Case IV: Restitution to a Foundling Asylum

A rich man named Cyrus, in order to protect his good name, has his illegitimate child conveyed secretly to a foundling asylum conducted by the city. He has no idea of reimbursing the asylum for the expense it incurs by caring for his child. Of course he has plenty of means to do so, if he wished, nor need he run any risk of having his shame discovered. However, he has no intention of doing so. Now he goes to confession, and in the course of his confession this fact becomes apparent to the confessor. The confessor, knowing Cyrus' ability to reimburse the foundling asylum, and that in doing so he would run no risk of being discovered, obliges him to make good the asylum's expenses for the care and education of his child. This Cyrus refuses to do, whereupon the confessor refuses him absolution. Was the confessor right?

Answer.—Strictly speaking, the confessor was not right. He imposed an obligation on Cyrus when it is seriously disputed by the gravest theologians whether any such obligation really exists. Every confessor knows, or ought to know, that it is not lawful to impose an obligation, de cujus certitudine non constat. We are perfectly aware that some of the greatest theologians would hold Cyrus to restitution. Foundling asylums, they maintain, are founded for the benefit and protection of the foundlings, and not for the advantage or profit of the foundlings' parents. If the parents are able to pay, they are bound in conscience to pay. This is the opinion of de Lugo, Billuart, Carriere, and many others. But there are many other theologians who hold the contrary opinion and maintain that Cyrus, in this case, is not bound to make any restitution. And the opinion of these latter appears to St. Alfonsus to be the more probable of the two. They even hold that, though the foundling asylum should be poorly endowed or in straitened circumstances, nevertheless restitution cannot be strictly enjoined in a case like the one here submitted. The reason is because these institutions have been founded not only for the relief of the poor, but also for the protection of the rich, in circumstances where their good name might else be put in jeopardy, or where they might be induced to commit abortion, or to destroy their illegitimate offspring. These institutions have been founded and are maintained principally to discourage abortion and child murder, by rendering these quite unnecessary for the protection of the good name of the parents of illegitimate children. As the rich and influential are more exposed to the danger of defamation and loss of reputation by reason of illegitimate offspring, and therefore more exposed to the temptation of destroying their illegitimate children, in order to save their good name and their position in the community, therefore are foundling asylums instituted and maintained for the relief and protection of the rich even more than for the poor.

St. Alfonsus says: "Hospitals of this kind are established not only to assist the poor, but also the rich when their reputation is in danger, in which situation they are accustomed either to procure abortion or to kill their offspring, lest they be disgraced; and hospitals intend to meet this evil. Indeed, I say that these were erected for illegitimate children rather than for the poor, to free them from the danger of eternal and temporal death, which they would easily undergo through fear of disgrace if adulterers had to support them from their own resources" (Lib. 4, n. 656).

Moreover, since the municipality, in the case before us, supports the foundling asylum, its benefits must be free to all the citizens alike, whether rich or poor, without discrimination, since the asylum is supported from the public taxes. And the same may be said of all private asylums that receive city aid, since such aid is rendered from the public treasury. Even in the case of strictly private asylums, which receive no State aid, but are maintained by voluntary private subscriptions, the first and primary purpose of such institutions is to save the children from temporal as well as eternal death, by protecting the good name of their parents, and therefore their benefits are meant for the rich as well as for the poor. We do not mean that other private hospitals and institutions are intended for the rich in the same way that they are for the poor. Their purpose being different, the rich are bound to restitution towards them if they make use of them free gratis. But with foundling asylums the case is different, owing to the purposes of their institution.

Some theologians, however, as Noldin, S. J. Marres, etc., maintain that if the rich make use of private foundling asylums, or if the city cares for foundlings in private houses or in institutions intended for the poor, they ought to make restitution to such institutions.

"But where exposed infants are supported by the care of the civil community, whether in private homes or in a hospital, from taxes or from goods destined for the poor, wealthy parents are bound to reimburse the expenses" (Noldin II, 289, b.).

In the case of Cyrus, therefore, since it was only probable, and by no means certain, that he was bound to restitution for the support of his illegitimate offspring, the confessor exceeded the bounds of justice in refusing him absolution because he refused to make restitution. The confessor has no right to impose obligations on penitents when it is not sure that such obligations really exist. The confessor might have exhorted Cyrus to reimburse the asylum, or he might have imposed it as a penance, but he was not justified in imposing restitution as a strict obligation. All the more, since such a course on the part of the confessor is directly adapted to turn Cyrus away from the Sacraments.