keep the secret. It is a disputed point among theologians whether I am bound to observe a secret at the peril of my life when it was entrusted to me under that express condition, some maintaining that no one can pledge his life in that way, others more probably holding the contrary. Whether or not I am bound at my own serious loss to keep a secret entrusted to me under the condition of secrecy depends to some extent on circumstances. Sometimes I cannot be supposed under the circumstances to have bound myself by so strict an obligation; but as a rule professional secrets will continue to be binding even when the observance of them entails serious loss.
3. We are bound to make known natural and promised secrets at the command of lawful superiors. The obligation of obedience to lawful authority prevails over that of secrecy due to individuals in those cases. And so a witness in a court of justice when lawfully questioned about what he knows under the obligation of natural or promised secrecy must give the evidence required. Similarly, secret impediments to marriage must be declared according to the precept contained in the proclamation of banns. Professional secrets, however, and, in general, secrets which belong to the third class, are privileged, and must not be declared, unless they have ceased to be binding for some such reason as those mentioned above. Secrecy in this case is demanded by the natural law, which gives the fullest possible security to those who consult others in their difficulties, and even the precept of one's superior cannot avail against the natural law, as St Thomas teaches. [97]
English law acknowledges the privilege of state secrets and of the professional secrets of lawyers, but in the case of doctors and clergymen it does not as yet go the full length of the doctrine laid down above.
4. The doctrine with regard to secrets is applicable to the opening and reading of letters, unless it is known that they contain no secrets and the writer is not aggrieved. It is, however, a general rule of Religious Orders that letters written by and to religious may be opened by the superior, except such as contain matters of conscience, and communications between higher superiors and their subjects.
- ↑ Exod. xx 2, 3..
- ↑ Luke xviii 1.
- ↑ Luke xi 9.
- ↑ Deut. xviii 10-13.
- ↑ Summa Theol., 2-2, q. 96, a. 3, ad 2,
- ↑ Summa, 2-2, q. 99, a. 3, ad 2.
- ↑ c 21, C. 17, q. 4.
- ↑ Acts viii 1 8.
- ↑ S.C. Indulg., July 12, 1847.
- ↑ i Cor. ix 14.
- ↑ Exod. xx 7.
- ↑ Matt, v 34.
- ↑ Jer. iv 2.
- ↑ Can. 1318, 1321.
- ↑ Theol. Mor., 3, n. 226.
- ↑ Eccles. v 3.
- ↑ Deut. xxiii 21.
- ↑ Matt, xviii 18.
- ↑ Constitution of Leo XIII, Conditae, December 8, 1900.
- ↑ Exod. xx 8.
- ↑ Prop. 53.
- ↑ Prop. 53.
- ↑ Encyclopedia of Laws, s.v. Sunday.
- ↑ i West., d. 23, n. 1; Can. 1245, sec. 1.
- ↑ Exod. xx 13.
- ↑ Summa, 2-2, q. 101, a. 3.
- ↑ St Thomas, Summa, a-a, q. 101, a. i.
- ↑ Laymann, lib. 3, tract. 4, c. 8, n. 13.
- ↑ St Thomas, Summa, 1-2, q. 10, a. xa.
- ↑ Eph. v 33-34.
- ↑ St Thomas, Summa, 2-2, q. 102, a. I.
- ↑ 1 Tim. vi i.
- ↑ Eph. vi 5-7.
- ↑ Leo XIII, I.e.
- ↑ Leo XIII, I.e.
- ↑ ibid.
- ↑ Jas. v 4; Can. 1524.
- ↑ Leo XIII, I.e.
- ↑ Leo XIII, I.e.
- ↑ Trent, sess. 23, c. i, de Ref.
- ↑ i Tim. v 17; Heb. xiii 17.
- ↑ Rom. xiii 1-2.
- ↑ Leo XIII, Encyclical Letter, January 10, 1890.
- ↑ Exod. xx 13.
- ↑ Rom. xiii 4.
- ↑ Exod. xxiii 7.
- ↑ Pastoral Medicine, p. 16.
- ↑ Medicina pastoralis, p. 220.
- ↑ Exod. xx 14.
- ↑ Exod. xx 17.
- ↑ Cf. Book I, p. 8.
- ↑ i Cor. vi 9; cf. Gal. v 19.
- ↑ Eph. v 5.
- ↑ Prop. 48, condemned by Innocent XI, March a, 1679.
- ↑ Summa, 2-2, q. 154, a. 2.
- ↑ i Cor. vi 10.
- ↑ Theol. Mor., 3, n. 478.
- ↑ St Alphonsus, Theol. Mor., 3, n. 484.
- ↑ ibid.
- ↑ St. Alphonsus, 3, n. 466.
- ↑ Exod. xx 15.
- ↑ Exod. xx 17.
- ↑ Leo XIII, on the Condition of Labour, May 15, 1891.
- ↑ Encyclical on the Condition of Labour, May 15, 1891.
- ↑ Eversley, Law of the Domestic Relations, p. 599.
- ↑ Stephen's Commentaries, 2, p. 277.
- ↑ ibid., p. 283.
- ↑ Props. 10, 32, 33, 36 of Wyclif; and Prop. 26 of the Syllabus.
- ↑ Can. 1519-1521, etc.
- ↑ Can. 1512.
- ↑ Can. 1512.
- ↑ i Cor. vi 10.
- ↑ Principles of the Common Law, p. 323, 6th ed.
- ↑ Sale of Goods Act, i8g3j sec. 24.
- ↑ Encyclopedia of Laws of England, s.v. Stolen Goods.
- ↑ Stephen, 2, p. 60.
- ↑ Encyclopedia of Laws of England, s.v. Stolen Goods.
- ↑ Sale of Goods Act, 1893, sec. 12.
- ↑ Bucceroni, i, n. 1341.
- ↑ St Alphonsus, 3, n. 569.
- ↑ Encyclopedia of Laws of England, s.v. Conversion, Action of.
- ↑ Bucceroni, i, n. 1354.
- ↑ Chitty, The Law of Contracts, p. 412.
- ↑ St Alphonsus, 3, n. 552.
- ↑ Bucceroni, i, n. 1369.
- ↑ Lugo, disp. ii. n. 77.
- ↑ Exod. xx. 16.
- ↑ Jas. iv 13.
- ↑ Rom. ii i.
- ↑ Rom. xii 10.
- ↑ Rom. xiii 7.
- ↑ Matt, v 22.
- ↑ Summa, 2-2, q. 110, a. i.
- ↑ De Mendacio, c. 3.
- ↑ Col. iii 9; Eph. iv 35.
- ↑ C. Super eo, De usuris.
- ↑ Summa, 2-2, q. 70, a. i, ad 2.