VI. On Doubtful Conscience

139. Doubt is the suspension of assent concerning an apprehended object; not only as to the specification, but also as to the very exercise of the act, because, namely, there is not a sufficient reason for either side. Therefore doubtful conscience is that which remains suspended concerning the honesty of an action, inclining to neither side. This conscience, since it does not involve judgment, is not properly conscience, but rather a defect of conscience; for conscience is judgment, not suspension of judgment. Nevertheless this suspension of judgment is called conscience, inasmuch as with this suspension of judgment we often act in fact. Doubt of this kind can be joined with a reflex judgment concerning the insufficiency of the motive or reason for assenting, and then a judgment of this kind is more properly called doubtful conscience. - L. l. 1, n. 20; Suarez tr. 3, d. 12, s. 5.

140. "Doubt is divided into negative and positive. Negative is when probable reasons occur on neither side. Positive is when for each side, or at least for one side, there is present a grave motive sufficient for forming a probable conscience, although with fear concerning the opposite; therefore positive doubt almost always coincides with probable opinion." L. l. 1, n. 20. Likewise one doubt is strict, another broad. Strict doubt is had when the mind does not determinately embrace one side with its assent, but clings hesitatingly to both; broad doubt is when the mind adheres to one side, yet without giving it an altogether firm assent. - In the former sense is to be understood what St. Alphonsus has in Aertnys n. 70 at the end: "Where two opinions concur as equally probable, neither remains probable, but only doubtful." Certainly the mind can remain doubtful, that is, suspend assent; but it can also well adhere determinately to one rather than to the other, and even to both, if the motives are not contradictory but disparate, with an assent indeed not certain and firm, but probable, not without fear of the opposite. Strict doubt, therefore, can arise from the fact that on each side the reasons are equal or nearly equal; or also from the fact that on neither side are there reasons, or only light reasons are present on both sides. And just as, when reasons are present on both sides, although equal, reason can be moved by them to assent, so, when no reasons or only light reasons are present, the doubt is then to be disregarded, and consequently does not impede opposite probability or certainty. - In the present matter we are not treating of conscience positively and broadly doubtful, or probable, concerning which we have already spoken; but our discourse will be only of conscience negatively and strictly doubtful.

141. Doubt is further divided into speculative and practical. Speculative doubt is doubt concerning what is licit or illicit according to itself; practical doubt is doubt concerning what is licit or illicit, insofar as it is the rule of a work here and now. Speculative is that by which someone doubts concerning the truth of a thing, or concerning the liceity of a thing in general, or in the universal, for example, whether baptism with distilled water is valid, whether painting on a feast day is a servile work. Practical is that by which someone doubts concerning the liceity or honesty of an action in the particular, to be performed here and now, for example, whether on this feast day, in these circumstances, it is lawful for me to paint, whether it is lawful to baptize this boy with distilled water. To be performed here and now: for otherwise, although the action be considered as circumscribed by several circumstances, a speculative doubt can still be had concerning it, if there is not question of an action to be performed and to be directed by conscience in the present. Practical doubt always arises from another speculative doubt, either of law concerning the law, or of fact concerning some particular thing. - Hence conscience speculatively doubtful, and practically doubtful. - L. l. 1, n. 21; St. Thomas, 1 p., q. 79, a. 13.

142. The directive force of a doubtful conscience is clear from the following propositions. - With a practically doubtful conscience, whether an action is licit or illicit, it is illicit to act. - For only a certain conscience is the rule of morals. Cf. n. 13 seqq. Hence that saying: In doubts the safer part is to be chosen. The safer, namely that which stands for the observance of the law. C. Inquisitioni 44, de Sent. exc.; L. l. 1, n. 22; St. Thomas, Quodl. 8, a. 13; Suarez tr. 3, d. 12, s. 5.

Whether the action is licit or illicit. And thus in doubt whether you ought to kill someone wounded in war, lest the pains of his wounds be prolonged, a person sins whether he kills or does not kill. Likewise in doubt whether an action is prohibited under grave sin or only under light sin, if someone nevertheless acts with this doubt, he sins gravely. On the contrary, in doubt whether today is a day of abstinence of stricter law, a person does not sin if he abstains from meats and milk foods, although the day is one of no abstinence.

143. With a speculatively doubtful conscience it is lawful to act, provided that a practically certain conscience can be formed. - For as is clear from what has been said, n. 13 seqq., a certain conscience, however finally it has been formed, if at least it rests upon moral certainty, is a sufficient rule of morals, indeed the only rule of morals. - It is lawful to act: where, namely, there is question of the licit or illicit alone. For where there is question of the truth of a thing and of an effect necessarily to be obtained, if it is illicit to act with probability, it is consequently illicit to act with doubt. Cf. n. 47 seqq.; L. l. 1, n. 25; Suarez d. 12, s. 5.

144. The means by which someone may make the step from a speculatively doubtful conscience to a practically certain conscience are: 1. To weigh the doubt itself with a certain moral diligence. For if, as St. Alphonsus says, l. 1, n. 24, "after all things have been weighed, he should notice that the doubt is empty, here he can well lay aside his doubt without any other reflection, and thus perform the action." - 2. To inquire into the practice of good men who operate without scruple. - 3. The counsel of a learned and prudent man. - 4. Some probable reason, demonstrative of the matter a fortiori, which perhaps can be found by inquiring into the truth. - 5. Some general reason, or some general reflex principle, so called because it leads and bends us by means of reasoning to defining rightly the question, not concerning the intrinsic and objective truth of the thing, which cannot be resolved through itself and in its immediate principle; but concerning the subjective liceity of our action, which can well appear from some general extrinsic principle. Thus a judge is doubtful whether Titius is guilty, from the intrinsic and direct reasons of law or fact. But from the general and reflex principle, In doubt one must favor the accused, he at once absolves Titius. - L. ib.

145. There really are certain general reasons, or there are certain general sayings and principles, which can always be ready at hand, so that someone may make the step from a negative doubt immediately to moral certainty, or at least to probability, from which then, by means of the principles of probabilism, he can form for himself a certain conscience. Now rules and principles of this kind are the following. Suarez tr. 3, d. 12, s. 5, n. 7; Lugo de Iust. et Iur. d. 23, n. 110.

146. In doubt the condition of the possessor is better. C. 6. de Praescript. - That axiom has been received in the external forum, both ecclesiastical and civil, as a certain rule of judgments. For it must be presumed that he who possesses a thing possesses it by right, unless the contrary appears. The same certainly has force in the internal forum of conscience. For certain and legitimate possession gives rise to moral certainty concerning dominion over the thing, L. l. 1, n. 35, l. 4, 210, l. 6, n. 905, 927; and the reason is that, human morals being considered, no one, morally speaking, is negligent; indeed, on the contrary, all are diligent and very diligent in guarding their own things. Moreover, where one does not proceed from a false supposition, the right of the external and internal forum is the same; for each forum is founded on the principles of natural justice and equity. Hence theologians commonly admit the aforesaid rule for the forum of conscience. L. l. 1, n. 26.

Now some say that this axiom has force only in the matter of justice. "I, however," says St. Alphonsus, l. c., "do not know how it can be denied in all matters." And this certainly is by far the more common and truer sentence. The reason for this extension even to other matters is, with due proportion, the same as in the matter of justice. For no one can justly be despoiled without sufficient reason of a good which is his. But man naturally, and therefore altogether certainly and legitimately, possesses his own liberty, which surely is some good and right of his own. Therefore this good also pertains to justice, and whoever unjustly either takes it away or weakens it injures justice. Without injustice a free man cannot be subjected to servitude. - But there can be no doubt that in doubtful laws liberty is always in prior possession of itself. For upon whom is law imposed except one who is free? Hence it is that what is licit is not whatever the law permits, but what the law does not prohibit, L. 28, sect. 2, Ex quib. caus. maior., and therefore this prohibition must be manifestly proved, C. 23 de Verb. signif. - Suarez tr. 3, d. 12, s. 5, n. 8; Lugo de Iust. et Iur. d. 17, n. 87, d. 23, n. 110.

147. In doubt; that is, in negative doubt, and the reason of the axiom then is clear, because possession stands for the possessor, and therefore moral certainty; for the petitioner no prudent reason is had. This rule, as it has customarily been handed down by the Doctors and admitted in the schools, was never understood and received concerning the state of opinion, but only concerning the state of doubt taken strictly. For if there is question of opinion, then the rules are to be observed which are commonly given concerning probable conscience. Cf. Lugo de Iust. et Iur. d. 23, n. 110.

But in positive doubt, or probability, if probability is present on both sides, so that on this side there stands possession and probability of right, on the other side only an equal or nearly equal contrary probability of right, again the condition of the possessor is better, as is clear of itself. But if on one side indeed there stands possession, and on the other side contrary probability of right, or on one side possession and also probability of right, and on the other a far greater contrary probability of right, then certainly the condition of the possessor is not better, but doubtful. For the first sentence holds that the judge is bound to adjudge the thing to the plaintiff, because the right of possession prevails in an equal cause, but not in a less probable cause. For Rule 65 of Law in the Sixth is thus: "In equal delict, or cause, the condition of the possessor is stronger"; and in L. 128 ff. de div. Reg. Iuris it is said: "In an equal cause the possessor must be held stronger." But the second sentence holds that the condition of the possessor is still better, and that the judge cannot despoil him of possession. The reason is that "it is certain that legitimate possession gives to each one a certain right of retaining the thing, until the right of another is clear, as they most commonly say... a certain right, which cannot be overcome except by the certain right of another through convincing reasons." For possession is defined: the right of standing upon a thing not prohibited to be possessed, sect. 4, Retinendae de Interdictis Inst.; L. l. 1, n. 36; Ithur. Cas. 1, n. 2. Cf. L. l. 3, n. 547, 562, 711, etc.

Therefore possession, of which there is question in the present saying, is certain and legitimate possession. It is called certain, that is, that the fact of possession is certain; legitimate, that is, begun and continued in good faith; likewise begun and continued by a just title, at least apparent, or at least believed, or presumed, such as, for example, donation, purchase, inheritance, and the like, by which dominion of some thing is customarily acquired. If therefore possession is doubtful, or begun with doubtful faith, or by a doubtful title, it of itself does not exhibit to the possessor a special prerogative and presumption against which no contrary probability has force. L. n. 36, 47, l. 4, n. 219.

148. Probability of right, which can be on only one side, or on both, is probability of a real just title, or one really existing, from which true and real dominion and ownership of a thing arise. For for legitimate possession, of which there is question in the axiom, there suffices a just title at least apparent, because, for example, there intervened a donation or purchase from him who was thought to be owner, although he was not; or at least believed, because it is thought that there intervened an action signified by the title, although it did not intervene, as happens when someone thinks that a thing was given to him or bought by him, and yet this was not done; or at least presumed, because, for example, because of length of time in quiet possession, or other circumstances, it is prudently judged that some title intervened, although the possessor cannot allege any determinate one. Therefore that probability of right, as is clear, is wholly outside the possession itself, which only gives a right of standing upon the thing, or of detaining it, although perhaps dominion and ownership of it do not belong to you, since in reality there was no just title.

149. Now the probability of a real just title, or of one really existing, can be twofold: 1. Probability of the justice of the title for beginning or continuing possession and ownership of a thing, for example, a testament destitute of legal formalities. 2. Probability of the reality or existence of a just title for the same effect, for example, of a donation, when it is also probable that the thing was taken away by theft. The former probability is called of right, the latter is called of fact. Where there is question of the latter, "when the fact is not plainly proved, it is not probable that the accused can be condemned, since the laws never permit the accused to be condemned unless the delict or debt is fully proved; but it is not proved fully and sufficiently for a sentence, when, although two or three witnesses testify, other witnesses nevertheless testify to the contrary; for through these the testimony of the former is weakened or diminished, and therefore there does not remain the sufficient proof required for full proof and condemnation." Lugo de Iust. et Iure d. 16, n. 100. Cf. also d. 23, n. 100; d. 16, n. 34, 96, 99.

150. From the aforesaid axiom, therefore, several practical cases of negative doubt can be resolved, in which all true probability is lacking, namely whether the time of the obligation of the law has arrived or has passed. "In doubt of inception, for example, whether you have completed twenty-one years, you are not bound to fasting, because then possession is for liberty. Otherwise in doubt of passing, for example, whether on Saturday the hour of midnight has passed, you may not eat meats, for then the law possesses. So also, if you doubt whether you have sixteen years for profession, or twenty-five years for priesthood, you may not make profession or be ordained. Thus commonly." L. l. 1, n. 99, 32.

151. In doubt one must stand for that for which presumption stands. - For presumption, taken from things ordinarily happening, or from other circumstances of person and thing, produces moral certainty, or at least probability. "In obscure matters it is customary to consider what is more like the truth, or what is usually done." L. 114 de R. I.; R. I. 14 in 6. It is a certain anticipated proof of a thing from signs, before direct proofs. Therefore presumption exhibits the thing as true, and stands for that side which is not bound by itself to prove the contrary fact, but transfers that burden of proving to the other side. For as often as something is known to have preexisted which by its nature perseveres until it is taken away by some contrary fact, that thing is judged to persevere so long as the contrary fact is not clear, which consequently will have to be proved by the adverse side.

152. Hence, if you are accustomed at such a time diligently to recite the breviary, and you doubt whether you have recited some part, presumption favors you, and exempts you from the obligation of reciting or repeating. If an insane person, but one who has lucid intervals, vowed, and afterwards doubts whether he vowed while in possession of himself, he is not bound, so long as it does not appear that he was in possession of himself. L. l. 1, n. 26. Nevertheless in the forum of penance, in which, as St. Thomas says, 4 D. 17, a. 3, q. 3, one must stand by the saying of the penitent both for himself and against himself, presumption yields to the truth affirmed by the penitent. - Lugo de Poenit. d. 20, n. 17, 19; L. l. 3, n. 270, l. 6, n. 600, par. Limitant.

Likewise in a case of doubt, the baptism of spouses is not presumed, in relation to marriage, if the non-Catholic party or parties had parents belonging to a sect which rejects baptism; on the contrary, it is presumed if they had parents belonging to a sect which admits baptism, and in that sect were zealous. S. O., Aug. 1, 1883, Collect. S. C. de P. F. n. 662, ed. 1.

Where there is question of obedience to be rendered to a superior, in doubt the presumption stands, speaking per se, always for the superior. L. l. 1, n. 93, 98, 99. Speaking per se, always, for by accident it can sometimes happen that the presumption is not present for the superior, for instance in doubt concerning the liceity of the thing, even with the superior's precept added, for example, when the superior "is accustomed rashly and imprudently to command at his pleasure things which are not lawful... when even with the precept of the prelate added, the matter remains in doubt (as to its intrinsic liceity); nor does the authority, learning, probity, or prudence of the prelate suffice for laying aside the doubt, which is a possible case." Lugo Resp. Mor. l. 3, d. 19, n. 11; L. l. 3, n. 617.

153. In doubt a fact is not presumed, but must be demonstrated. L. 10 C. de Non numer. pec. - For no reason is to be given for non-being, but for being; because non-being does not have a cause of itself, but being does. Understand this, however, concerning the principal fact, if it is doubtful; because, if the principal fact is certainly clear, and there is doubt concerning an accessory fact, then other principles have force: In doubt every fact is presumed to have been rightly done; In doubt that fact is presumed which by right had to be done; In doubt one must stand for the validity of the act; always excluding unjust harm to one's own, or another's, or the community's good. For every being naturally tends to its own perfection and good. Therefore if nothing is clear as standing in the way, nature proceeds to pursue its own course. If consequently something had to be done, that thing is presumed to have been done. It is clear concerning the fact of Confession having been made; you doubt concerning right, whether you confessed rightly with sorrow and purpose; you can acquiesce. These three latter principles have force both for liberty and against liberty. For liberty, if contrary and certain presumption or the common good does not stand in the way; for an obligation is not to be imposed unless it is certainly clear. Against liberty, if namely a contrary and certain presumption or public good stands in the way; for the common good prevails over the private. - L. l. 1, n. 26, 27, 137, 182, 251, l. 3, n. 201, l. 6, n. 505; L. Quoties 12 de Reb. dub. ff.

154. Therefore in doubt whether you have taken any food or drink; and likewise in doubt whether you have taken food or drink after midnight, you can receive the Eucharist. For unless in each case the fact is proved, liberty possesses. L. l. 1, n. 38, 39; Elbel 166, 167; Amort. Theol. t. 2, d. 5, q. 4, who at the end notes these things: "I say, however, that he would sin at least venially who, for the pleasure of drinking alone, should thus trade around the laws of the Church, exposing himself to the danger of at least material transgression; and if he does this from custom or from a purpose always to operate in this way, with no other reasonable cause concurring, for example, thirst, infirmity, he will sin mortally, because such a purpose argues interpretative contempt and a defect of charity toward God and the Church, whose comeliness he defiles." - Busemb. apud La Croix, l. 1, n. 470, VI.

Indeed, although it is lawful to use a probable opinion against the law, nevertheless it is not lawful to act in fraud of the law by voluntarily procuring a state of doubt against the law, lest one be bound afterwards to observe the law.

Doubtful baptism, in order to a marriage already entered or to be entered, is held as valid; and therefore marriage is pronounced valid or invalid according to various circumstances. The marriage of one doubtfully baptized with one not baptized must be held invalid. On the contrary, the marriage of two doubtfully baptized persons, and of a doubtfully baptized person with a baptized person, must be held valid. S. O., Nov. 17, 1830; Sept. 9, 1868; Sept. 18, 1872; July 7, 1880; Sept. 18, 1890; Apr. 12, 1899; Collect. S. C. de P. F. n. 1872, ed. 1.

But a doubtful marriage, because of the common good, is commonly held as valid. But because of the preeminent good of religion, the doubtful marriage of infidel polygamists who are converted to the faith is declared invalid. Collect. S. C. de P. F. n. 1301, 1304, 1332, 2184, ed. 1.

155. In doubt no one is presumed evil, unless he is proved so. - This axiom is a corollary of the preceding one. For since facts, and consequently delicts, are not presumed, but must be demonstrated, neither must anyone be presumed evil, but he must be proved so. Indeed, no one is evil without reason.

156. Odious things should be restricted and favors should suitably be enlarged. R. I. 15 in 6. - For no one desires to be odious, but all desire to be pleasing. Therefore favors are to be preferred to odious things. By favor is understood whatever indulges liberty, or grants grace. R. 122 de R. I. By odious is understood whatever restricts liberty, establishes a penalty, or injures some right. But since it sometimes happens that what is a favor to one is odious to another, the particular case must be considered, so that it may be determined whether favor is to be preferred to odium, or odium to favor. Hence arises the general principle: In obscure matters the least is to be followed, R. I. 30 in 6, L. 9 de Reg. Iur., and therefore the interpretation of law is to be made less burdensome and more favorable to liberty. Hence another general principle is: Always in doubts the more benign things are to be preferred. L. 56 de R. I. And likewise another: Unless you have become certain concerning the mandate, you will not be compelled to execute what is commanded. C. Cum iure 31 de Off. et pot. iud. del. L. l. 1, n. 97.

157. Therefore it is false that where there is speech generally of speculative doubt concerning the liceity or illiceity of an action, in doubts the safer part is to be chosen. And certainly in this Rule of Canon Law there is not question of speculative doubt, in which by means of a reflex principle someone can form for himself a certain conscience, and thus choose the part altogether safe; but there is question either of practical doubt, namely of a practically doubtful conscience, with which it is not lawful to act, or there is also question of those cases in which the end must necessarily be obtained. But primarily there is question of the external forum, in which there is often a special reason for following the safer in order to remove scandals, abuses, and offenses of the faithful; or there is question of honesty and of greater merit, not of the necessity of salvation. L. l. 1, n. 68, 79; H. A. tr. 1, n. 39; Struggl tr. 1, q. 5, n. 17.

158. Of what species of sin is he guilty who acts with a practically doubtful conscience? - This guilty person will be guilty of a sin of the same account and species as the sin concerning which he doubts. The reason is that one doubting concerning that malice, and nevertheless acting, has an affection toward that malice. Hence, if you doubt whether it is mortal, you sin mortally; if you doubt generally whether it is a sin, not attending, not even confusedly, to the grave malice which may be present, you sin venially. L. l. 1, 22, 23; Elbel 140.

159. He who sinned from an erroneous conscience is not bound in confession to explain that circumstance of erroneous conscience, because it does not change the species; since every sin is against conscience, and does not depend upon the objective truth of the thing, except insofar as that truth is judged through conscience and proposed to the will. Except the case of censure and reservation: since then the erroneous conscience must be explained, so that exemption from censure and from reservation may be clear. Except also the case in which otherwise the sin would not be understood, for example, if someone by omitting Mass on a weekday believes that he sins gravely.

160. What ought someone to do, if, placed between two precepts, he remains doubtful which he ought to choose, for instance, if the precept of hearing Mass presses, and he ought to assist someone gravely sick? - This conscience is usually called perplexed. When such a case occurs, a person ought sufficiently, so far as lies in him, to inquire into the truth so that he may lay aside the doubt. - When the truth has been sufficiently inquired into, and the doubt remains, he can and ought to choose that which seems to him the lesser evil; and, if each seems equally grave, he can choose either. This is true even if someone had culpably cast himself into that perplexity, provided that he grieve for the past fault. The reason is that there is no obligation to impossibilities, and therefore then the lesser obligation ceases; or, if they are or seem equal, or because of ignorance someone does not know how to discern which is lesser, either ceases; and, even if someone thinks that by acting thus he sins, in reality he does not sin from defect of liberty. - Suarez d. 12, s. 5; Lessius in q. 19, d. 19, a. 6, d. 9; L. l. 1, n. 10; Elbel 141.

If the agent chooses that which seems to him the greater evil, he sins according to the excess of the apprehended evil, since he freely chooses this excess.

161. If you doubt whether you have already satisfied some obligation, are you still bound to satisfy it? - R. Affirmatively, if the doubt is merely negative. For with such a doubt no prudent reason of satisfaction is present, and therefore it is impossible by some reflex principle to form for oneself a conscience concerning non-satisfaction, since the certain law altogether perseveres. In such a doubt the axiom altogether has force: the condition of the possessor is better. Cf. Ithur. Cas. 44, n. 15.

But if the doubt is positive, there is controversy. The first sentence, which St. Alphonsus altogether holds and thinks must be held, l. 1, n. 26-29, l. 3, n. 700, par. ult., l. 6, n. 477, quaest. reform., recent. retract. q. 1 and 18, etc., and which several others hold, affirms. The reason is 1. because one does not satisfy a certain obligation through a doubtful fulfillment; 2. because, since in doubt the condition of the possessor is better, and the certainly existing law possesses against liberty, it prevails over liberty, and will always hold liberty obligated to itself until it is certain that the law has been fulfilled. Cf. besides L. l. 1, n. 20, 33, 99, l. 3, n. 112, 290. The second sentence, which is very probable both extrinsically and intrinsically, denies that such an obligation is present. The reason is the very fundamental reason of probabilism, which the Illustrious Holy Doctor expounds most eruditely and learnedly in the chapters cited above, namely, a doubtful law does not oblige. For law does not oblige in the abstract and universal, but in the concrete and particular case, L. l. 1, n. 78. But although the existence of the law is certain according to itself, nevertheless the same law, insofar as obliging in such a concrete and particular case, is uncertain, and is altogether prudently pronounced uncertain, if it has already truly probably been satisfied. Therefore either it must be said that the obligation of satisfying the law again in the aforesaid case is none; or it must be said that the aforesaid principle, a doubtful law does not oblige, is not universally true, but suffers an exception; which would not be fittingly said. For what is true is always true; and for every particular which is contained in the universal.

But from this reason it appears that the obligation in fact is not certain, which is assumed in the first reason of the opposite sentence, if it is probable that the law has already been satisfied. For against certainty there cannot be probability. As regards the second reason, as is clear from what has already been said, possession prevails in a merely negative doubt; but in order that it should certainly prevail also in a positive doubt, it is necessary that there be certain and certainly legitimate possession. Now when in a particular case it is truly probably clear that the law has been fulfilled, the possession of the law for that concrete and particular case becomes prudently doubtful; for if you in fact have satisfied, liberty in reality possesses. Moreover it is certainly not legitimate, since a just title of obligation is probably lacking; for you can probably believe that you have already satisfied, and therefore a just title, at least presumed, probably does not exist. This sentence besides is held by several and very grave theologians. St. Alphonsus himself, l. 1, n. 76, ed. year 1757, called this sentence common, and himself deduced it from the very principles of probabilism; and, l. 4, n. 150, he calls it most common. Hence D'Annibale leads it as safe, Summ. ed. 4, p. 1, n. 169.

162. Since this question is held by equiprobabilists as a certain capital question, it will not be beside the point to linger somewhat over the doctrine of St. Alphonsus concerning it. - When the question has been proposed: "If someone probably judges that he has already satisfied a vow, is he bound, notwithstanding this, to fulfill the vow?" St. Alphonsus responds, l. 1, n. 29, p. 14, ed. P. Gaude: "Several Authors deny it, namely Roncaglia, the Salmanticenses with Leander, Lugo and others; because, as they say, since the obligation of the law in that case is doubtful, so also is the possession of the law. - Formerly I thought this opinion probable, being led more by extrinsic probability than intrinsic; but after the matter was better weighed, now I by no means judge it probable. Hence I say that the opposite is to be held with Concina, Filliuccio, Leander and others. The reason is that... when the vow is certain, liberty remains bound by the obligation of the vow, until the vow certainly has not been fulfilled." Indeed in Elenchus 2 of Reformed Questions, q. 1, the Holy Doctor writes these things: "If someone probably judges that he has fulfilled a vow, the canonical hours, or penance, is he bound to satisfy it, if it is still probable or doubtful that he has not fulfilled it? Several Authors deny it... But the opposite is to be held, because the obligation already contracted possesses, until certainly it has not been fulfilled."

163. But the Holy Doctor seems in reality either to have revoked his retraction, or certainly afterwards to have been doubtful. For as regards the very general question proposed in our Question, behold what he has in the same edition of the Moral Theology, l. 1, n. 99, which is to be held as altogether definitive from Father Gaude: "What in doubt whether you have fulfilled the law? In negative doubt you are bound to fulfill it; otherwise, in positive doubt. Cardenas and Illsung with Croix." Rev. Father Gaude, so that he may free the Holy Doctor from a certain contradiction, or from a new retraction, or certainly from every doubt on his part concerning that question, appends this note 99 d): "What St. Alphonsus briefly writes here, namely that you are no longer bound to fulfill the law in positive doubt whether you have fulfilled it, needs explanation. The saying of the Holy Doctor has force for the case in which there is only one probability, namely that you have fulfilled the law; or in the case in which it is notably more probable, and therefore it is clear to you with a certain moral certainty, that the law has been fulfilled. But in the case in which probability is present on both sides, you are by no means released from the obligation of the law, according to the reformed doctrine of St. Alphonsus, as is clear from l. 1, n. 29 and Elenchus 2, Quaest. reformatar., q. 1."

164. But this note of Rev. Father Gaude has altogether no foundation except in a prejudged opinion about equiprobabilism. Neither in the text of the Moral Theology nor in the first reformed question is there found any trace of a single or double more probable opinion. Therefore the saying of the Holy Doctor is well clear of itself, and needs no explanation.

And this is confirmed from the very citation of La-Croix, l. 1, n. 599, 600, whom St. Alphonsus praises. For the Holy Doctor resumes in few words the very same doctrine of La-Croix, from whom he also took the citations Cardenas and Illsung. And La-Croix is most certainly not an equiprobabilist.

165. Moreover, if from the general question we make a step to particular questions, we shall certainly see that St. Alphonsus both constantly holds that it is safe in conscience to follow, as regards obligation, a probable opinion; and that possession prevails in doubt, not in probability. And thus l. 3, n. 290, p. 560, ed. P. Gaude: "In doubt concerning custom the precept possesses; hence a dispensation must be sought. Otherwise, if it is probable that the custom is present."

Likewise l. 3, n. 112, q. 3, par. "second sentence," p. 432, ed. P. Gaude: "Here we are not dealing in doubt, but in probable opinion... For in doubt presumption stands for the law... But when it is probable that the obligation of the law never began, or that the law has been abolished, then presumption for the law ceases, and liberty possesses."

166. And those things which the Holy Doctor has l. 4, n. 150, ed. P. Gaude, p. 574, bear more upon the proposed case. The Holy Doctor treats the question: "Whether, if someone doubts whether he has omitted something of the Office, he is bound to recite it?" And he responds: "... If the doubt is merely negative, he is certainly bound; because in doubt possession stands for the precept... But if the doubt is positive, so that you probably judge that you have said it, you are not bound to repeat it; as they most commonly teach... Likewise Croix says... he acts badly who, having a conjecture that he has said some part, repeats it; because he opens the way to scruples." And if this has force concerning the Office, to which someone is bound from the law of the Church, does not the same have force concerning the Rosary, to which someone is bound from his own private vow?

167. And here too Father Gaude appends a note, saying that the Holy Doctor left the aforesaid opinion in the last edition from the preceding editions through mere forgetfulness. But it is repeated forgetfulness; indeed it is forgetfulness repeated several times. Ought it not rather to be said that there was an implicit retraction of the retraction? And who will ever be able prudently to affirm forgetfulness in the preceding question, for example concerning the Breviary, since St. Alphonsus treats it not incidentally and briefly, but professedly and at sufficient length? Nor indeed is the aforesaid case of doubt rare, but very practical and frequent.

168. At the most one would have to say that the Holy Doctor after the retraction was doubtful and undecided. Indeed, concerning another similar question: "Is someone bound to confess some mortal sin certainly committed, in doubt whether it had or had not been confessed?" he responds, l. 6, n. 478, of the last edition of the Moral Theology: "If the doubt is negative, he certainly is bound to confess it, as they commonly teach... But on the contrary, if the doubt is positive, so that he probably believes that that sin has already been confessed, there is a sentence that he is not bound to confess it, and Suarez, Navarrus, Sylvester, Bonacina, Lugo, the Salmanticenses, Croix, etc., defend this. But just as the opinion reported elsewhere of those Authors who said that there was no obligation of fulfilling vows which have probably been fulfilled seemed by no means probable, so neither can I approve this sentence as regards a sin probably confessed, since the obligation of confession is certain, and the satisfaction doubtful."

But it must be noted first how St. Alphonsus, although he brings forward a general reason, nevertheless refers himself not to the general question, but to the particular question concerning a vow, around which he reformed his sentence; but in reality he also reformed his sentence concerning the question of the canonical hours and of penance. Then, although the Holy Doctor reformed his sentence, nevertheless it always remains true that he himself adhered to the other sentence, l. 6, n. 477, of the Roman edition of the year 1757, dedicated to Benedict XIV; and there he himself frees the penitent from repeating confession, "as Suarez, Sanchez, Navarrus, Bonacina, Filliuccius, Roncaglia, Viva, Tamburini, Croix, Lugo, Escobar, Granadus, and Fagundez, the Salmanticenses with Sylvester, Henriquez, etc., also commonly say." Therefore we have St. Alphonsus with Concina against St. Alphonsus with Suarez, Lugo, and several other most distinguished theologians. Does not the prior St. Alphonsus prevail notably over the later St. Alphonsus? teaching a sentence which Lugo, de Poenit. D. 16, n. 58, says all commonly teach? And, what is still more, this remains true, that these things are had in St. Alphonsus, l. 6, n. 505, of the same last edition: "It must carefully be noted that penitents are not to be compelled to repeat Confessions, unless it is morally certain that they were invalid, as Croix, Gobat, Holzmann, Mazzotta, and Elbel with Filliuccius and the common opinion rightly say."

169. The doctrine set forth has no difficulty against it from the case of the debtor, if he has only probably paid his debt. For, if that doctrine cannot be applied to this case and the obligation of restitution is affirmed, this will be only because it is not in reality a case of probabilism, which turns only around the honesty of a human action and not around the truth of things, and because of the special account of justice, which does not have force for other precepts.

Let St. Alphonsus be heard: "When the debt is certain, and probability turns around the fact of payment, certainly the debtor is not freed by a probable payment; because probable payment cannot equal a certain debt." L. l. 3, n. 700, ed. P. Gaude, p. 167. Indeed, as the same Holy Doctor has in the note there, "we cannot use a probable opinion with harm to neighbor, when the probability is only of fact... Whenever the opinion is only probable that this action is not prohibited, someone can form a certain conscience by such an opinion... When opinions turn around the things themselves, often a man is bound to prefer the certain to the probable, namely when from justice or from charity he is bound to avoid harm which in the thing itself underlies... For the first says an order to the operator, and altogether removes the danger of malice; but the second says an order to the thing itself, and does not remove the danger of detriment which is in that thing."

But Cardinal de Lugo has these things concerning the proposed case, de Poenit. d. 11, n. 59, 60: "First, if those hundred are owed from a liberal promise, it seems that satisfaction is made by probable payment; just as one who by vow owes fasting, if he fasts by observing the fast according to a probable opinion... But if they are owed from an onerous contract, as from purchase, exchange, etc., then perhaps he does not satisfy; because equality is not preserved by giving, for a certain thing, another uncertain thing, which for that reason is worth less; and because the intention of the contracting parties seems to be this, that certain money be given to him for certain goods; which reasons... do not proceed in all other precepts, in which the obligation is certain, for example of fasting, of reciting the Office, etc., and nevertheless a man satisfies if according to a probable sentence he fasts, hears Mass, or recites the Office, etc." And Father Palmieri in Comp. P. Gury n. 80 adds: Thus Lugo, who skillfully, even concerning an onerous contract, speaks doubtfully: perhaps he does not satisfy: for if the matter concerns contracts which they call of good faith, in which namely there is given to the judge the faculty of arbitrating many things according to equity and good between the litigants, then also the very equality which must be preserved in an onerous contract is customarily determined by a prudent, that is, probable judgment."

170. Therefore that axiom, a doubtful law does not oblige, must be understood of a law doubtful by positive doubt, or truly probably doubtful. Now law can be positively doubtful in many ways, concerning its existence and concerning its cessation: concerning existence, whether it has been enacted, whether promulgated, whether the time of obligation has arrived, whether it is extended to such a case; concerning cessation, whether it has been abrogated, whether its excuse or dispensation is present, whether it has already been fulfilled; and in all these cases we say that the aforesaid axiom has place, unless we wish to admit the truth of the general proposition and at the same time deny the truth of the proposition contained in the general. But come now, law can be doubtful:

1. As to its very existence and promulgation, concerning which St. Alphonsus says: "Law, in order that it oblige, must not only be promulgated, but also promulgated as certain. And this point must be firmly established here," l. 1, n. 63 seqq. and 97. And, that we may pass over others, this is from the eminent Doctor in St. Alphonsus, l. 1, n. 66: "So long as there is a probable judgment that there is no law prohibiting the action, such a law has not been sufficiently proposed to man; whence, since the obligation of law is of itself burdensome, it does not press until it is more certain concerning that law." C. 31 de Off. iud. deleg.

2. As to its understanding and obvious interpretation, and whether it is obscure or ambiguous. For since law must be sufficiently proposed in order that it oblige, the legislator is not judged to wish to oblige beyond that which is clearly and determinately expressed in the law. R. I. 30, 57 in 6; L. 9 C. de Leg. et Const.; Suarez in 1. 2, tr. 3, d. 12, s. 5, n. 7.

Obscure: for example, whether regular prelates, since they too have their own sheep, must apply Mass for them on feast days. This question, proposed twice before the Holy See, has not yet been solved. Giraldi, Expos. I. P. p. 2, s. 85, t. 3. - Ambiguous: it is provided that a beneficiary not reciting the canonical hours after six months from obtaining the benefice does not make his fruits his own; nevertheless the fruits are to be understood not of the earlier and later time, but of the later only.

3. Whether it has an extensive or restrictive interpretation, concerning which St. Alphonsus says, l. 3, n. 1036: "When it is doubted whether a law comprehends some case or subject, it is the same as if it were doubted whether law exists for that case or subject, and therefore liberty possesses." Cf. also l. 1, n. 27, 97; Lugo de Poenit. d. 16, n. 59, de Iust. et Iur. d. 23, n. 110.

4. Whether it has ceased, either immediately after it was enacted, because it was never received, or through the progress of time by desuetude; concerning which the Holy Doctor says, l. 3, n. 112: "Nor does the first sentence, which we followed l. 1, n. 97, stand in the way, namely that in doubt whether a law has been received, the law does oblige; for here we are not dealing in doubt, but in probable opinion... For in doubt presumption stands for the law, since a delict, in not receiving a just law, is not presumed. But when it is probable that the obligation of the law never began, or that it has been abolished, then presumption for the law ceases and liberty possesses." The same Holy Doctor has l. 1, n. 107, par. An vero, l. 4, n. 47. And consequently the same must be said when it is probable that the end of the law has adequately ceased, L. l. 1, n. 199, or that the law has been abrogated by custom, L. l. 3, n. 290, or that in a particular case there is no need of dispensation, L. l. 1, n. 192, l. 1, n. 304. - Certainly as soon as the obligation of the law is doubtful, its possession consequently becomes doubtful; and therefore the argument drawn from the Rule of possession has no force in the case.

5. Whether the law is just or unjust; and here a threefold case can occur. The first is that the justice of the law is doubted because there is doubt concerning the legislator himself, whether he is a legitimate superior. Now in this case, if the doubt concerning the legitimacy of the superior is positive, concerning which we are treating, namely it is truly probable that he is not a legitimate superior, by that very fact the non-existence of the law becomes truly probable, and therefore it does not oblige. Cf. L. l. 1, n. 98, 121. - But if the doubt is merely negative, the law must be obeyed, "whenever the superior is in peaceful possession of his power; for then his condition is better as one already possessing the right of commanding." L. l. 1, n. 98, l. 4, n. 47.

The second case is that the justice of the law is doubted because there is doubt whether the superior exceeds his power. In positive doubt, or true probability concerning excess of power, the same must be said as in the preceding case. For by that very fact that it is truly and manifestly probable that the superior exceeds his power, the non-existence of the law becomes truly probable, and therefore it does not oblige. Cf. L. l. 3, n. 617. - But if the doubt is merely negative, presumption, speaking per se, always stands for the superior.

The third case is because there is doubt concerning the liceity of the thing itself prescribed. In positive doubt or true probability, the law is not doubtful, and therefore it obliges. For the superior then commands a thing probably licit, indeed certainly licit; for he commands that the subject embrace some probable opinion in practice, which is certainly licit. Therefore he commands licitly and by right. Therefore the subject is bound to obey. Lugo Resp. Mor. l. 3, d. 19; L. l. 1, n. 93, 99, 124, l. 4, n. 47.

"But the Doctors commonly limit the aforesaid sentence, and say that the subject is not bound to obey, 1. if the thing is very difficult and troublesome...

They limit it 2. when the subject by obeying would expose himself or another to danger of undergoing a grave inconvenience in life, reputation, honor, or goods." L. l. 4, n. 47, l. 3, n. 617, l. 1, n. 31. "The reason is that subjection and obedience owed to a superior does not take away your right and possession, or that of the other person, concerning the good of honor, reputation, body, or fortune. Therefore you are not bound to deprive yourself of this certain possession in a matter of so great moment; but rather it seems consonant with equity that a greater account be had of your certain possession, and that this be preferred to the right, or possession in some way doubtful, of the superior." Elbel 173; Laymann c. 5, n. 12; Suarez tr. 3, d. 12, s. 5. Moreover, because then, in the case of a thing very difficult or harmful, it can deservedly be doubted whether the superior exceeds the limits of his power, and therefore the existence of the law becomes doubtful; or also place can then be given to legitimate epikeia, according to the various circumstances of the particular case.

But if the doubt is merely negative, presumption, as has already been said, always stands for the superior. Cf. Suarez de Relig. t. 4, c. 10, l. 4, c. 15; Lugo Resp. Mor. l. 3, d. 19. For the rest, as regards what pertains more to practice, "the sentence of all theologians, both recent and ancient, is common: they teach that in obscure matters obedience is to be given to the superior, where sin is not certain; and thus all who have treated of this matter have taught. So also all the masters of mystical theology with St. Ignatius of Loyola in the Epistle on the Virtue of Obedience." L. l. 1, n. 100, 194; Lugo l. c., n. 3; Suarez tr. 3, d. 12, s. 5.