55. On the Obligations of Parents

1. Melania, a widow, has two sons; one she loves greatly, but the other she can scarcely bear to see, for she herself did not nurse him. Although this one is of a good disposition and of no common talent, the mother experiences toward him a natural antipathy, which, as she says, she cannot overcome. Hence it is that she constantly reproves him with words and afflicts him with insults and even beatings. But the other son, whom she had nursed, although he is of a depraved disposition and of rather mediocre talent, she heaps with every blandishment. She continually bestows hand-gifts upon him, gives him precious objects, notable sums of money, and also a certain small villa, bought by her, which she pretends was given to him by an uncle. Indeed, in her testament she assigns to this one the whole remaining disposable part.

Q. 1. What are the obligations of parents toward children? 2. Has Melania sinned in the case?

R. To the first. Cf. I. M. 671 seqq. To the second. 1. It cannot be doubtful that Melania, by that manner of acting, sins, and sins gravely against piety. For in the correction and chastisement of her son she gravely exceeds moderation, and in these things she is led by no honorable motive of good toward the son, but by a natural and disordered passion; and this perhaps she cannot overcome insofar as she cannot extinguish it in herself; but she certainly can overcome it insofar as she does not act according to it, but according to right reason. So pertinacious a manner of acting on Melania's part can at length inflict grave harm on her son. "You fathers," says the Apostle, "do not provoke your sons to anger." Eph. 6:4. Immoderate chastisement harms children much. It renders them morose, dull, pusillanimous, and sometimes affected with despair. In place of the love owed to parents, it is accustomed to produce contempt and hatred. Reuter, Neoconfessar., p. 2, 6, 4, q. 3, n. 9; Gur., Comp. 375.

2. In those gifts which Melania lavishly bestows in every way upon her other son, she also sins gravely against charity; for she is led by aversion of mind against her other son, to whom, by such excessive gifts, she causes evil. But from this acceptance of persons, with the lapse of time, grave dissension and discord can also arise between the two brothers. Does she also sin gravely against legal and commutative justice? It seems it must be denied.

For through various acts between the living and through the testament she gives and bequeaths to her favorite son only the disposable part. Wherefore, if the legitime of the other son remains untouched, Melania seems to be exempt from grave sin against justice. But it would be otherwise if she harmed this legitimate part, and then the other son, after he had already received it, would be held to restitution, but not before the sentence of a judge. "But it must be noted," says St. Alphonsus, l. 3, n. 740, "that the donee is held to restore nothing to the children before the sentence of a judge." I. M. 673; G. 822-824.

2. Titius first contracted an ecclesiastical marriage only with Bertha, from whom he begot children. Then, having left his family, he entered civil nuptials with Caia, from whom he begot other children. Being near death, he made a testament, and in it, with not even a word having been made about Bertha and her children, he assigned the whole inheritance to Caia and her children. To what are these heirs held in conscience?

3. Caius, with children received from a merely ecclesiastical marriage, dies intestate; and thus the inheritance civilly devolves to his collaterals. What of these in conscience?

4. Seia, when she could not, after an ecclesiastical marriage contracted with Titius, induce him to complete the civil act, steals something from his goods, so that she may compensate herself for the legal part which, at his death, she will not be able to obtain. Can she justly conduct herself thus in conscience?

Q. What must be responded to the various cases?

R. As regards the civil law, these things must be noted in advance:

1. Civil laws, definitive of right and translative of dominion of property, oblige in conscience. Of this sort, moreover, are the laws which define the legitime of necessary heirs and the legitimate succession of legitimate heirs.

2. Laws are to be interpreted in a fitting way, if this is possible, and are not to be drawn to an iniquitous and unjust disposition, if this is not necessary. Now the law of civil marriage, if it is understood of a true marriage to be entered, where the Council of Trent has been promulgated, is iniquitous and unjust, and then must not be attended to. For no legitimate right can flow from a law which is contrary to natural and divine right, and which is not from the use of legitimate authority but from its abuse. But this interpretation is not necessary. For it can be understood only of a certain exterior form, so that there may be certainty concerning true marriage in order to its civil effects, which depend only on true marriage, from the very fact that they are the civil effects of marriage; and by no means on that legal form, which is only for the proof of true marriage. Besides this common and extrinsic reason, there is also a proper and intrinsic reason for this interpretation. For first, that law concerning civil marriage has its foundation in the power which the civil authority has of ruling the civil effects of marriage. Therefore, if an effect supposes its cause, that law cannot be understood except of true marriage, that is, of the mere civil declaration or proof of true marriage. Moreover, the law itself distinguishes between marriage, concubinage, and adultery; and, what is more, between valid and null marriage. Therefore again it must be understood only of true marriage, that is, of the proof and declaration of true marriage. - Moreover, some civil laws have been approved by the Church and oblige, others have been reprobated by the Church and do not oblige, others have neither been approved nor reprobated, which in particular are to be examined in order to define the force and nature of the obligation. Now the law of civil marriage, if again it is understood of true marriage to be entered, has been reprobated several times by the Church. But if it is understood only of the legal form and civil proof of marriage, thus that law has never been reprobated; indeed, it has been positively approved. Nor indeed is that law approved in another sense, except insofar as the civil authority can dispose concerning the civil effects of marriage, namely true marriage. Cf. the letter of Leo XIII, Il Divisamento, 8 Feb. 1893, to the Cardinal Bishop of Verona and to the Episcopate of Venice, concerning the schema of the law on the precedence of civil formalities with respect to religious marriage.

3. It is worthwhile to report certain words of the praised letter, which bear most upon the matter: "It is not inappropriate to declare once more that the civil power may indeed dispose of the civil effects OF MARRIAGE, but let it leave to the Church what regards marriage in itself; LET IT ADMIT THE FACT OF TRUE AND LEGITIMATE MARRIAGE, as it was instituted by Jesus Christ and practiced by the Church, AND FROM THERE TAKE ITS MOVES to grant or deny the effects which follow from it in civil society." Lower down the Supreme Pontiff reprobates the civil law in this same matter, which indeed could not bring it about that a marriage legitimately contracted be null, "because it is a matter of natural and divine right, against which there is no power in the world that can prevail; but it would put into operation all means to make it be considered as null, to impede its duties, AND TO FRUSTRATE THE EFFECTS WHICH LEGITIMATELY FOLLOW FROM IT." And afterward the Supreme Pontiff asserts that civil effects of this sort pertain solely to the civil State, and that sufficient provision had been made by the State regarding them, even beyond measure, through civil marriage, without the precedence also of the same marriage being imposed.

4. The same observation must be made as regards the civil law constituting the legitime, in testamentary disposition, and legitimate succession, in legitimate disposition, in favor of the spouse and legitimate children. Cf. C. I. 721. This law is pious and just, and it must be understood piously and justly only of a true spouse and of children born from true marriage, who truly and uniquely are, and are called, legitimate. But impiously and unjustly it would be understood of an adulterous concubine and adulterine children, whom the law itself punishes and excludes from any succession. Nor indeed would the same law be fittingly and honestly understood of a merely fornicating concubine and fornicating children; nor would that law be understood coherently in this way, since the law itself distinguishes between merely natural children, born outside marriage, and legitimate children, born from marriage. Moreover, the law here disposes in reality concerning the civil effects of marriage. Therefore it presupposes true marriage, and accordingly treats of truly legitimate children and a true spouse. Cf. tit. Qui filii sint legitimi.

As regards the natural law: 1. No right belongs to collaterals and ascendants from natural law and from strict justice; but only from civil law, founded on charity and piety. Wherefore, with the assistance of civil law and legitimate succession failing, and with testamentary disposition also failing for them, ascendants and collaterals cannot exclude from testamentary succession the spouse and children, whether only civil marriage was present, or whether only ecclesiastical marriage was present. For these legitimately succeed in either case, as at least voluntary heirs, if testamentary disposition was present for them. But if testamentary disposition failed and only civil marriage was present, they also legitimately succeed, as voluntarily called to the inheritance by the testator himself, who, entering civil marriage and dying intestate, is now considered to bestow rights upon the wife and children from the civil marriage, according to the very laws to which he remits himself. If again testamentary disposition failed, and also civil marriage, but only canonical marriage was present, then from natural law ascendants and collaterals have no right to succession, nor do they have any right to succession from civil law, since a truly legitimate spouse is present, and truly legitimate children are present; to whom, in the case, the civil law itself gives assistance.

2. The spouse and children, as many think, have no strict right from natural law and from justice to succession, but only from civil law, founded on equity and piety. Others, on the contrary, hold that the spouse and children have a right to succession from the natural law itself. But those who opine thus in reality fall back into the prior opinion. For they must finally necessarily agree in this: that a right of this sort is not a right in the thing, but to the thing; it is in no way a right from strict justice, but one arisen only from piety and founded in piety, to which natural equity consequently accedes. But this right certainly is neither to the whole inheritance nor to this principal part of the inheritance, but only to some goods, namely to food and due provision, if they need these things. Wherefore, with the assistance of civil law failing, they could claim nothing else, even from natural right. But the civil law admits the spouse and children to legitimate succession, and establishes the legitime for children, but not always for the spouse. Nevertheless the Italian Code also assigns a legitime to the spouse.

Hence to the first case it is answered: Bertha and her children have a right to the whole inheritance, by force of legitimate succession, according to the civil law. For the testament in favor of Caia the adulteress and the adulterine children, with the legitimate wife and legitimate children having been passed over, is of no force with respect to the adulterine children, declared incapable by the law itself, and to whom only food is owed, C. I. 767. But with respect to Caia the adulteress, no more can be owed to her by force of the testamentary disposition than if she were the legitimate spouse of Titius; this cannot exceed, in the case, the portion of one of the children, within the limits, nevertheless, of the disposable part, C. I. 770; CC. 10, 13, Qui fil. sint legit.

To the second. The collaterals of Caius have no right to the inheritance of Caius, neither by force of testamentary disposition, which did not take place, nor by force of legitimate disposition, since, when legitimate children, or legitimate children and a legitimate spouse, are present, as in the case, collaterals are excluded.

To the third. Seia, in the case, from what has been said does not seem to be disturbed. - D'Annib., 3rd ed., p. 2, n. 342, notes 22, 23; Gennari, Consult. etc., cons. 24, 27; Scav., l. 4, n. 560, cas. 6.

5. Aristides, married and having legitimate children, committed adultery with Vincentia, from whom he had a son and a daughter. The matter is hidden and remains so; for Vincentia died before the adulterine children arrived at the use of reason. But Aristides provided for the sustenance and right education of his children, as of orphans altogether foreign to himself, placing the son in a certain college of religious, and the daughter in a house of nuns. Hence the son, now having become older, is initiated into sacred orders, and Aristides establishes a patrimony for him; but the daughter contracts nuptials, and he establishes a fitting dowry for her. But Aristides makes a testament and leaves the disposable part to each, son and daughter, while pretending a work of charity toward abandoned orphans, whom he also commends to his testamentary executor.

Q. 1. Do adulterine children succeed to their parents? 2. Has Aristides acted rightly?

R. To the first. Cf. I. M. 663, 1038, 1039, 1045. To the second. Aristides acted rightly indeed in providing for the sustenance of his adulterine children. For it is of the law of nature that children be nourished by parents, although they are illegitimate, because they are always children. If, generation being considered, all are children in the same way, it follows that, if parents, because they are the principle of generation, the cause and authors of children, owe food from the law of nature to legitimate children, by the same right likewise and by the same reason they must provide the same things to any illegitimates whatsoever, with respect to whom they have the same character of principle and the conjunction of blood. Hence the contrary disposition of Roman law, Auth. Ex complexu, C. de Incest. et inutil. nupt., Auth. Quibus modis naturales efficiuntur sui, cap. fin., was corrected by Canon Law, C. Cum haberet de Eo qui duxit in matrimonium etc., C. Per venerabilem Qui filii sint legitimi. But by more recent civil law, food is positively conceded to adulterine children of this sort. C. I. 767; C. G. 762; C. H. 845; C. A. 166.

Aristides also acted rightly in providing for the right education of his children, and that so prudently and secretly that no dissension and no scandal would arise in his family. For this also is required by natural law itself, and is confirmed by civil law also, since food granted by civil law extends also to fitting instruction, according to the condition of the person. C. I. 138, 143, 846; C. G. 203, 308, 762-664; C. H. 143; C. A. 166.

Nor indeed does Aristides seem to be disturbed when he establishes for the son a patrimony and for the daughter a fitting dowry, by no means excessive or inofficious. For in C. Cum haberet de Eo qui duxit in matrim. etc., it is said that necessities must be furnished to children of this sort according as means suffice. But among necessities, in the case, a patrimony is counted for the son, and a dowry for the daughter; for a son lacking a patrimony perhaps will not be able to ascend to sacred orders, nor will a daughter lacking a dowry be able to marry, and by not marrying perhaps she would live shamefully. C. I. 143; C. G. 208; C. H. 143, 146; C. A. 166.

But Aristides does not act rightly in also instituting his two adulterine children as heirs, to the grave damage of the legitimate children, from whom for this reason the whole disposable part is subtracted. Adulterine children by law are incapable of succession, whether legitimate or testamentary; likewise they are incapable of donation. Hence, if the son and daughter knew their condition, they would be held to restitution. L. Si quis incesti, C. de incest. nupt.; L. 1, C. de Naturalib. liber.; C. I. 752, 767, 1053, 1055; C. G. 762, 908, 911; C. H. 139, 625, 628, 845; I. M. 1039, 1045; G. 868.

6. Iacobus, a priest, a beneficiary, since he had had a son from a certain unmarried woman, instituted this son and his wife as heirs of all his patrimonial goods and of the goods which he was able to collect from the fruits of the benefice through several years. He thinks that he can do this with a safe conscience, since the law speaks only of adulterine and incestuous children, and excludes only these, besides food, from all succession. C. I. 180, 767. Besides, he says, the civil law certainly cannot touch at least ecclesiastical revenues; and he left these directly to his son; for the patrimonial goods he left to his son's wife, whom, since she is in no way his daughter, he judges in no way able to be repelled from the inheritance. Has Iacobus acted rightly?

Iacobus has not acted rightly. The disposition in favor of the sacrilegious son is invalid, and likewise the disposition in favor of the wife of the same son, as an interposed person, is also invalid. This is established from the Constitution of St. Pius V, Quae ordini, by which all faculties of testating and disposing concerning ecclesiastical goods, and also, as regards clerics, concerning patrimonial goods in favor of any illegitimates whatsoever, the incapable and incapacitated, are revoked. These things are contained in § 4: "Henceforth, however, we more strictly prohibit that such things be done either for the aforesaid illegitimates of either sex, or for their spouses, or for their parents, children, descendants, ascendants, or other relatives, whether the illegitimates are dead or living, even with a view to poverty, dowry, or any other pious work whatsoever; nor shall they ever succeed in the aforesaid things, goods, monies, rights, jurisdictions, and actions, whether wholly or in part, or have them come to them, although supported by dispensation, even through the aforesaid circuit; nor shall any concession, donation, transfer, or other disposition be made concerning these to another or others, so that other goods, similar or dissimilar, may be conceded to illegitimates or to others above-mentioned."

And these things can in no way licitly and validly be done, since St. Pius V, ibid., § 2, decreed that illegitimates in no way can "either immediately, or through interposed persons, and in whatever manner, succeed in the goods of an ecclesiastical father, or have those goods otherwise come to them, even through any circuit of multiplied successions to others who are capable." And ibid., § 5: "But if anyone of the aforesaid should be a violator of the present letters, the testament, donation, legacy, and disposition shall altogether not hold, nor shall it be valid even with respect to others capable and other things," etc. Sanch., Cons., l. 4, c. 3, d. 20; Roncaglia, Consil., cons. 28.