Case XVIII: Concerning a Will Case

My Dear Doctor:

In the HOMILETIC MONTHLY AND CATECHIST, Vol. VIII, No. 2, page 170, you try to solve a Casus Conscientiae, a Will Case.^* Now, my dear doctor, I claim that nearly everything you say in that article is absolutely false. You say: “There can be no doubt that the laws of the State may and do bind in conscience.” That the laws of the State may bind in conscience, transeat; that they do bind in conscience I deny, and I prove it. According to Moral Theology, lex non obligat ultra mentem legislatoris. Atqui; no State legislators ever intended to oblige any man in conscience to observe any law. Therefore civil laws do not oblige in conscience. Our civil lawgivers do not acknowledge any conscience. All our civil laws are penal laws, and no more. Hence any citizen is allowed to violate any law of the State without committing a sin, for the law knows no sin.

^* The Case found on page 65 is referred to.

If the laws of the land bind in conscience, then a divorced man may marry a divorced woman!

While the heirs in this case can not be compelled by law to pay the thousand dollars to charities, yet they are bound in conscience to do so, if it can be proven that it was the will of the father that one thousand dollars should be given to charities.

SACERDOS.

‘Answer. It is our constant endeavor to solve the Cases of Conscience appearing in the HOMILETIC MONTHLY according to the principles of sound Catholic morality, as expounded by the great theologians of the Catholic Church. Upon the teachings of St. Thomas, St. Liguori, Cajetan, Suarez, Lugo, Bellarmine, Lessius, etc., and not upon any notions of our own, if we have any, do we rely for a solution of the difficulties presented to us. We are aware that the solutions we give of Cases of Conscience may not ‘always meet with the approval of everybody, nevertheless, they will be found, upon examination, to rest upon the teachings of some, if not all, of the great theologians, whose orthodoxy and learning are both above suspicion. Thus in the solution of the Will Case, to which “Sacerdos,” in the above communication, takes exception, we did but solve the Case according to the principles laid down by St. Thomas, 1-2, q. 96, art. 4; Suarez, de Leg. 1. III, ch. 21; Bellarmine, de membris Ecc. militantis, 1. III, ch. 11, etc., and more recently by Bouquillon, theol. fund. de lege civili, ch. 1; Noldin, de VII praecept. n. 137; Tanquerey, de Contract. n. 617; Aertnys, 1. I, tract. III, n. 144, etc.

Suarez, loc. cit., treating of the power of the civil law to bind the conscience, says:

“On this matter there was an opinion denying that civil magistrates can bind in conscience through their laws. Heretics, who deny that rulers possess true power to make laws, hold this all the more.” Among Catholics, he continues, Gerson, in a work on the spiritual life, seems to deny the power of the civil law to bind the conscience, but without any good reason. Then he says: “But it must be said that human civil law has the force and efficacy of binding in conscience. This is the common opinion of Catholics, as may be seen in St. Thomas with his commentators.”—1, 2, q. 96, art. 4, etc. Here follows a long list of theologians, whom Suarez quotes as justifying him in asserting that it is the common opinion of Catholic theologians that the civil laws bind in conscience. Among those whom he quotes we find Soto, Bellarmine, Navarrus, Salmeron, S. Antoninus, etc. Hereupon Suarez makes the statement that the assertion that the civil laws bind in conscience is de fide, or proxima fidei. “And the assertion appears either to be of faith or proximate to faith; for it is gathered almost openly from that passage of Paul to the Romans, chapter 13: He who resists authority resists the ordinance of God; but those who resist acquire condemnation for themselves. Chrysostom, homily 23, understands this there as condemnation also before God. Likewise the reason is added there in these words: For he is God’s minister; whence it is gathered that obedience must be given to him, not only because of wrath but also because of conscience, as if he said openly: not only because of fear of punishment, but also in order to avoid fault; for this is what the phrase ‘because of conscience’ strictly signifies, as Ambrose, Anselm, St. Thomas, Theodoret, and almost all the others understood it.” The reason why the civil law binds in conscience, says Suarez, is because the legislator in making it acts as the minister of God, and by the power which he receives from God. The divine law and the natural law require that the laws made by legitimate rulers be obeyed. Yet, observes Suarez, we must not think that it is the divine law or the natural law that binds our conscience to obey the civil law; it is the civil law itself that places the burden of obedience on us. “Nor does it follow from this either that that fault (disobeying the civil law) is properly against the natural law, or that the obligation to an act commanded by human law is natural; because, as I touched upon above, human law stands as the proximate and secondary cause, which rests upon the eternal law as its first cause. But an effect which proceeds proximately from a secondary cause, so that it would not be produced by the first cause except through the secondary, is attributed simply to the secondary cause; and therefore this obligation, even though it is in conscience (of obeying the civil law), proceeds simply from human law.”

Suarez’ eighth proposition (1. III, ch. 21) is this: The aforesaid power is necessary for the suitable government of the human commonwealth. As the wife is bound in conscience to obey the husband, and the son to obey his father, and the servant his master, and the monk his superior, so a fortiori, is the citizen bound in conscience to obey the laws of the state. “And the reason a priori is that government without the power of coercion is ineffective and is easily despised; but coercion without the power of binding in conscience either is morally impossible, because just coercion presupposes fault—which is very probable, as will be explained more fully in what follows and in the treatment of penal law—or at least is very insufficient, because through it adequate provision could not be made for the commonwealth in many necessary cases.” The divine law and the natural law are altogether inadequate, being too indefinite and indeterminate for the government of a state. When the legitimate lawmakers, therefore, in any state, make just laws for the protection and well-being of the state, those laws are binding in conscience, by virtue of the human power that made them, “they bind immediately by virtue of human legislative power, which can add that obligation in conscience over and above the obligation of natural or divine law” (loc. cit.).

Omitting the intervening chapters, we come to ch. 27, “Whether the obligation of human law, as regards its gravity, depends upon the intention of the legislator.”

“To understand the point of the question, we suppose that the legislator can conduct himself in various ways when making a law: first, that he intends simply to make a law concerning such a matter, and nothing further: ******* in the first manner the law undoubtedly binds in conscience, because a true law by its nature has this effect if it is not excluded; hence, by the very fact that the intention is directed toward a true law and this effect is not excluded, it is sufficiently intended and is produced through the law. Nor is a formal intention of binding in conscience, or under mortal sin, always necessary; indeed, this scarcely enters the mind of a civil legislator, especially among unbelievers, concerning whom the same reasoning applies. It is the same in a vow and a promise, because, if they are made, they bind in conscience at once, although the one promising has thought nothing about conscience; therefore it is the same in a law, nor is there any reason why a more explicit intention should be necessary.”

We have given here a mere outline of Suarez’s teaching, nevertheless it is sufficiently clear from what we have quoted that Suarez maintains that the civil law may, and in fact does, bind in conscience, even though the law-giver did not think about conscience or an obligation in conscience, when he made the law, and even though he be an infidel, and deny all conscience.

Cardinal Bellarmine’s teaching is identical with Suarez’s, as may be seen by a reference to his treatise de membris Ecclesiae militantis, bk. III, ch. 11.

St. Thomas, 1-2, q. 96, art. 4, asks: “Is the obligation imposed on man by human law binding in the court of conscience?” He makes answer as follows: “Laws enacted by men are either just or unjust. If they are just, they have a binding force in the court of conscience from the Eternal Law, whence they are derived. Laws are said to be just in respect of the end, when they are ordained to the general good; in respect of the author, when the law does not exceed the competence of the legislator; and in respect of the form, when burdens are laid upon subjects in proportionate equality in order to the general good. For as one man is a part of a multitude, all that every man is and has belongs to the multitude, as all that every part is, is of the whole; hence also nature inflicts loss on the part to save the whole. Under this consideration the laws that impose these burdens according to proportion are just and binding in the court of conscience, and are legal laws.”

Dr. Bouquillon, sometime professor of moral theology in the Catholic University at Washington, was one of the most eminent of modern moral theologians. In his Theologia mor. fund. de lege civili, 222 ss. he says:

“Civil law is truly moral, since it does not convey mere coercion but produces an obligation in conscience and before God. For it is enacted by authority communicated by God, in the name of God, and is sanctioned by God. Indeed, in the inspired documents we have that the power of rulers is from God, and that rulers are ministers of God, sent by Him; therefore obedience must necessarily be given to them for the sake of God and conscience; consequently, those who resist rulers resist God Himself and acquire condemnation for themselves. Moreover, the holy Fathers unanimously teach that a superior, who is God’s vicar, must be obeyed just as God Himself is, because God commanded obedience to a superior and because God will exact punishments by no means light from those who do not obey. Right reason easily proves the same: for although through civil law a man is immediately ordered only to temporal good, mediately he is nevertheless also ordered to eternal good, since, according to the divine disposition, the temporal serves the eternal; and therefore violation of it turns one away from the end.”

For every statement in the foregoing the learned author quotes the Scriptures and the Fathers. He proceeds:

“Civil law as such produces an obligation in conscience, and not only insofar as it contains and applies natural, divine, or ecclesiastical law; this is gathered clearly from the texts cited. Civil law produces an obligation in conscience by the very force of command, and not by the force of a special will added to the command; that is, for obligation it suffices that the superior intend truly to command, nor is it required that he expressly intend to impose an obligation in conscience; for this follows necessarily from command. Hence some sometimes seem without justification to doubt the obligation of civil laws in conscience because modern legislators care very little about conscience, or even about God Himself. Moreover, civil law produces obligation of itself, by its own efficacy, and independently of the Church’s approval.”

Tanquerey, de contract. ch. 1, says:

“Everyone admits that the civil authority can enact such laws (invalidating contracts). The whole difficulty lies in determining which civil laws bind in this way. When the legislator has declared this clearly, there is no difficulty; but most legislators today do not speak explicitly about the moral or natural obligation of laws; hence the question must be resolved from the purpose of the law: namely, if the public good requires that the law be regarded as invalidating even before the judge’s sentence, the act must at once be regarded as invalid in conscience, etc.”

In confirmation of this he refers to a decision of the Holy Office, given in 1873. The Italian government passed a law in 1866 requiring its creditors to accept paper money in payment, regardless of any previous contract to the contrary. The Holy Office was asked whether this law was binding in conscience; it answered, on January 21, 1873: “as a rule, in the affirmative, unless particular circumstances stand in the way” (Acta S. Sedis, t. VII, p. 211).

Aertnys, C. S. S. R., says: “Every human law, properly so called, always and necessarily binds in conscience at least to something. **** Nor does it matter that civil legislators are unbelievers who do not care about conscience; it is sufficient that they simply intend to bind, and by that very fact an obligation in conscience arises, as the Apostle teaches in Romans 13:1, 2, 5, speaking of pagan rulers: ‘Let every soul be subject to the higher powers; for there is no power except from God, and those that exist have been ordained by God. Therefore he who resists authority resists the ordinance of God; but those who resist acquire condemnation for themselves. Therefore be subject of necessity, not only because of wrath but also because of conscience’” (de legibus, c. III n. 144).

Fr. Noldin, S. J., says: “Concerning intention, however, note this: just as it is not necessary that the legislator explicitly intend to impose an obligation in conscience in order that the law bind in conscience, so it is not necessary that he explicitly intend to impose a grave obligation in order that the law bind under grave sin; for just as the intention to bind is judged to be contained in the very exercise of legislative power, in the same way the legislator is presumed to intend generally to enjoin grave matter also under grave sin. Therefore it must be held absolutely that even an unbelieving legislator enacts laws binding in conscience” (de legib. n. 137).

These quotations might be continued indefinitely, but sufficient have been given to make it clear that, according to Catholic theologians, the laws of the state do, as a rule, bind in conscience, even though the legislators be unbelievers and infidels, and have no concern either about God or conscience. Indeed, from a perusal of these same theologians, it will appear that, instead of all modern civil laws being merely penal, the great body of the civil law is moral, i. e., binding in conscience, and that the purely penal laws are very few when compared to the whole body of the law.

Among the laws of the state that bind in conscience are to be included many laws concerning the ownership, purchase and sale, etc., of property; the laws concerning the prescription of property, treasure trove, valuables found, certain of the laws invalidating contracts, and certain of the laws invalidating last wills and testaments. For example, Fr. Noldin says: “Civil laws establishing rights or transferring ownership ordinarily bind in conscience from commutative justice before every sentence of a judge. For a law enacted by competent authority for the common good binds in conscience. But rights which pertain to goods of fortune constitute the object of commutative justice; therefore preceptive laws which establish the rights of citizens concerning goods of fortune bind from commutative justice” (de VII, praecept. n. 347).

In like manner, the civil laws concerning treasure trove, invalidating the contracts of minors, excluding certain persons from the benefits of a will, etc., are all binding in conscience.

As a rule the dispositions of the civil law regarding last wills and testaments only affect the same civilly, i. e., in foro externo, ante judicis sententiam. “Therefore if,” says Noldin, “a sick man near death gives a legacy to someone orally, the gift, since it lacks legal form, is formless; therefore the heir is not bound to pay the legacy and can recover it juridically if paid, because he can use the right granted to him by law; but neither is the legatee bound to return it until the heir has obtained the invalidation of the gift through a judge” (de vi legis civil. n. 3).

Fr. Aertnys, C. S. S. R., asks: “Whether a law indirectly invalidating a temporal act or contract takes effect in the forum of conscience before the sentence of a judge? The more probable opinion affirms that it does, etc.” “From what has been said it follows that an heir or legatee under a non-solemn testament can with a safe conscience, before anyone else takes possession, accept and retain the inheritance or legacy as long as it is not adjudged away from him, because the certain will of the deceased is in possession. Similarly, an intestate heir can with a safe conscience refuse to execute a testament of this kind, or challenge it, and, once it has been overthrown by the sentence of a judge, obtain what was left by the testator; because the right of succession by intestacy is in possession, and he can use the remedy of law” (de legibus, n. 148).

The Will Case to which “Sacerdos” objects was solved according to these principles. It was a “a testament for secular purposes, null because of an invalidating civil law, with a pious legacy inserted in it.” Is such a last will and testament valid?

The first thing to be settled is, was the charity to which the testator desired to give one thousand dollars, a vera causa pia?

The second question was, were there at least two witnesses present when the testator signified his will, or was his will in writing?:

Thirdly, was the beneficiary in good or bad faith?

From the details of the Case as presented to us, we could not settle these questions, and even had we been able to settle them, it is disputed by theologians whether a last will and testament ad causas profanas, containing a bequest for a pious purpose, is valid by reason of the pious bequest, when it is invalid for the lack of necessary legal formalities. (Cf. any of the older or more recent theologians on this point.)

Since these things are so, we still believe that the solution of the Will Case here referred to was correct.