18. On Invalidating and Penal Law

1. Eligius and Elodia, consanguineous in the third degree, ignorant of the law of the Church, contract marriage in good faith. Moreover, even if they should know the impediment, they cannot seek a dispensation because of the most dreadful persecution already stirred up against the Church for a long time; whence no recourse to the parish priest, to the bishop, or to the Roman Pontiff can be had. Wherefore they are also compelled to contract marriage clandestinely, notwithstanding the promulgation, in the place, of the Tridentine Decree concerning contracting marriage before the parish priest and witnesses.

Q. 1. What is the force and obligation of an invalidating law? 2. What as to the case?

R. To the first, cf. I. M. 223 seqq. To the second: the marriage of Eligius and Elodia is null. For 1. ignorance of a diriment impediment cannot make valid an act declared null by the legislator by an invalidating law. For an invalidating law directly and in itself regards the common good; and therefore, just as it does not cease in the case of a particular inconvenience and necessity of persons, although that be most grave and this be most grave, so also it does not cease in the case of ignorance and good faith. 2. But although, on account of that most grave and long persecution, by reason indeed of the common good itself, the impediment of clandestinity ceases; for the impossibility of recurring to the parish priest is common to all; nevertheless the other impediment of consanguinity does not cease, because here the inconvenience is altogether particular for some, not common to all. And indeed spouses of this sort can contract marriage with other persons. - G. 122, 124.

2. Among the evangelical workers of the Chinese regions a question arises concerning the cultivation, trade, and use of opium. Some contend that trade in opium is not illicit in itself, because the civil law, established by an unbelieving prince, and prohibiting it with most grave penalties, is penal. And although that law were prohibitive, and obliging in conscience, nevertheless it would not follow from this that its transgression is always a grave sin, since human laws, ordinarily speaking, do not oblige with grave inconvenience. Others, on the contrary, contend that that trade is altogether illicit; for in the Acta S. Sedis the use of opium is declared abuse; and therefore that trade is trade in a thing altogether illicit. Moreover the civil law prohibiting the trade in opium is moral and prohibitive, since it looks to protecting honorable morals.

Q. 1. What is the nature of a penal law, and from what is it recognized? 2. What as to the case?

R. To the first, cf. I. M. 227 seqq.; Enchir. Mor. N. 84. To the second: the response is clear from the following Instruction of the S. O., 29 Dec. 1891, to which the aforesaid question concerning opium gave occasion.

"1. From the responses given up to this point, if they are rightly understood, it is plainly clear that the Holy See has never disapproved that cultivation, trade, and use of opium which would serve medicine.

"2. It is also clear that in the decrees of the Sacred Congregations, both those which were issued concerning use to be permitted or tolerated, and those concerning abuse to be reproved, there is not an absolute, but a relative force. Namely, they regard the things which were proposed; therefore they are not to be mixed together indiscriminately with each other, but must be referred to the individual cases with their peculiar circumstances. If this is done, it will easily be found that they agree with themselves continually. Nor will any difficulty be able to arise from the fact that in the Acta S. Sedis sometimes the use of opium, sometimes abuse, is named; for the use which is disapproved is to be held as a true abuse.

"3. Since therefore the Sacred Congregation for propagating the Christian name had already opened its mind in the year 1830 concerning the abuse of which there is question, 'to remove doubts and perplexities of mind which can arise in particular cases,' it judged that an instruction should be drawn up, in which in a matter of such great moment it wished great account to be had both of the civil law forbidding the trade in opium, and of the most grave evils which from the abuse of opium are accustomed to emanate in those regions."

It decreed that this instruction be transmitted in the year 1848 to the Vicars Apostolic of Yunnan and Malacca, adding that, the general harm considered, every care had to be applied to extirpating the use of opium. Here the word use, as anyone easily understands, must properly be said to signify abuse. For there was not question of that use for which opium is prepared by nature, but of that which obtains among the Chinese, and which is situated in this, that they chew opium with the teeth, or drink it mixed with alcoholic potions, or draw it in by smoke.

"4. Therefore this Supreme Congregation in the year 1852 indeed declared generally illicit the trade and use of opium, but according as it was being explained, and ordered the Vicars Apostolic to apply every care to uprooting that use and trade. Nor did it judge that it should depart from this decree in the year 1858, although it had been reported by the Vicars Apostolic of Xensi and Hunnan that the civil law forbidding opium no longer existed.

"5. Nor is it to be thought to have departed from this prohibition, although to some it seemed otherwise, in the year 1878. For on account of peculiar and altogether extraordinary circumstances which were being explained, and on account of the suspension for a decade of the civil law forbidding the cultivation of opium in those places which had been devastated by war, and whose inhabitants had been brought to extreme poverty, the Supreme Congregation established only this, that the sacraments should not be denied to those Christian faithful who, in the Province of Keuy-Thceou, during that ten years' space permitted by the civil law, had cultivated opium solely for relieving poverty. And when it had been asked: whether those who, from inveterate habit, cannot bid farewell to opium except with danger of death, or grave detriment, can be admitted (to the sacraments), and whether opium can be taken by way of medicine, because danger from the habit is imminent, the response was: Affirmatively, yet with diligence and cautions having been placed, so that the abuse of opium, and the evil effects arising from abuse of this sort, may be avoided. By this response, which regards an exception, everyone sees that the general decrees by which the abuse of opium is reproved are by no means weakened; and this was clearly declared Wednesday, 4 July 1883.

"6. From all these things it follows: 1. that the cultivation of opium is indeed not illicit in itself, but in the Chinese regions, on account of abuses to which from long experience it is certainly established to be liable, it becomes illicit, and therefore generally must be forbidden to the Christian faithful; 2. nor otherwise must judgment be made concerning trade, which, although in itself it is not evil, nevertheless becomes evil on account of the grave abuses flowing from it for the most part and almost universally, and on account of the laws forbidding it; and therefore it is to be prohibited not only to those who exercise it directly, but also to those who favor it, namely who knowingly lend money at interest to merchants of opium, or lease fields for the cultivation of opium; 3. that the use of opium which is said to obtain in China has been held by the Church as a detestable abuse and declared illicit; 4. that use of the same can be permitted to those who have accustomed themselves to it, and who cannot altogether abstain from it without danger of death or grave detriment; likewise that opium can be taken by way of medicine, yet by this law, that the mode and quantity be observed which by no means exceed the medicinal measure, and with due diligence and cautions applied, so that abuse of the same and the evil effects flowing from it may be prevented." Acta S. Sed., v. 24, p. 506 seqq.

3. Osius, a beneficed cleric, at the beginning of navigation threw his breviary into the sea. Hence it happened that in the long voyage he could not recite the breviary. But he immediately repented of the deed. Must he restore the fruits?

R. He who has offended is not exempted from penalty from the fact that he has repented of the delict, whether after the effect has already followed, or even before the effect has followed, because penalties are for the example of others and for protecting the common good. Hence Osius, although he immediately did penance for his sin, is held to restitution of the fruits. Nevertheless, because in the proposed case the delict has a successive tract, D'Annibale, 3rd ed., p. 1, n. 312, note 76, judges that Osius is not to be disturbed. But this opinion is difficult, because Osius omits the office, and that omission is voluntary and culpable in the cause, and therefore in that successive tract it is always culpable in the cause, and consequently always liable to penalty. Wherefore it does not appear how he can make the fruits his own.

4. Elpidius vowed to fast if hereafter he should play at dice. But behold, from a contracted habit, wholly forgetful of the vow, he plays at dice. Is he held to the fast?

R. The vow, in the case, is a penal vow, and is a certain quasi-conventional penalty. Moreover, whether the nature of penalty be considered, or the intention of the one vowing be considered, it is clear that the penalty cannot be inflicted if no fault was present, and that Elpidius certainly did not wish to inflict that penalty on himself otherwise than if, namely, knowingly and prudently, he gave his attention to the game. Therefore Elpidius is not held to the fast.