Whether, in the conflict of two equally probable opinions on the objective honesty of an act, it is lawful to follow the less safe favoring liberty, leaving the safer favoring the law?

Many probabilists, conquered by the arguments brought forward for the assertion of the preceding conclusion, in order that vague probabilism may have some worth, acknowledge at length that it is not licit to follow the less probable and less safe opinion, when a solidly more probable and safer one concurs; but they contend that it is at least licit to follow one equally or almost equally probable but less safe, leaving aside the equally probable safer one. Against whom

I say: In the conflict of two opinions equally probable concerning the objective honesty of an act, we are held to follow the safer.

It is proved. 1° by almost all the arguments whereby we proved the prior conclusion. Reread that. I only renew the third reason.

When both parts of a contradiction are equally probable, neither is properly and expediently probable. Therefore all the principles of the probabilists collapse. — Proof. of the antecedent. That is properly and expediently probable which is prudently approvable, or which is worthy that it be approved and assent be rendered unto it as true, although with fear of the opposite part. But when both parts of a contradiction, all things weighed, appear to anyone equally probable, he cannot prudently approve either as true in these circumstances ¹, or neither is sufficient for obtaining his prudent assent. Therefore. — The major is the adversaries'. — Proof of the minor. When both parts of a contradiction are equally probable, the motives of each mutually elide themselves and weigh equally, so that as much as these strive to obtain assent, so much do those strive toward the opposite; whence the intellect remains suspended and truly doubtful between the two ¹: just as a balance remains suspended in equilibrium while in either scale there are equal weights, or as a stone drawn toward opposite parts by a twofold equal force rests unmoved. Therefore. ¹ As certainly true, I concede; as truly probable, I deny. ¹ Indeed, if both propositions be looked upon in themselves or speculatively. But it does not follow from this that the equilibrium of the mind cannot be resolved practically by the weight of some reflected principle placed into the balance on this side or that. And this the probabiliorists themselves do, who affirm that the equilibrium must be resolved by the apposition of their reflected principle: « In doubt the safer part is to be followed. »

The probabilists say: The will can command assent to one part, as, e.g., in doubt concerning someone's probity, the will commands that he be judged good ². ² If anyone once instilled such an argument, he knew not, or had forgotten, that judgment of intellect necessarily precedes determination of will, and that will, as St. Thomas teaches and proves, is a blind power which follows the lead of intellect, and not intellect the lead of will.

I answer. according to some, impossible that the will efficaciously command the intellect assent to one part where the moments are equal. But, granted this to be absolutely possible, at least certainly it cannot come about prudently and rationally, but at most according to a mind preoccupied by passion or affection, not moved by reason: which suffices us. The reason is, because to judge prudently and rationally is to judge according to the merits of the cause and the moments of reasons; but he judges not according to the merits of the cause and the moments of reasons who judges for one part rather than for another when the moments are equal on both sides. Thus no one will reckon prudent and rational that empire of the will saying to the intellect: « Although no reason move thee to opine this contract licit rather than to opine it illicit, I will nevertheless that thou opine it licit rather than illicit. » Nay, on the contrary, there is none who does not disapprove such empire as imprudent and rash.

If thou say: From affection toward one part, that part which before appeared equal will appear more probable, I answer. 1° This granted, one already runs outside the thesis. 2° From affection one part cannot appear more probable, except insofar as affection obscures the intellect, and the obscuration inclines and makes him attend less lightly or not at all to the reasons for the safer part, more or solely to the reasons for the less safe part; and this is to act imprudently and irrationally.

To the example of him who from empire of will judges his neighbor probus in doubt concerning his malice, I answer: in this case there is present a certain rectifying principle of that empire, namely the law of charity and justice forbidding that one judge his neighbor evil unless it stand certain that he be such. But the probabilists have nothing similar.

It is proved. 2° most invincibly. This is the constant and undoubted rule of law: « In doubts the safer part is to be chosen. » But he who moves among two equally probable opinions is doubtful ¹, as is manifest from what was said. Therefore. ¹ He is doubtful with speculative practical doubt regarding the intrinsic truth of the opposed propositions: I concede; and if, such doubt not shaken off, he act with practical practical doubt about the honesty of the action, he sins formally, again I concede. If truly by help of some certain reflected principle he could discuss the practical practical doubt, so that he be certain that he acts honestly, even while the speculative practical doubt remains, I deny that he sins. Of this more fully below.

Proof. of the major. 1° Cap. Significasti, de homicid., lib. V Decretal., tit. 12, c. 18: in doubt whether a priest killed a man, he must be judged a homicide and irregular; because, as Innocent III says, « in this case it is safer to abstain than rashly to celebrate, for the reason that in the one no danger, in the other indeed great danger is feared. » Cap. Petitio tua, same tit., c. 24: when a cleric fighting against enemies of the Catholic faith struck some, and thence doubted whether he had killed anyone and incurred irregularity, Honorius III answers thus: « We command that, if thy conscience bite thee concerning the killing of anyone in that conflict, thou reverently abstain from the ministry of the altar: since it is more advisable in such doubt to abstain than rashly to celebrate. » And cap. Ad audientiam, same tit. ², when a certain priest, wishing to correct one of his household, wounded him with a knife slipping by chance from its sheath, it was doubted whether he had died from the occasion of the wound. Clement III responds thus: « We have judged that answer should be given to your discretion that, since in doubts we ought choose the safer path, it befits you to enjoin upon the aforesaid priest that he minister not in holy orders » ¹. ² Regarding the chapter Ad audientiam..., first it must be noted that the truth of the fact was not yet then explored, namely whether death had occurred from such a wound; for which cause the text subjoins: « If he die of another infirmity, he can minister divine things. » Therefore wisely did the Pontiff decree that meanwhile the priest not celebrate; for he said that in such doubt the safer way was to be chosen. It must be noted secondly, with Navarro and Suarez, that in that case there was no question of observing any precept, but only of a certain convenience, that, if it afterwards stood certain that the priest had been a homicide, there should be no scandal for the people to see him celebrating. The same was decreed in a similar case of doubtful homicide in cap. Petitio tua, 24 de homicid., where it was said: « Since it is more advisable in such doubt to abstain than rashly to celebrate. » Who sees not that in these cases, to put scandal to flight, it was necessary that the safer way be chosen, abstaining from celebration? ¹ Since in these cases there is question of factual and practical doubt, aptly says St. Ligorius, Morale systema, n. 79: « I concede that [these canons] are generally to be taken regarding all practical doubts and doubts of fact, such certainly were those which occurred with respect to the cases of the aforesaid canons, but not regarding all speculative doubts and doubts of law, as say St. Antoninus, Christianus Lupus, Joannes Nyder, Dominicus Soto, Suarez, Tabiena, Sylvester, Angelus, Henriquez, Angles, St. Bonaventure, Gerson, Pelbartus, and others almost commonly; for they say the aforesaid rule of the canons regarding speculative doubts is of counsel, not of precept. »

2° Cap. Illud, de clerico excommunicato, lib. V Decretal., tit. 27, c. 5. When the bishop of Hildesheim doubted whether the excommunication lata sent against him by the bishop of Magdeburg, Legate of the Holy See, to be borne without premised monition and without signification of the lata censura, bound him, and in this doubt had celebrated divine offices, Innocent III wrote back to the Chapter of Herbipolis in these words: « Although however he seem not to have stood wholly culpable in this, because nevertheless in doubts the safer way is to be chosen, even if he doubted of the sentence lata against him, he ought nevertheless rather to abstain than handle the ecclesiastical sacraments... While making mercy toward him, we have not judged the punishment which canon threatens those who after excommunication have presumed to celebrate divine offices... to be inflicted upon him » ¹. ¹ On cap. Illud the same Doctor says: « There the case was that a certain bishop, notwithstanding public fame of excommunication sent against him, chose rather to celebrate rashly. Wherefore by right we say he was punished with deposition by Innocent III; for, the doubt of excommunication persisting, he was held to employ diligence that he be made more certain of the truth, and in the meantime he ought to abstain from celebration. Therefore deservedly said the Pontiff: « Because in doubts the safer way is to be chosen, even if he doubted of the sentence lata against him, he ought nevertheless rather to abstain than handle the ecclesiastical sacraments. » Add that his jurisdiction had already become doubtful, and knowingly nullily and invalidly he committed himself to the danger of exercising many acts of his ministry and office. He stood therefore in practical doubt, which previously of necessity had to be discussed.

3° The Clementina Exivi, de verborum significatione, the Friars Minor asking the Apostolic Seat whether under mortal sin they were held to those things expressed in the rule of St. Francis in words of imperative mode, Clement V responds thus: « We therefore, since we delight in sincere consciences, attending that in those things which regard the salvation of the soul, to avoid grave remorse of conscience, the securer part must be held, etc. » ^{2 2} St. Ligorius to the Clementina Exivi answers thus: « The case was, as is read in the same text: Antecedently it had been doubted by the Brothers whether the rule obliged only to the vows of poverty, chastity and obedience. But Nicholas III pope had already declared it to oblige also to those evangelical counsels which were expressed in the rule in obligatory words of precept or equivalent to precept. Then the Brothers supplicated Clement V, that he declare to them « what things must be judged equivalent to precepts. » Therefore Clement, before he had expounded those things which seemed equivalent to precepts by force of the words and by reason of the grave matter treated, premised those words: « Ad Therefore in that case there was no question of two equally probable parts, but only whether there were obligation to follow that part which, according to the rigor of the rule and according to what Nicholas III had already declared, was not only safer, but was uniquely safe: since it already stood that the rule by force of the words and gravity of the matter obliged to observances, as precepts, not only the three principal vows of religion, but also the evangelical counsels which were set forth in the rule, and therefore these themselves could not be passed over without grave remorse of conscience. Hence said Clement, to avoid such remorses, that the securer part must be held, which in very fact was uniquely true and uniquely secure, and on the other side no reasons supplied which could excuse the transgression of those counsels from grave fault. »

4° Cap. Dominus, de secundis nuptiis, lib. IV Decretal., tit. 21, c. 3. Lucius III, teaching how Christians captive among Saracens, who had entered a second marriage, and now doubted of the death of the prior spouse, ought comport themselves, says: « If some man or woman... judge that there should still be doubt for them of the death of the prior spouse, let him not deny the debt to her who married him if she ask it, which however shall by no means be exacted from him. » Likewise cap. Inquisitioni, de sentent. excom., lib. V Decretal., tit. 39, c. 44: Innocent III, asked what is to be done by a spouse anxious about an impediment of marriage and its validity, the other party ignorant and doubting nothing, answers in this mode in these words: « Since conscience beats upon the mind from probable and discreet credence, though not evident and manifest, he can indeed render the debt, but he ought not demand it; lest in either respect, against the law of marriage [denying the debt], or against judgment of conscience [demanding the debt], he commit offense. » Plain is it that the holy Pontiffs resolve these doubtful cases according to the rule of following the safer. In such cases namely, it is safer to render the debt, lest the right be violated which the contracting party bona fide certainly believes himself to have; it is safer not to demand: because, since the law of marriage binds not to demand, he would expose himself without necessity to danger of illicit copula. But the probabilist would resolve that both can be done licitly, both render and ask ^{1 1} A true probabilist would resolve that the spouse doubting of the death of the prior compartner could not licitly use his own right while it is merely probable; for we admit not this principle alleged by some: « He who acts probatively acts licitly. » For probability per se can produce nothing but practical doubt, which doubt standing, the safer part is to be chosen, until moral certainty of the honesty of the action can be acquired in the mode which shall be declared below.

The objections are solved.

Obj. 1°: No law, even existing a parte rei, binds subjects proximately and in second act, as long as it has not been sufficiently intimated and promulgated to them without their fault. But, as long as, after all diligence employed, there remains truly, certainly and solidly probable among all that no prohibitive law of an action is given, that law, if perchance it exist a parte rei, is not sufficiently intimated and promulgated to subjects. Therefore.

I answer. 1° from this argument it follows that he who doubts whether he has sinned mortally is not held to confess the sin, saying that the law of confession is not sufficiently promulgated; likewise that probabilist doctors teach ill that something is illicit when they know it to be upheld by others as licit. For then, according to the posited principle, law is not sufficiently promulgated.

I answer. 2° I deny the supposition of the minor: namely that it be certainly and solidly probable in doubt that no law be given; because, as we have proved, two equally probable opinions mutually elide each other, whence neither is certainly and solidly probable, but doubtful ¹. But, this granted, ¹ Very well, so long as the speculative practical doubt is not resolved practically by some certain reflected principle applicable to the matter.

I answer. 3° and principally. I distinguish the minor. As long as there remains certainly and solidly probable that no law be given, it is not sufficiently promulgated, if it be not equally certainly and solidly probable that it be given, I concede the minor; if it be equally certainly and solidly probable that it be given, I deny the minor. For then the law becomes doubtful, and therefore sufficiently promulgated to bind, if not directly and by its own force, at least indirectly and by force of general law, namely that in doubt the safer part must be chosen ¹, consequently that a doubtful law must be observed, because this is safer. ¹ Therefore, even according to the doctrine of probabiliorism, the speculative practical doubt must be resolved practically by some reflected principle.

Obj. 2°: Invincible ignorance of law excuses one acting from it. But certain and solid probability about non-prohibition of some action, even in concurrence of equal probability, is necessarily joined with invincible ignorance of law. Therefore. — Proof. of the minor. That ignorance is invincible which after so many years of study, so many exertions of minds, could not be overcome. But such is ignorance of law against whose existence truly and certainly probable motives militate. Therefore.

I answer. this argument, akin to the preceding, is solved in almost the same mode. 1° From it follow the same inconveniences as from the preceding. 2° It falsely supposes solid probability in concurrence of equal probability ². 3° and principally, I distinguish the minor. Certain and solid probability of non-existence of law, even in concurrence of equal probability for the contrary part, is certainly joined with invincible ignorance excluding distinct and certain cognition of law, I concede; excluding doubtful cognition of law, I deny. But in doubt the safer must be followed. And hence it can be answered, 4° distinguishing that same minor thus: Certain and solid probability of non-existence of law, even in concurrence of equal probability, is necessarily joined with invincible ignorance of the certainty of existing law, I concede; of its existence itself, I deny. And herein perhaps the adversaries hallucinate. Indeed he who foundedly doubts of the existence of a law is invincibly ignorant of the certainty of its existence, or that it certainly exists; but he is not invincibly ignorant that it exists, since he has doubtful cognition of it ¹. Nor before the probabilists was it ever heard that he who doubted of some thing was invincibly ignorant of it ²: thus a son who doubts whether his father lives is not invincibly ignorant, otherwise he could seize his goods; a woman who doubts of her husband's life is not invincibly ignorant that he lives, otherwise she could leap over into second nuptials; he who doubts whether he be excommunicated or irregular is not invincibly ignorant that he is excommunicated or irregular, otherwise he could safely comport himself as not excommunicate and regular, against the decisions of the holy Pontiffs; a woman who doubts the validity of her marriage is not invincibly ignorant that it is valid, otherwise she could both render and demand the debt, which the laws prohibit ³. ² If one of two opposed equally probable opinions be truly and solidly probable, therefore the other is similarly truly and solidly probable: otherwise probability would be at once equal and unequal; which implies contradiction. ¹ Doubtful cognition is not true cognition, but mere suspicion. ² He is invincibly ignorant of it, if he can acquire certainty of it in no way. ³ In these cases, as long as objective certainty is not obtained, moral subjective certainty of the honesty of the action can no more be obtained, without which one acts not licitly.

Obj. 3°: In doubt of existing or obliging law, possession stands for liberty. But in doubt the condition of the possessor is better, L. In pari (II), de Reg. juris, and Reg. 65 in Sexto. Therefore no one is constrained to observance of a doubtful law ⁴. ⁴ This argument is laid down below.

To this argument, which is one of the principal foundations of the whole of probabilism, there is a twofold adequate solution. The first denies the major; the other denies the minor outside the matter of justice. Therefore

I answer. 1° I deny the major; because, in doubt of existing law, either none or at least doubtful is the possession of liberty. But it stands that doubtful possession makes not the condition of the possessor better, not even in the matter of justice. — Proof. of the antecedent. 1° Possession of liberty is nothing else than right of doing what one pleases. For here there is no legal possession, which is defined: « Detention of a thing, with aid of body, mind and right. » Whence nothing else can be understood than right or power of doing something licitly. But man never had right of doing what he pleased in doubt of law; for never did he have right of doing anything whatever rashly and without consulted reason, which would happen if in doubt of law he chose not the safer. 2° He who doubts of law doubts of obligation of law, that is whether he is held to observe what the law commands or prohibits. Therefore possession of liberty in him is not certain, but doubtful. 3° While the probabilists say someone can licitly act against a doubtful law because he possesses liberty, they beg the principle and prove the same by the same. For liberty here is understood, not physical, but moral, which, as was said, is nothing else than right and power of doing something licitly. Whence to prove that one can licitly act against law because he has liberty, is to prove that he can licitly put forth this action, because he has right and power of putting it forth licitly; which is plainly to suppose what is in question, and to prove the same by the same. 4° Where there is certain existence of law, there is certain non-existence of liberty. Therefore where there is doubtful existence of law, there is doubtful liberty.

I answer. 2° I deny, or rather distinguish the minor. Better is the condition of the possessor in matter of justice, I concede; in matters of other virtues, I deny. For in matter of justice the condition of the possessor is better: 1° because, since men, on the one hand greedy of things, are not wont to leave their own among others, and on the other hand an upright man is not wont to acquire possession of anything without title, hence in doubt possession infers presumption that he is lord of the thing who possesses it; 2° because, since goods of fortune are subject to human power in order to common good, legislators decreed that in doubt the possessor can retain as his own the goods he possesses, on account of common good, namely lest dominions of things remain uncertain and lawsuits become unending, as we expound more widely in the tract. de Jure et Justit., dissert. IV, a. 3. But in matter of the other virtues neither reason runs. And truly never nor anywhere is it found in law that this law was enacted outside the matter of justice; but, on the contrary, laws everywhere decree, in matters of the other virtues, the safer part in doubt to be chosen.

Obj. 4°: According to rule of law 57 ff de Regulis juris, lib. 50, tit. 17, and elsewhere: « The more benign opinion is to be preferred. » Therefore the safer is not always to be chosen.

Some answer that this rule was given broadly for the external forum regarding penalties inflicted in doubts of fact, and this is to follow the safer; for it is safer to dismiss the guilty unpunished than to punish an innocent unjustly. Others answer that the more benign opinion in law is not called that which favors liberty or concupiscence, this indeed ought rather to be called malignant and perverse; but that is called more benign, according to jurists, which favors testament, religion, or oath; or, according to Sylvestrus, which favors the needy, orphans, widows and pilgrims. Moreover the more benign opinion, however it be understood, is to be preferred when it is consonant with rules of prudence, such as is not opinion favoring liberty against law, in concurrence of any probable opinion favoring the law.