Article I. On the Matter of a Contract

756. • The matter of a contract generally is things and acts, or all those things which can fall under the dominion of man, and concerning which the contracting parties have free administration.

The matter of a contract ought to enjoy these conditions, namely, it ought to be possible, existing, honorable, proper to the contracting party, certain, estimable by price.

1. Possible, both physically and morally; because no one can be obligated to the impossible. Therefore no one can be obligated to avoiding fortuitous events, since this is impossible. Hence if someone undertakes them upon himself, he obliges himself only to repairing the damages proceeding from them.

2. Existing either in reality, or at least in certain hope, or probably going to exist; otherwise no right could be had in it, as being estimable by no price.

3. Honorable and licit in itself, that is, prohibited by no law; because no obligation can be given to a dishonorable and prohibited thing. But for the validity of a contract it suffices that the matter be substantially honorable; for a contract can be valid, although illicit on account of some accidental circumstance.

4. Proper to the contracting party; for no one can transfer to another a right which he himself does not have. Hence if someone buys a stolen thing, he buys invalidly, even if good faith was present in each contracting party, as is clear from what was said concerning the possessor of good and of bad faith, n. 635 and following.

5. Certain and determined, either individually, or in quantity and quality; otherwise the contract would be illusory.

757. Questions. - Q. 1. Whether you can accept a price for your action already owed from justice to someone, if the same action can profit another, the right of the former, to whom it is owed, remaining unharmed?

Resp. Affirmatively. The reason is that you do not injure the right of the former, with whom you had contracted, and you render yourself useful to the later one. Thus, for example, if Titius has hired you to go to a certain place for the sake of treating some business, you can also be hired by Peter to make that journey for treating a new business, provided the later mandate does not harm the former. - St. Lig. and others.

Q. 2. Whether a price can be accepted for a thing owed, not indeed from justice, but from another virtue; for example, if you accept money for fasting in the time of Lent?

Resp. Affirmatively, at least more probably, because that is given from mere liberality and is judged a merely gratuitous gift. - St. Lig., n. 713, and others commonly. - Nevertheless it is supposed that the action or thing to which the donee is held is estimable by price; otherwise the contract would be invalid. Hence he would be held to restitution who exacted money for showing the way to a man passing by, when without any labor or loss of time he can show it; since that action is not estimable by price ¹.

¹ In this last particle the Author evidently changes the hypothesis, and introduces someone exacting something, whereas previously the question had been only about one accepting. Nor indeed is a distinction of this kind of no moment. For if you imagine one indeed merely accepting, but another giving something from a liberal gift, it certainly does not matter whether the thing or reason on account of which it is given is estimable by price; for a donation, as being plainly gratuitous, requires no price of work in the donee. But otherwise one must speak if you imagine another exacting something as if owed to himself, when nevertheless he furnishes nothing in itself worthy of price, when the reason of a gift also would cease, which is repugnant to the hypothesis of an exacted price. But in these things the Author, by using the hypothesis of one exacting a price for indicating the way to one passing by, wished to insinuate a principle otherwise most true: that the price of some work can indeed be taken both from the labor or inconvenience necessary for it, and from common estimation, but not from the singular necessity of someone, or from the convenience which as it were by accident comes to someone from it.

Q. 3. Whether a contract is valid if the matter is possible only in part?

Resp. Affirmatively, if the thing is divisible in itself, and the contract was made concerning it divisibly; otherwise, if it is indivisible or if agreement was made concerning it indivisibly. Hence, for example, if you bought 100 measures of wheat in such a way that the contract is not perfected except when the thing has been delivered, and 50 perish, the contract still holds for the remaining 50. But if you promised a hand-watch, and you learn that you have only a partial right in it, your promise will be null.

758. • Q. 4. Whether a merely spiritual thing can be the object of a contract, whether gratuitous or onerous?

Resp. to the first. Affirmatively. For the right of nature is no obstacle, since agreements of this kind have nothing disordered; nor divine right, since God has permitted, indeed has commanded, the gratuitous communication of spiritual things: thus from the obligation of fidelity you can promise prayers, Masses, Relics, etc.

Resp. to the second. 1. Affirmatively, if the thing is spiritual on each side ², because then no Simony can be present in the exchange, since there is no comparison of a spiritual thing with a temporal thing.

² Understand: unless a prohibition of the Church is added, as happens, for example, in an exchange of benefices made by private authority.

2. But negatively, if the thing is merely spiritual on one side, while temporal on the other; because no comparison can be given between the spiritual and the temporal, as is clear from what was said concerning Simony, n. 287 and following.

759. • Q. 5. Whether the matter of an onerous contract can be a temporal thing joined to a spiritual thing?

Resp. 1. Affirmatively, if it is joined antecedently, the prohibition of the Church in particular cases being excluded; provided nevertheless that the price is not increased on account of the spiritual thing joined to it. - See what was said concerning Simony, ibid.

Resp. 2. Negatively, if it is joined consequently, at least by ecclesiastical law. But this question chiefly regards benefices.

Resp. 3. But if it is joined concomitantly, distinguish. 1. Negatively, if it is joined intrinsically and necessarily, because then the temporal thing has no value independently of the sacred thing, as is the labor of a Priest in celebrating, absolving, etc. - 2. But affirmatively, if it is joined extrinsically, as was said concerning Simony, ibid.

760. • Q. 6. Whether a thing accepted from a shameful contract must always be restored?

Resp. 1. Before the placing of the shameful work, affirmatively; because the dominion of this thing was not validly transferred. - Thus all.

Resp. 2. After the placing of the work, it is controverted. A twofold probable sentence is given. First Sentence, the more common, says that the price can be accepted and retained, indeed also that it ought to be given from justice. The reason is: 1. because there intervenes there a twofold contract, one absolute, namely concerning the shameful work to be placed for a price, and this is void; the other conditioned, concerning the handing over of the price if the shameful work has been placed, and this, the condition having been fulfilled, becomes valid. For, the work having been placed, the contract I give so that you may give already arises; the nature of this contract demands that always, as often as one contracting party has furnished his part, the other is held to fulfill his own, if he can licitly do so; 2. because although the shameful action, insofar as it is illicit, is worthy of no price, nevertheless, insofar as it is laborious, ignominious, dangerous to the agent, or useful to another, it has a price. - St. Lig., as probable, n. 712. - Lacroix. - Lugo. - Lessius.

Second Sentence denies, because a contract invalid before the placing of the work cannot be made valid through this. Hence Rule of Law 18 ³: That is not strengthened by the passage of time which by law does not subsist from the beginning. Therefore, etc. - Thus Roncaglia. - Comitolus. - Carrière, n. 333.

³ Rule XVIII of Law, although very well known, no one of the older authors alleged for this matter, because it is altogether foreign to the point. For the older authors knew that the obligation then arises when the contract is perfected; but the contract of which there is speech, just as all innominate contracts also (see Lugo, De Iust., Disp. 22, n. 19), is not perfected unless delivery has followed on the part of one. Therefore the beginning of the obligatory contract is taken not from the pledged faith of a promise given, but from the work furnished. Just as namely the promise of sale is not sale, nor must the promise of marriage be confounded with marriage, so in the present matter the preceding promise does not have in itself the force of the innominate contract concerning which we are discussing, upon which therefore the allegation of Rule of Law XVIII, as Carrière judged, could fit.

But Roncaglia and Comitolus are falsely alleged. For Roncaglia (De Restit., Cap. 6, Q. 1, Resp. 2) writes these things: After the evil has been perpetrated, setting aside now the prohibition of positive law, the money promised to the malefactor, for example, to a prostitute, a homicide, or anyone whatever who for the sake of the one promising did some evil, must be given. For this it must be observed that although sin considered in itself and formally is always detestable and worthy of no price, nevertheless considered according to the material, that is, insofar as it can bring pleasure, convenience, utility, etc., to someone, it is reputed estimable by price... Hence that prostitutes can retain the price which is given to them is had in L. Idem 4, De Condict. ob turp. caus., and St. Thomas teaches it, etc.

But Comitolus, although he runs through pathless and devious places according to his undisciplined genius, nevertheless (Resp. moral., Lib. 3, Q. 5, n. 15) finally comes to this: that he defines that after the crime has been perpetrated, the promised wage must be paid to the prostitute. And it matters little that according to his genius he gives a wondrous reason, namely that the promised wage must be paid as a fine imposed by the laws upon the crime, without waiting for the sentence of a judge; which portentous reason would bring the matter to this, that rather than being punished with a penalty, the guilty woman would have to be heaped up with a reward from the law, and indeed the wage would have to be paid also by him who did not promise. But all these things are plainly congruous with the genius of the author, just as also that which he himself saw (ibid., n. 2), that it is the sentence OF ALMOST ALL THE DOCTORS that nothing is owed to the lessor of criminal work, when Card. De Lugo (Disp. 18, n. 59) saw that it is the COMMON and true sentence that there is an obligation of paying the promised price.

And indeed from Comitolus other allegations seem to have been gathered, for example of Adrian, John Medina, and Navarrus, which among others (see St. Alphonsus, Lib. 3, n. 712) you find for that opinion. But in these also you may see a deed worthy of Comitolus. Indeed Adrian (In IV, De Rest., § Restat., fol. LXXVI, Roman edition, 1522) has these most explicit things: He who obtains something by an office or act forbidden to him... does nothing against commutative justice. Therefore he is not obligated to restore. Then to the objection that the price of prostitution was forbidden to be offered in the temple, he replies: The price of the flesh is licitly and rightfully possessed; nevertheless it is equally prohibited... to be offered in the house of the Lord. But to the texts of Law by which shameful pacts are declared void, he responds: Nor does the text there openly say that a promise made to a man on account of a preceding shameful cause is not valid, but only... concerning a future shameful cause... It seems otherwise when the baseness has already passed and is as it were purged.

The things which are brought forward from Medina do nothing to the matter. For he only (Cod. De Restit., page 156), by force of the law (L. Lucius 9, ff. De Iure Fisci), which orders that goods acquired by inheritance by a wife through poison given to her husband be ceded to the fisc, contends that whatever is acquired by a delict punished by the laws is to be adjudged to the fisc. Whence he concludes that the gains of a hidden prostitute are to be adjudged to the fisc, but not of a public one, whom the laws tolerate. And indeed let that heteroclite conclusion be dismissed, which no other person has deduced from that text (see Covarruv., In C. Peccatum, De Reg. Iur. in VI, § 2, n. 3). But indeed what will you extract from these things for our matter? Indeed from the fact that he wishes only gains from delicts which the law avenges to be restored, by that very fact he concedes that other gains from delict can be retained. Nay, he openly teaches that dominion of gain from delicts which the law punishes is acquired by the delinquent, saying: The laws nevertheless place a difference between this woman, that is, a public prostitute, and that one, that is, a hidden one. For if they are hidden prostitutes, the gains which they thus acquire they deserve to lose, and an action is given to the fisc, so that it can take them away from such persons. But before the sentence of condemnation has been passed against them, the dominion of the gain is with them.

Finally, so that the sentence of Navarrus may be clear, it will suffice to have brought forward these things from Man., Cap. XVII, n. 34: I say fourth principally, that what has been accepted by a prostitute on account of the shameful cause of fornication does not necessarily have to be restored even in the forum of conscience. In this conclusion almost all, both Theologians and Canonists and Jurists, agree; which last words again prove with how great levity Comitolus boasted that the opposite sentence was that of almost all doctors. Moreover the reason displeased Navarrus, which, as he says, St. Thomas also and all others after him follow. Because, he subjoins, it seems to be repugnant to itself, since it presupposes that it is shameful to prostitute oneself, and that it is not shameful to take a wage for prostitution; when, as he explains below, n. 41, reception of the wage is approval of the committed sin, and therefore a new sin. Wherefore he at least exacts this (ibid., n. 41): that the delict not be the principal cause of seeking the things promised, but an impulsive cause and occasion without which he would not seek: as if, for example, shoes made wickedly on a feast day could not be the cause, but only the occasion, on account of which a wage or price is paid to shoemakers. But since finally he agrees in the same conclusion with the common sentence of the Doctors, the remaining things, altogether singular, which even Thomas Tamburini himself (Decal., Lib. 7, Cap. 5, § 3, n. 20) affirms to be far from the truth, and which Navarrus himself sincerely confesses that he brings forward against the common sense of all, are easily to be condoned to an otherwise excellent man.

And indeed these are the more important things which are brought forward for the defense of this kind of cause. For the things which Collet heaped together for the same matter (De Iust. et Iur., P. 4, Cap. 1, art. 4) seemed so wretched even to him that, although he was most devoted to this kind of opinion, they could not draw him further than that he said he inclined toward it. I said Collet was most devoted to this opinion; for he was so consumed with abandoned love for it that, since he had at hand no more than four writers whom he might oppose to the most common and nearly certain sentence of all the Doctors in Theology and in both laws, this was enough for him to pronounce intrepidly: In this point there is a twofold opinion even of sounder Theologians! But otherwise, who are those sounder Theologians for his part? Comitolus, namely, the condemned work of Henry of St. Ignatius, an unknown anonymous author of Collat. Paris., with the compendium of Sambovius! And indeed, what is even greater, he did not dare to bring these forward as if contending for that opinion, but, as he himself says, they hold this, or approach it; and then, and this is still more wondrous and worthy of an iron forehead, he says that John Pontas favors them, who otherwise, he himself not denying it, plainly teaches the opposite! Truly a patronage worthy of this cause, and a patron worthy of it!

Finally, so that nothing which pertains here may be omitted, some advert (see St. Alph., Lib. 3, n. 712, q. 1) that this opinion was held as probable both by Lessius and by Diana; but Tamburinus (Decal., Lib. 7, Cap. 5, § 3, n. 20) adds that not ignoble Doctors teach it, and that it pleased many Canonists apud Azor (P. 3, Lib. 4, C. 21, q. 2).

But as regards Lessius, he affirmed this only concerning crimes which are punished by positive law, for example, if examiners of parish priests received something from candidates by reason of the examination (see Lib. 2, Cap. 14, n. 60, and Cap. 18, n. 20). But these things pertain nothing to the general question according to natural law.

But as regards Diana, let it be enough to observe two things: 1. This probability, whatever it may be, for he calls the opposite more probable and common, he himself (Tom. 8, Tr. 7, R. 59, n. 3) attributes to the authority of Durandus, Medina, Navarrus, Comitolus, and Valerus. But Medina, Navarrus, and Comitolus are wrongly called into patronage, as we have seen. Durandus, whose allegation Diana took from Valerus, merely contends (In 3, Dist. 39, q. 4) that no obligation arises from an oath or vow concerning an illicit thing, as if this were pleasing to God; which things, as is plain, do not touch the matter. Finally Valerus (Differ. utriusq. Fori, V. Promissio, Diff. VIII) concedes that the use of the body is sellable, although he denies that the price must be given, lest this seem to be paid for sin. But at the same time (ibid., Diff. IX, n. 1) he establishes that in the forum of conscience he who promised a hundred for committing homicide is held to paying after the work has been completed, although in the external forum the other cannot exact them. Therefore the authorities by which Diana bound that probability, whatever it may be, vanish. - 2. Diana (l. c.), from the mind of those whom he alleges, urges one reason only, that sin is not sellable or worthy of a price. But he himself (Tom. 6, Tr. 7, Res. 140, n. 4) contends that this reason is false. Therefore he himself of himself destroys that empty probability, which rests upon no reason except a false one, nor upon any authority except a fictitious one.

Finally, as regards the Doctors not ignoble whom Tamburinus mentions, he in fact remembers no one else except the accustomed Navarrus, Comitolus, and Valerus, whose names he says he borrowed from Diana. But the opinion which according to Azor (l. c.) is common to many older Jurists and Canonists differs nothing from that which above we saw handed down by Medina, namely that the price is permitted by the laws to prostitutes publicly exposed, but not to other women. And from these things, just as Medina does, Azor concludes: Therefore the only difference is that by the laws, in those things which are given to public prostitutes, repetition of the price is not given in the exterior forum... But truly in other women, by the laws, the right of repeating what was given to them is conceded. Wherefore Azor also, equally with Medina, subjoins: Whatever, therefore, may be the case concerning the exterior forum, gain accepted in any other copula on account of a lustful act perpetrated is not to be restored in conscience, because no law compels to this. Therefore the assistance which someone might think to be present in the not ignoble Doctors and in the Jurists and Canonists mentioned by Tamburinus falls back in vain.

Moreover these things had to be set forth a little more diligently, after that fictitious probability, which some have seemed to attribute to this opinion, has been conspicuously abused by others for defending that immense paradox concerning there being no obligation of marriage as regards him who violated a girl under a given pledge of marriage. Concerning which matter this also happens to be observed: there are those who narrate, indeed also congratulate themselves, that somewhere it was sanctioned by episcopal law that promises of marriage for obtaining defloration, even perhaps confirmed by oath, should be judged invalid; and they report Collet as the author of this history, as is to be seen apud St. Alphonsus (Lib. 3, n. 641). Nevertheless Collet, in the place alleged by them, does not have those things; but he merely hands down that, for casting delay upon this very evil abuse, which in some parish had very widely prevailed, it was agreed between the pastor and the Bishop that thereafter one would not proceed to the proclamations of marriages which such a crime had preceded unless the Bishop had first been consulted. For otherwise, the question being now omitted whether the power of a Bishop extends so far that he can render invalid a promise of marriage, there will certainly be those who easily see that from that certainly most imprudent counsel this one fruit alone can be expected: that wicked men, now certain of impunity for the crime, may take a bolder spirit for seducing weak women, who otherwise, carried away as they are accustomed to be by a most burning desire of marrying, will never fail to give fullest faith even to the lying promises of seducers.

** The VV. wrote fifty-four columns (pages 334-361) against this Note; to which three others must be added, which elsewhere (pages 570-371) the same VV. opposed to the last part of this Note. Would that that heap of things brought some light to the questions!

First of all let us dispatch that which pertains to the last part of this Note. The VV. fasten the charge of falsehood (page 371) in these words: By no means does St. Doctor say that somewhere it was sanctioned by episcopal law that promises of marriage for obtaining defloration should be judged invalid, as P. Ballerini falsely attributes to him... St. Alphonsus, with Collet, brings forth only pious wishes and proposes a remedy by which seduction of virgins under hope of marriage may be met in a better way. - Resp. P. Ballerini, for the sake of reverence, had written, "there are those who narrate," and had kept silent about the author of the narration; but the lust of contradicting drove the VV., although there was no need, to publish abroad that St. Alphonsus was the author of the narration. Moreover behold the words of St. Doctor Alphonsus (Lib. 3, n. 641), which the VV. also report (page 370): Here in passing it is useful to note with Tournely, that is, Collet, that it would be very useful for avoiding sins of this kind if promises of marriage for obtaining defloration, even perhaps confirmed by oath, were declared invalid by Bishops; as the aforesaid Author reports was reduced to practice in a certain Gallican diocese with great profit. Now I ask: what is that which, from the testimony of Collet, St. Alphonsus says was reduced to practice in a certain Gallican diocese? Were merely pious wishes elicited from the heart? Or is it not most openly said to have been reduced to practice that in a certain Gallican diocese promises of marriage, even perhaps confirmed by oath, had been declared invalid by the Bishop? But Collet does not say this. Therefore rather than the VV. accusing P. Ballerini of falsehood, let them in the new edition of St. Alphonsus which they are preparing compose the words of St. Doctor more suitably, so that they may fully answer to the truth.

But nearer to the proper argument of the Note. As regards rule 18 of law: That is not strengthened by the passage of time which by law does not subsist from the beginning, the VV. contend (page 337) that it is falsely asserted by P. Ballerini that no one of the older authors alleged it for this matter; and they object that St. Alphonsus says (Lib. 3, n. 712): It is a common rule that that which does not subsist from the beginning cannot grow strong by passage of time. - Resp. It is a common rule, as all rules of law indeed are most common: I concede. Therefore it is alleged by the older authors for this matter: I deny the consequence. Therefore let the older authors be produced who used that rule in this controversy.

2. The VV. contend (pages 337-338) that P. Ballerini says undeservedly that this rule is brought forward altogether outside the matter. But with Comitolus they object that in the case a stipulation always precedes; and since the stipulation is null before the disgraceful deed, it ought to be null even after the deed. For the same matter they describe an entire paragraph of De Lugo (Disp. 22, n. 19), which is alleged above in the Note. Resp. That paragraph of Lugo is alleged in the Note for this reason alone, that it intimates the common doctrine, namely that innominate contracts are not perfected except by delivery having followed, and by the contract having been completed on the part of one. For the things Lugo discusses there concerning the special contract of exchange pertain nothing here. I said that the common doctrine is intimated there, which Molina sets forth thus (Tr. 2, De Contr., Disp. 254, n. 14): Finally, other contracts are those which are perfected by the thing itself, or by delivery, nor before that are they judged consummated... And the same is true concerning the other respective innominate contracts. And Laymann (Lib. 3, Tr. 4, Cap. 3, n. 2): Contracts are perfected by the thing, or by delivery, which by their very name signify giving or doing... Such are exchange, lending... and every innominate contract. But the contract about which there is speech for us here is, by the consensus of all, an innominate contract. Therefore it is perfected, not by stipulation, as Comitolus reasons sophistically, but by the thing itself or by delivery at least of one part. But what it is for a contract to be perfected, it is better to hear from Lugo, to whom the VV. were pleased to appeal. Thus therefore Lugo (Disp. 22, n. 15): It must be known that contracts are perfected in four modes; but the speech is concerning perfection not as to effect, but as to the essence of the contract itself. For as to effect, a contract is then perfect when that to which it obligated is fulfilled; nevertheless this is not something belonging intrinsically to the contract itself, but is its effect... Now therefore we speak concerning the intrinsic complement by which a contract in itself is called perfect and essentially entire. Whence thus: that by which a contract is perfected is of the essence of the same contract; but any innominate contract is perfected by things, or by delivery; therefore delivery pertains to the essence of this contract. But a contract does not subsist without its essence; therefore this contract does not subsist before the delivery of the thing. Therefore Rule of Law XVIII is alleged outside the matter, when it is supposed that here this contract consists in any preceding agreement. - The Salmanticenses (Tr. 14, C. 1, n. 5) propose this common doctrine of all no less clearly, saying: You will ask in how many modes contracts are perfected. And we speak of substantial perfection as to the substance of the contract, when namely all necessary things are placed, so that it subsists according to its own species. Therefore without those things by which a contract is perfected, a contract in no way subsists. Hence as regards the present matter the Salmanticenses (ibid.) rightly conclude: Contracts which are perfected by delivery of the thing are not judged to be celebrated before delivery of the thing... nor do they beget any obligation. Even Concina himself consents in this, who, after he premised (De Contr., Disp. 1, C. 3, n. 1) that certain contracts are perfected by delivery of the thing, soon (ibid., n. 2) subjoins that contracts which are perfected by delivery of the thing induce an obligation binding the contracting parties not before, but after, delivery. But, as has been said, an innominate contract, of which kind the present one is, is perfected by delivery of the thing. Therefore both the contract and the source of the obligation proper to this contract are imagined outside the matter to subsist before delivery of the thing. Therefore Rule 18 of Law is alleged outside the matter. Reiffenstuel, among others, explains the legitimate sense of this Rule thus (Tom. VI, ad Reg. 18, Iur. in VI, n. 4): The true sense of the Rule is the following: "No act which, while it is perfected, is by the law itself invalid and null, grows valid by the mere passage and lapse of time without another support, so as to have the force and effect of an act validly performed from the beginning." But, again, this innominate contract is perfected by delivery. Therefore the nullity of the preceding promise is objected in vain. And concerning this enough.

3. The VV. contend (pages 338-340) that Roncaglia is alleged not falsely, but rightly, for the sentence which denies the value of the contract about which we are treating; which certainly ought to seem wondrous, since his words alleged in the Note for the affirming sentence are clearer than sunlight. But the VV. object that Roncaglia said those things with attention to natural law; but that he thinks otherwise if something is given against that which positive laws dispose. Hence they bring forward this resolution of his (Tr. 13, De Restit., C. 6, q. 4): It seems that what has been given by a donation illicit and reproved by the laws can in no way be retained. - Resp. That Roncaglia excepts from the general thesis which he had most clearly established a donation reproved by positive laws detracts nothing from the truth of his thesis, indeed confirms it according to the saying: The exception confirms the rule. Moreover, in reality nothing can be devised more wretched than that paragraph of Roncaglia. But to dwell upon these things now does not pertain to the matter.

4. Likewise the VV. contend (pages 340-342) that Comitolus is alleged not falsely, but by right, for the same denying sentence. For he holds that all agreements concerning a shameful thing, except prostitution, are void. - Resp. The thesis of the Author, to which the Note is subjoined, is most general, concerning a thing accepted from a shameful contract; and Comitolus is alleged for this thesis, as the VV. themselves advert. Therefore, since, by the admission of the VV., Comitolus as regards prostitution in some way affirms that the accepted price can be retained, by that very fact he is falsely alleged for the general denying thesis. Moreover, whatever finally may be the sentence of Comitolus concerning this question, that immense heap of sophisms and of false allegations and assertions is certainly in no way equal to conciliating any probability, by which he so confounds all things above and below that even the very proposition of the question bears absurdity before itself, when he asks: Whether from a shameful promise or some stipulation any obligation arises. For no one dreamed that, in innominate contracts of this kind, the perfection whence there is obligation must be sought in words, of which kind is a promise, or in stipulation. And indeed the VV. did not doubt to defend even the discordant reason on account of which Comitolus said that the price must be paid to the prostitute, although even Comitolus himself, fearing the novelty of that paradox, wrote (l. c., n. 13): It follows that I myself should explain my sentence, whose explanation I fear may seem less probable to someone by its very novelty. Nor does it touch the matter that the VV. bring forward from Lessius, saying that the mind of the laws is that he who gave should not be able to recover, as a penalty for the crime. For the laws concerning which Lessius is speaking there pertain to the question where the cause of each, namely both of the one giving and of the one receiving, is shameful, and they define that the possessor is the stronger in such a way that no action is conceded either to one seeking what was promised or to one repeating what was given. Moreover, as Lessius there also adverts (Lib. 2, c. 14, n. 58), the laws concede to a prostitute an action for acquiring the price. Therefore the argument about which Lessius is there speaking is another. And here it will be useful not to have omitted that even Concina, who otherwise names Comitolus with great honor, could not but note the false testimony of Comitolus, about which it was said in the Note. Paulus Comitolus, says Concina (De Iust. et Iur., Disp. 2, Cap. 10, n. 8), contends that this is the sentence of all the Doctors, with two exceptions, Soto and Cajetan... The Most Distinguished Comitolus is mistaken when he ascribes the opposite sentence to Soto and Cajetan only. For it is ascertained that the greater part of Theologians comes together in the same opinion. But concerning this writer, enough and more than enough; one must come to the allegations of others.

5. And first indeed the VV. complain (page 342) that in the Note the allegations of Adrian, John Medina, and Navarrus, which St. Alphonsus also reports, are said to seem gathered from Comitolus. But falsely, they say (page 342), is this asserted. - Resp. In the Note this is said by opining; for the word "seems," as St. Thomas says, belongs to one opining. But this could lead one to this opinion, that in each place, both apud St. Alphonsus and apud Comitolus, this erroneous allegation of Law is seen: L. Mercedem C. De Condict., when one must read Mercalem, as the distinguished P. Haringer corrected well in the Ratisbon edition, 1846. Moreover, since this same erroneous allegation of Law recurs apud Concina (l. c., n. 7), but the words by which both this citation of law itself and the allegations of Adrian, Medina, and Navarrus are reported apud St. Alphonsus are much more similar to the words by which they are alleged by Concina than to those which Comitolus uses, it indeed seems more probable that those allegations were drawn from Concina rather than from Comitolus.

6. Moreover the VV. (ibid.) charge as a crime that in the Note Comitolus is represented as criminal, because it is said there that in these allegations a deed worthy of Comitolus is discerned. - Resp. Facinus for the Latins, just as the Greek andragathema, means some distinguished deed, an action worthy of a strong man. And indeed among the Latins it is accepted both in a good and in an evil part; but from this it is wrongly concluded that someone is represented as criminal when some facinus is attributed to him; for the word facinerosus is used only in the evil part.

7. But to come to the alleged Authors, there are two things which the VV. (pages 342-343) advert as regards Adrian: 1. that Comitolus affirms only this concerning Adrian, that prostitutes can retain what has been accepted, not as a debt from justice, but only as donated. - Resp. Let it pass. For first, although Comitolus uses a false reason in some way, nevertheless he does not reject, indeed he admits, that Adrian holds the thesis against which he is alleged, namely that what has been accepted from a shameful contract is not to be restored. Therefore Adrian is wrongly alleged against the thesis. But then it is false that this reason is given by Comitolus; for, as the VV. themselves have in the same place, according to Comitolus the prostitute accepts as gain attributed to her by the law, nor does Comitolus attribute to Adrian this reason, which he says was invented by himself.

The VV. add 2. (page 343) that Adrian brings forward several cases in which he teaches that restitution must be made on account of injured justice; but that there is no need to seek out the senses of Adrian concerning prostitution, which otherwise St. Alphonsus excludes. Resp. That restitution must be made on account of injured justice is not, and cannot be, the question concerning which St. Alphonsus said (Lib. 3, n. 712) that there is a twofold probable sentence; for that what would be retained unjustly cannot be retained is certain apud all. And if indeed in this place St. Doctor is not treating of gain injuring commutative justice, nor again of gain from prostitution, and otherwise not even the VV. themselves find anything apud Adrian which looks to gain from an act indeed shameful, but nevertheless not unjust, to what purpose therefore does St. Alphonsus allege the text of Adrian, § Restat inquirere, where there is treatment of concussion or extortion, that is, of sin against justice? Therefore let them concede that Adrian is brought forward gratis and outside the matter, and that St. Alphonsus transcribed that allegation in good faith, whether from Comitolus or from Concina matters not. But moreover the VV. would have served the rights of truth much better if they had not kept silent that Adrian thought plainly the same thing concerning any other shameful gain not injuring justice as he did concerning gain from prostitution, and therefore in the question which St. Alphonsus treats he held a sentence plainly opposite to that which St. Doctor ascribes to him. And indeed Adrian, in the question also alleged by Comitolus, which begins Oritur alia quaestio (fol. 76, Roman edition, 1522), after he said that a prostitute licitly can hold what she has received, and can dispose of those things at her judgment, and that the same must be held concerning a non-public prostitute, subjoins: I think the same concerning those who by their crimes have procured for themselves the favor and gifts of others. Here, as is plain, the speech is about delicts diverse from prostitution. Why therefore did the VV. conceal this? Again, in the Note are seen the things which Adrian responds to the texts of law by which shameful pacts are declared void. For he responds: Nor does the text there openly say that a promise made to a man on account of a PRECEDING shameful cause is not valid, BUT ONLY... CONCERNING A FUTURE SHAMEFUL CAUSE... It seems otherwise when the baseness has already passed and is as it were purged. Moreover Adrian here is speaking neither of a crime against justice, because elsewhere he denies that unjust gains can be retained, nor of prostitution, for which even Comitolus admits that an action for recovering the price was not customarily denied by the judge; therefore he treats of gain received from other shameful deeds besides prostitution. Why therefore did the VV. conceal this also? Therefore let them concede that St. Alphonsus in good faith alleged Adrian for an opinion whose contrary Adrian teaches; and at the same time let them concede that from allegations of this kind no probability accrues to opinions, except a fictitious one.

8. Let us pass over to John Medina, concerning whom, no less than concerning Adrian, the VV. leave to be desired that sincere zeal for truth without which no discussion of this kind ought to be.

Concerning Medina, in the Note subjoined to the Author, the only care was to touch that particle from which certain persons had taken occasion to oppose him to the common sentence of the Doctors. Therefore it is better here to set forth his mind; for from this every doubt will vanish. And in the first place there is certainly something in which Medina seems to depart from others; but that does not look to the question whether shameful gain can licitly be accepted and retained, but merely to rendering the reason; just as St. Alphonsus (l. c.), while he follows the common sentence, which he calls more probable, nevertheless preferred to adopt another reason than certain others had brought forward. Therefore Medina (Cod. de Rest., page 133, Ingolstadt edition, 1581) thinks that the title of the contract ought not to be called the price of the wicked work, but rather donation. Thus he: A prostitute, neither public nor hidden, can receive or retain the price of prostitution as a price corresponding to that wicked work, unless another cause concurs, such as the donation of the one giving, who freely wishes to donate to her, notwithstanding that the work itself is shameful and is the cause without which there would not be such a donation. Nor does the sentence of those please me who say that a prostitute can licitly receive the wage of prostitution by way of wage, even the way of donation being excluded. Thus Medina, namely lest he should say that sin is sold. Nevertheless, since the notion of a donation which imposes a burden upon another is absurd, Medina finally explains the matter more or less as others do, and adopts the reason which afterward also pleased St. Alphonsus. For (page 134) he thus objects to himself: But you will object, because in gain from prostitution there does not seem to concur a liberal donation, but another contract of leasing, by which the body is leased for fornication use, or an innominate contract, namely, I will give so that you may do or consent in this, as appears in the example cited above from Genesis, in which Judah and Tamar expressly agreed concerning the price. What does Medina say to these things? Namely, it was necessary for him to concede the objections, although he studies somehow to reconcile those things with the preceding theory. Thus therefore he himself: It is answered: Grant that it is so, that such a contract and pact intervenes; still in that contract there is mixed a donation, such as is found in the act of buying or leasing, in which someone gives a price exceeding the value of the thing, in whose giving neither fear, nor coercion, nor ignorance intervenes, but spontaneous will. Let us not now ask in what way, according to Medina, the part which holds the place of wage can be separated from that which holds the place of donation; meanwhile this is manifest, that something is attributed which has the account of price or wage. Therefore Medina finally receives himself back to the common sentence; but the explanation which is added by him finally looks to this, that whatever is given not be called the price of sin, because, as he himself repeats with others, sin, as such, is unsellable. For this reason St. Alphonsus also (l. c.) wishes that the title of the price not be sin, but the work, as laborious, as ignominious, as dangerous.

Nor let the VV. object here that these things are said by Medina concerning prostitution, which St. Alphonsus excludes in the question, but not concerning other delicts. For then Medina also concerning other shameful causes (fol. 134) adds these things: From what has been said it is plain how procurers, actors, flatterers, and the rest hired for wicked works, as for killing, striking, defaming, and inflicting other injuries, can be excused from the debt of restoring things shamefully acquired. Therefore let the VV. concede that Medina also in this question is wrongly alleged by St. Alphonsus for the opposite opinion, from wherever finally St. Doctor drew that allegation; let them also concede that the allegation of Medina cannot conciliate probability to that opinion, except only fictitious probability. But it is not worth the labor to be detained by the very slight little questions with which the VV., the knot of the controversy having been omitted, dwell at greater length around the distinction of a hidden or public prostitute.

9. As regards Navarrus, the VV. write (page 346): P. Ballerini perversely alleges the sentence of Navarrus, as will be permitted to see from the following propositions. - Resp. The few things said in the Note concerning the sentence of Navarrus are contained in these: 1. that what has been accepted by cause of crime or shameful work can be retained even in the forum of conscience, nor is it necessarily to be restored, contrary to what St. Alphonsus affixes to Navarrus himself; 2. that the reason which all give concerning this doctrine with St. Thomas did not please Navarrus. But the VV. produce nothing through those five columns of theirs which contradicts these things.

And in fact, I. from Man., C. 17, n. 32, the VV. object these things of Navarrus (l. c.): Although the pact or agreement by which something is given on account of crime is not valid in that form which the parties alone pretend to make, nevertheless it is valid as a certain virtual donation, or as a certain act of holding as abandoned. - Resp. These things confirm that which is said in the Note, namely: 1. that things accepted on account of crime can be retained; 2. that Navarrus, the reason brought forward by others having been left behind, devised another, whatever it may be.

II. The VV. bring forward (l. c.) from n. 38 that Navarrus does not admit what Soto has, namely, that foul work, although it is of no price insofar as it is sin, nevertheless can be estimated by price insofar as it is a certain thing accommodated to human use. And the reason of Navarrus is that every exterior work by which a sinner works sin is for the most part such, that is, accommodated to human use; and yet none of the Catholics ever said that some wage can licitly be taken for it, at least when it is intrinsically evil. - Resp. These things confirm that which is said in the Note: that the reason brought forward by others did not please Navarrus, who never fails to urge that sin, as such, is not sellable. Moreover the VV. would not have uselessly noted here, also for defending St. Doctor Alphonsus, the sophistical manner of acting in Navarrus, when from this, that no Catholic said that sin, AS SUCH, merits a wage, he concludes the same thing against Soto concerning a sinful work even insofar as it is useful. For does not the reason which Navarrus himself admits is commonly brought forward by all with St. Thomas, and upon which St. Alphonsus also insists, point to this? To the same point look those things which the VV. bring forward (page 347) from n. 40, where Navarrus concludes: Thus, therefore, the act of sinning, although it is in itself sellable, nevertheless joined with sin, which is indivisibly unsellable, cannot licitly be sold. Concerning which same matter Navarrus (n. 38) had already written: Although the argument of Medina does not conclude that that work is unsellable of itself and in the genus of being, nevertheless it concludes that it is unsellable in the genus of morals, because namely sin is of no price, as he had premised in the same place with Soto; and (n. 40) he adds in the same sense: although something is sellable in itself, nevertheless it cannot be licitly sold when it is mixed with an unsellable thing. Namely the string always wanders over the same thing: sin is not sellable; while otherwise, by conceding that the work of itself is sellable, he furnishes weapons against himself to the adversaries, who to the instance that that work is not sellable in the genus of morals perhaps will respond that the work itself is sold in itself and a price is exacted for the work, but not that the morality of the work is sold; and indeed if a work sellable of itself cannot be sold because, as Navarrus says, it is indivisibly joined to an unsellable thing, namely to the morality of the work, perhaps it will seem that not even a work rightly done can licitly be sold, lest namely its morality be sold; for good morality does not seem more sellable than evil morality. But now setting these things aside, it is sufficiently plain that the VV. have produced nothing thus far which shows that in the Note the sentence of Navarrus was perversely alleged.

III. Finally the VV. bring forward from n. 41 what Navarrus says must be counseled to those to whom something has been promised for a shameful work. And this had already been indicated by us in the Note, namely, that the delict not be the principal cause of seeking the things promised, but the impulsive cause and occasion without which he would not seek. To this also pertains what the VV. bring forward from n. 40, where Navarrus, speaking of the sentences retracted by himself, warns that it is wrongly accepted as if he were admitting that what was promised for a shameful cause can be sought. Wherefore neither as regards this can the VV. accuse the Note, as if the sentence of Navarrus is there alleged perversely. On the contrary, it was to be desired that they not cut short the response of the same Navarrus to him who objected to him his retraction. Someone, he says (n. 40), here objects that I first held in the Spanish Enchiridion that married women and women consecrated to God sin by accepting shameful gain for the cause of shameful concubitus; the VV. do not rightly substitute here, "cause of fornication." Second, etc. And to this first head he replies: It is answered first, that it was superfluous to note the first..., since I myself assert with full mouth that I made the aforesaid change. And in fact just as (n. 34) he writes concerning a prostitute: What has been accepted by a prostitute on account of the shameful cause of fornication is not necessarily to be restored even in the forum of conscience; so he extends this to other crimes (n. 31), saying: A prostitute is not held from precept to restore that which she accepts as the wage of prostitution, and neither are other women, unmarried, married, or sacred. Likewise (n. 41), speaking of a homicide who, enticed by promises and with part of them accepted, had committed the crime, We counseled, says Navarrus, that he take care lest he seek the remaining things, namely those promised but not yet paid in part, as owed to him by legal justice; but concerning restoring those things which he had accepted, Navarrus, cohering wholly with himself, is altogether silent. But this had to be noted, so that it would be clear that Navarrus, where he denies that things accepted on account of a shameful cause are to be restored, established this not only concerning prostitution, but also concerning other crimes, about which St. Alphonsus discusses.

Therefore let us conclude concerning Navarrus that which we said concerning Adrian and Medina: namely, as regards the controversy whether what was accepted for other shameful causes besides prostitution can licitly be retained, Navarrus is alleged by no right, and therefore an allegation of this kind cannot add probability, except fictitious probability.

10. The VV. carp at (page 348) the example brought forward in the Note, of the shoemaker making shoes by wrongdoing on a feast day, as if the shoes cannot be the cause, but only ought to be called the occasion of paying the price, as Navarrus said concerning crimes; and they subjoin: The example does not fit, because it concerns a work which in itself is not evil and illicit, and the shoemaker has a just title for exacting the price of the work, namely a just and valid contract which obliges the other party from justice to paying. - Resp. I ask: Is the contract of making shoes by wrongdoing on a feast day valid or void? If it is called valid, therefore will it oblige the shoemaker to sin? If void, by what title does the shoemaker exact the price? Therefore one of two things must be defined: Either with the common sentence it must be said that an innominate contract of this kind, I give so that you may do, is perfected only by delivery of the thing or placing of the work, and after the fact an obligation of paying is present, although the other sinned in placing the work, and the work is judged worthy of a price, as St. Alphonsus says, insofar as laborious; or with Navarrus it must be said that the work indeed is in itself sellable, but since it is joined indivisibly with an unsellable thing, that is, with sin, by that very fact, as being of no price, it cannot licitly be sold; therefore a sinful work, as Navarrus concluded, cannot be the principal cause of seeking the things promised, but only the impulsive cause or the occasion without which it would not be sought. Namely the VV. here use common principles in reasoning; but one who uses common principles can with difficulty render a reason for the anomalies of Navarrus, who in this controversy professes without circumlocution that he departs from the common principles of all. Moreover the VV. find a just title of exacting in the shoemaker for this reason, that the labor of sewing shoes is suitable matter of a contract. But indeed is the granted use of the body not suitable matter of a contract? Certainly we all say that this is the matter of the matrimonial contract, and indeed in such a way that if a spouse denies this use to a spouse, or makes availability of himself or herself to another besides the spouse, we say that he or she sins gravely against justice. Therefore Navarrus also could not deny that this work of itself is sellable.

11. The VV. are greatly moved on account of those things which are said in the Note concerning Collet, and through six columns (pages 348-351) they undertake, as they say, to vindicate him from the undeserved rebukes of P. Ballerini. But in this matter there intervenes no light difficulty. For the things which are said in the Note are from Collet's Paris edition; but the VV. use the Venetian edition, which differs greatly from the Paris edition as regards this argument; indeed the VV. themselves (page 349) warn that there is a twofold work written by Collet. And if the matter has itself thus, must their rebuke of those things which stand forth in the Paris edition therefore be held undeserved because those things are read differently in the Venetian edition? Moreover as regards our question, what now matters to know is not whether Collet is worthy of some rebuke, but whether anything can be extracted from him for the cause. But he brings forward nothing which is of any moment; indeed the times through which something was deferred to the authority of Collet and writers of this flour have now passed, since divine benignity, especially through St. Doctor Alphonsus, has led moral discipline back to the older way. Add to these things that Collet restricts the question whether shameful gain can licitly be retained to prostitution; concerning which St. Alphonsus (l. c.) writes: As regards prostitutes, it is common and certain among the Doctors that they can retain the price of the prostitution furnished. What probability, therefore, except altogether fictitious probability, can be drawn from the allegation of Collet apud St. Alphonsus himself, when Collet does not touch even the least part of the question about which St. Alphonsus treats?

12. As regards Lessius it had been said in the Note that he is alleged in vain apud St. Alphonsus, so that the denying opinion may be judged probable, both that what was accepted for a shameful cause can be retained, and that a promise on account of a shameful cause is valid. The reason was given: because Lessius affirms this only concerning crimes which are punished by positive law; which indeed pertain nothing to the general question according to natural law. But behold, the VV. (pages 351-352) aim against the Note an accusation of false allegation or interpretation, and conclude somewhat charmingly (page 352): If false allegation or interpretation of some author were a crime, as P. Ballerini said above... the distinguished Professor himself certainly would have committed no light crime by this interpretation of Lessius.

Resp. As regards crimes of this kind, this is truly to be grieved over: that the VV., men otherwise excellent, prove themselves to all to be so foreign to the Latin tongue. But, these things being passed over, let us come to the matter.

The VV. allege (l. c.) these things from Lessius (Lib. 2, C. 18, n. 20): Note, however, that it is probable that he who promised something for an evil work WHICH IS PUNISHED BY LAWS, as for homicide, adultery, theft, and the like, is not held to fulfill the promise even after the work has followed, because it is the common sentence of the Doctors of each law, as Covarruvias teaches above, n. 6. And they subjoin: Therefore with clear and explicit words he speaks of crimes opposed to natural law... and therefore he says the very same thing that St. Alphonsus says: But for other crimes... there is a twofold probable sentence. - Resp. Lessius discusses an obligation which proceeds not from the law of nature, but from positive law; and therefore he apposed those words which are also seen expressed expressly in the Note: an evil work WHICH IS PUNISHED BY LAWS. But the thesis of St. Alphonsus is another, and not restricted by this special limit; therefore he also lists fornication among those crimes, concerning which Lessius is silent, because, namely, it is not a crime that is punished. For this reason Lessius soon subjoins: Although it can be answered that THOSE LAWS AND THE LIKE are to be accepted thus, that they signify that such stipulations are not valid before the fact, nor that after the fact is a right of seeking what was promised given in the external forum; but it is not their mind TO TAKE AWAY THE NATURAL OBLIGATION WHICH ARISES FROM OBLIGATIONS OF THIS KIND. See above, Cap. 14, Dub. 8. Thus Lessius, whose text therefore also ought not to have been cut by the VV. through the omission of these things, lest perhaps someone turn back upon them that no light deed which they themselves thrust upon P. Ballerini. And indeed this mind of Lessius shines out even more to one inspecting what that common sentence of the Doctors is, for which he sends one to Covarruvias. For in that place (In C. Peccatum, Part 2, § 2, n. 6) he proposes these conclusions: Before an exterior judge it is licit for no one to act for the wage or price of that work which has a crime to be punished by the same judge with an exterior penalty. But as regards the internal forum he subjoins another conclusion thus: Although repetition of that which was given on account of crime and misdeed is denied by human law, nevertheless the one accepting will not on that account be safe in the judgment of the soul if otherwise, either by reason of the matter, which was not sellable, or from this, that the agreement was iniquitous, he is held to restitution; by which words he teaches that what has been accepted can be retained, unless perhaps justice was injured in it. For otherwise, he himself subjoins, from this it would follow that an artisan or worker hired to make that which exists forbidden by law... would be held to restitution of that which he accepted as wage for the labor; so also a soldier hired for an unjust war, and one which he himself certainly knows to be most iniquitous, would be held to restore the wage furnished to him by right of hiring; and nevertheless I would condemn neither the artisan nor the soldier to restitution..., nor would I compel him in the judgment of the soul, nor do I think he can be compelled. A thousand examples certainly could be proposed for these. Therefore let it be concluded that the question of Lessius is altogether diverse from the question of St. Alphonsus, and therefore this allegation of the same contributes nothing to asserting the probability of the opinion for which he is alleged.

Again concerning Lessius the VV. write (l. c.): Cap. 14. Lessius treats the question, Whether what has been accepted on account of a shameful cause is necessarily to be restored. First he sets forth and approves the negative sentence; and then, n. 60, he adds: I say third. Although this sentence is truer, nevertheless the contrary, which judges that what was accepted on account of a crime punishable by the laws, unless it is judged donated, must be restored, is not improbable, as Covarruvias teaches above, n. 6... and it has reasons sought from the laws which are somehow probable. And after these things they immediately conclude that in the Note Lessius is falsely alleged or explained. - Resp. The same response as above recurs; and in fact Lessius there (Cap. 18, n. 20) refers readers to this place (Cap. 14, n. 8). Therefore one must answer that Lessius did not say these things with respect to natural law, but with respect to merely positive law. And in fact as regards natural law, he had absolutely established beforehand (n. 52) this thesis: I say first: If only the law of nature is considered, what has been accepted on account of a shameful cause, or on account of a work which is sin, the work having been fulfilled, is not necessarily to be restored, whether that work is against justice or not. Passing then to positive law, less absolutely he thus proposes (n. 56) the second thesis: I say second: It seems truer also that by positive law this is not necessarily to be restored. Finally, after the objections against this second thesis have been solved, he thus proposes (n. 60) the third thesis: I say third: Although this sentence is truer, nevertheless the contrary, which judges that what was accepted on account of a crime punishable by the laws... must be restored, is not improbable. Moreover those words: Although this sentence is truer, manifestly refer not to the remote first thesis, which treats the matter according to natural law, but to the proximate second, which treats of positive law; and this is confirmed from this, that the third thesis is restricted by Lessius to crimes punishable by the laws, which has no place as regards natural law; and finally the same thing is proved from the citation of Covarruvias, to whom Lessius also sends the reader here. But St. Alphonsus disputes concerning this question according to natural law, and does not discuss the exception of crimes which are punished in the external forum by positive laws. Therefore the conclusion returns: that the allegation of Lessius apud St. Alphonsus can introduce a merely fictitious probability.

13. As regards Diana, whom the VV. (pages 352-354) rightly contend is alleged apud St. Alphonsus, the matter can be dispatched very briefly.

For 1. Diana (Tom. 8, Tr. 7, Rel. 59) makes the question only concerning prostitution, as is manifest also from the text produced by the VV. But St. Alphonsus (l. c.) disputes only about other crimes, not about prostitution, which from his controversy, as the VV. themselves not once admit, he positively and expressly excludes. Therefore the allegation of Diana pertains nothing to the question of St. Alphonsus. Therefore the probability which is sought from the allegation of Diana is altogether fictitious. - 2. Diana builds that probability, whatever it may be, upon the authority of Durandus, Medina, Navarrus, Comitolus, and Valerus. But from the premises it is plain that Navarrus, Medina, and Comitolus are invoked in vain; but as regards the sentence of Durandus and Valerus, as being in a manifest matter, not even the VV. themselves attempted to cast in doubts. Therefore as regards the extrinsic argument, no probability can be extracted except fictitious probability. - 3. But as regards intrinsic arguments, Diana himself, as we said in the Note, nor did the VV. dare to call it into doubt, elsewhere contends that the reason which he brings forward here is false. Therefore, as has already been said in the Note, Diana himself of himself destroys that empty probability, which rests upon no reason except a false one, nor upon any authority except a fictitious one.

14. The VV. advert (pages 354-355) that Concina, whom St. Doctor alleges with the foregoing, is passed over in silence in the Note; and then his doctrine from from the Compendium. - I reply. Concina rests upon allegations of which, partly in the Note, partly in this addition, it has been shown that there is no force, nor does he bring other reasons than those which are refuted by St. Alphonsus. Besides, as has already been said elsewhere, St. Alphonsus calls Concina most rigid; therefore here also it must be repeated that the vote of a rigid author is of sufficient weight when he grants indulgence, but not likewise when he condemns. Therefore it is superfluous to discuss Concina here.

15. Finally, when in the Note it was said: As regards the not ignoble Doctors whom Tamburini names, he in fact mentions no one else besides the usual Navarrus, Comitolus, and Valerius, whose names he says he borrowed from Diana; the Vindicators add (p. 355): Hence it will not be beside the point to answer this observation also; for besides the authors whom St. Alphonsus, Collet, and Concina cite for the same opinion, with prostitution excluded, there are in fact many not ignoble doctors who hold and defend this opinion either indistinctly, or as regards sins committed against justice, or at least judge it probable.

But two things occur to be observed concerning these points. For first, Collet, like Diana, treats the question only concerning prostitution; but the Vindicators expressly here seek authors for a question which excludes prostitution; therefore they seek beside the point the Doctors alleged by Collet. Then, indeed, no less beside the point are invoked the authors who either hold that opinion or judge it probable as regards sins committed against justice. For, passing over for the present in what sense this question is to be taken, and whether others have rightly understood the state of the question, meanwhile this is manifest: that this is an altogether special controversy, which must be decided by special reasons, and therefore at most can present an exception to the general thesis. But the present question is general, and is not concerned with some case perhaps excepted for a special reason. Therefore the four authors whom the Vindicators bring forth in this matter (pp. 356-357) are alleged beside the point.

Therefore there remain thirteen others alleged by the Vindicators (pp. 356-360), namely Henno, Amort, Trullench, Dicastillus, Mastrius, Bassaeus, Tamburini, Herincx, Wigandt, Billuart, Gotti, Struggl, and Cuniliati.

But from these thirteen eight must be wholly deleted, namely Trullench, Dicastillus, Mastrius, Bassaeus, Herincx, Billuart, Gotti, and Struggl. The reason is that, as the texts of these authors alleged by the Vindicators themselves openly make clear, these authors do not there set up the general question according to the law of nature, such as is the question which St. Alphonsus treats, but they treat the special question concerning a crime or evil work which is punished by laws; and when the controversy is thus proposed, they indeed, just as we saw Lessius affirm above, attribute some probability to the opinion received especially by jurists and Canonists, namely that, with positive law considered, the wages of a base work cannot be retained, but must be restored either to the giver, or to the fisc, or to the poor, concerning which the Doctors then dispute among themselves. But any probability whatever of this sort concerning this special opinion detracts nothing at all from the certitude of the sentence concerning the general question decided from natural law; rather, since it is an exception to the general thesis, according to the well-known saying, it confirms the rule to the contrary. Therefore.

In this matter that is less to be approved, that the Vindicators derive the sentence of Trullench from the Summary prefixed to dub. 2, ch. 17, book 7, where it is read: 1. Before the perpetration of the work neither the promisor nor the promisee is bound; indeed the promisor is bound to revoke the promise; but once the evil work has been perpetrated, he is bound by justice to pay what was promised; 2. the opposite is probable. These last words the Vindicators eagerly seize upon (p. 358), as though there that opinion opposed to the general thesis were called probable. But the matter is not so. For what in section 2 pertains to that rubric of the Summary is this: Lessius says it probable that he who promised something else for an evil work which is punished by laws, as for adultery, homicide, theft, and the like, is not bound to fulfill the promise even after the work has followed. Therefore, as was said above, here only an exception is proposed concerning a special case, not according to natural law, of which there is question in the first thesis, but according to positive laws; but the contradictory of the proposed thesis is by no means there declared probable. Nay rather, Trullench, after Lessius, adds in the same place that the mind of these laws is not to remove the natural obligation which arises from onerous promises of this kind.

Five of the authors whom the Vindicators brought forth remain; and of these Henno and Amort truly stand for the opposite opinion. But by what reasons do they prove the matter? Let Henno be heard (De Restitutione, disp. 6, q. 5, concl. 1): "Those contracts," he says, "inasmuch as they are onerous, ought to oblige both the promisee and the promisor.... But they do not oblige the promisee, since no one can be obliged to sin; therefore neither do they oblige the promisor." Thus the text of Henno related by the Vindicators themselves. But this is, as is clear, either to have been ignorant of, or to have set aside, the first elements of this matter, which teach that innominate contracts of this kind are not perfected by promise, but are perfected, and therefore beget obligation, only after the handing over of the thing, or of the work, or its performance. Are these things such as to give even the least probability to the thesis? But Amort also fights with the same arms (tract. 6, sect. 1, q. 7, prob. 3): "If contracts," he says, "concerning a base work were valid and obligatory, then they would oblige either both of the contracting parties, or one only; neither can be said; therefore." He proves the minor. "If both are said to be obliged, then it would be manifest that one party of the contracting persons is obliged to sin; but this implies contradiction; therefore." Thus Amort, trampling upon the first principles of moral discipline. But that some opinion may be judged in some way probable, even St. Alphonsus requires that it rest upon some grave and solid reason. But is that a solid reason which has its birth from forgetfulness of the first principles? Let us therefore conclude, and indeed with St. Alphonsus as guide, that these authors add as much probability to that opinion as those sophisms have of value.

The remaining ones from the thirteen alleged are now these three, namely Wigandt, Cuniliati, and Tamburini. And concerning Tamburini it is not relevant now to repeat those things which are said in the Note, namely that he fortified his assertion with no authority except false authority; and indeed this has here been confirmed more evidently by the fact itself. This may be added, that he no less falsely joined Valentia to other false allegations. For Valentia, who (In 2. 2, disp. 5, q. 7, punct. 5, sect. 2) defends the common sentence, never said that the opposite opinion is probable. Moreover Valentia discusses only this: whether public prostitutes can accept and retain something as wages for a base act. Therefore Valentia would be alleged here beside the point, since the controversy of St. Alphonsus expressly excludes the case of prostitution, as we have already said several times. I would add that it scarcely appears how the Vindicators, while they gather authors in order to show that Tamburini rightly said that not ignoble writers are not lacking, and so forth, enumerate Tamburini himself among these writers.

As regards Wigandt, he (tract. 8, exam. 4, n. 54) can seem to have attributed some probability to the opposite opinion to the extent that he says the common sentence is more probable; for in fact he does not even mention the opposite opinion, nor does he suggest that there is a twofold sentence concerning this matter. But some weight could be conceded to this argument if it were granted to us to divine that Wigandt perhaps was led by some new reason, or by some vote of authority still unknown to us. But so long as that does not appear, surely it will be permitted to hold that assertion of Wigandt in that place in which something gratuitously asserted is held.

Finally Cuniliati remains, to whom we shall join Mastrius also; since each, no differently than Wigandt, could be thought to have judged the opposite opinion probable because they too call the common sentence, which they defend, more probable. But whatever vote of Mastrius this is betrays itself as sufficiently miserable. For the opposite opinion he brings that poor argument which we have already seen his confrere Henno use, and after them also Amort. Here is Mastrius's argument, as it also stands in the Vindicators (p. 358): A contract concerning a base thing before the deed is null; otherwise it would oblige one to sin...; therefore also after the deed. But what will anyone answer to this argument, if he is not ignorant of the first elements concerning contracts? He will say: I concede the antecedent, and I deny the consequence; because innominate contracts of this kind do not consist essentially and are not perfected by words and promise, but by things, or by the handing over or performance of the work, and only then do they assume the force of obliging.

Nor must the allegation of Cuniliati be called less miserable, which the Vindicators (p. 360) say that they took from the Venetian edition of the year 1796. For first the true Cuniliati (tract. IX, ch. V, sect. 10) teaches the common doctrine absolutely, and casts in no mention of the opposite sentence. But the things which are brought forward by the Vindicators are not Cuniliati's, but belong to an addition which manifestly appears to be an assumption by another hand. And indeed this unknown author of the additions, if he departs somewhat from the sentence of Cuniliati, does not conceal the reason by which he was moved. For there see the usual allegations: of Comitolus and Collet, together with the condemned work of Henry of St. Ignatius, and the unknown anonymous author of the Collationes Parisienses alleged by Collet; to these he then appends in summary form what Concina and Antoine said concerning this argument. What therefore is this worth, resting on foundations of this kind? But then, as regards the cause of the Vindicators, they limp from another side. For we have already observed above that both Concina and Collet, with their own, dispute only concerning prostitution. But the Vindicators seek probabilities from writers not ignoble, not in the cause of prostitution, which they themselves with St. Alphonsus maintain does not pertain here, but in the cause of base profit sought and received from other crimes. Therefore these allegations also are not fit for producing probability, unless fictitious probability.

Therefore let it at last be permitted to conclude that through those fifty-four columns the Vindicators have brought forward nothing at all suitable for weakening what was said in the Note, namely that the probability of the opinion which St. Alphonsus also sets aside is wholly fictitious, inasmuch as it rests upon no reason except a false one, and upon no authority except a feigned one.

Q. 7. If a man has given something to a woman for seducing her, whether she, consent having been denied, can retain the thing?

Resp. Affirmatively, because no pact concerning the sin to be perpetrated intervened, and therefore the donation is to be held altogether liberal, since the woman promised absolutely nothing on her part. - St. Lig., n. 712, and others commonly. De Lugo, however (Disp. 18, n. 50), thus tempers the matter: It is also certain to me that it is not a sin against justice, although the woman has the intention of not consenting to the desired baseness; because the acceptance of the gift does not include a tacit or express promise of consenting, but includes only a moral obligation of gratitude in licit and honorable things. But the too credulous lover, who hoped for more than he ought, must impute it to himself. Nevertheless it is difficult for her to be excused from the sin of scandal and against charity; because the acceptance itself is the cause that he gives, and it is certain that he would not give without a new sin. - See Casus, n. 762 and following.