Article — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Article III. On Restitution on Account of Adultery
The obligations of each adulterer must be considered according to various circumstances, namely according as the adultery was, or was not, plainly voluntary on each side, whether damaging to the family or not.
- Principles. - I. Each adulterer is held in solidum to repair all damages of the family, if the crime was voluntary on each side, because the whole is to be imputed to each. Hence 1. those must be restored all the expenses which the husband sustained in nourishing and educating the offspring; 2. if the illegitimate son has already received the inheritance along with the legitimate children, compensation must be made to these pro rata. - St. Lig., n. 659.
II. The adulteress, if she has paraphernal goods, ought to restore from these to the husband and children injured, through manual gifts, through contract, testament, legacies..., etc. If she does not have them, let her administer the family more diligently, be more sparing in private expenses, and labor more diligently, insofar as her state permits.
III. If the adulterer extorted the consent of the woman by force or grave fear, he alone is held to repairing the whole damage from what was said above, n. 728.
- Questions. - Q. 1. Whether the woman is held to reveal her crime, if she cannot repair the damage in another way?
Resp. Negatively, speaking generally. The reason is: 1. because commonly this revelation cannot be made without great infamy, and often also without danger of death, or of perpetual hatred, or of other grave evils; 2. because even through this she could repair the damage only with difficulty, especially since the son is not held to give faith to his mother. Some except the case in which the mother is of ruined reputation 1, etc. - St. Lig., n. 653.
1 But an exception of this kind labors under another inconvenience. For if the son is not held to believe the sole testimony of his mother, much less will he be held to give faith to the testimony of one woman, who besides is of ruined reputation.
- Q. 2. What is to be said in doubt whether the offspring is the husband's or the adulterer's, or is from this adulterer rather than from another?
Resp. to the second. Each adulterer is held pro rata to restitution according to the more common sentence, which seems to be held. The reason is that the damage is certain, and it is certain that it was brought about by one or the other; but each one is an efficacious and unjust cause of the uncertainty, which impedes compensation from being exacted determinately from one. Moreover the innocent person ought not to suffer from this uncertainty. - Lacroix, n. 337. - Lugo, n. 19. - Roncaglia, c. 2, qu. 3.
Nevertheless St. Lig., n. 658, dissents, because, as he says, a certain burden cannot be imposed where the obligation is doubtful 2. Nevertheless he excepts if the second adulterer adverted, at least implicitly, that he would be the cause of that uncertainty. Likewise if the adulterers perpetrated the adultery from common counsel.
2 ** What the Doctors thought concerning this controversy will certainly be understood with difficulty by one who forms a judgment about the matter merely from the allegations produced by St. Alphonsus. For for his own sentence, which he calls more probable, he reports the Doctors thus (Lib. 3, n. 658): Thus, he says, Sanchez, Cons. Lib. 4, C. 3, Dub. 1, n. 5; Disp. 15, n. 20; Zachar., that is, Croix, Lib. 3, P. 1, n. 704, with Gob., Less., Fill., and Bon., and Salm. ibid., that is, de Restit., C. 3, n. 32, with Sot., Trull., Lop., etc., against Dicast., Mol., and others. And indeed in the first edition, in the year 1748, St. Doctor after the Salmanticenses had added Lugo also for his opinion; but then in other editions we see the name of Lugo removed, although without his name the allegation Disp. 13, n. 20 was retained, which empty allegation is seen also in the recent Turin and Ratisbon editions of the year 1846. But that the name of Lugo was removed by St. Alphonsus himself is suggested by this: that afterward he himself, l. c., alleges Lugo (Disp. 13, n. 24) against himself, as if Lugo there established that adulterers are held to support pro rata of the doubt; which nevertheless is itself less exact. For there Lugo, on the contrary, inclines toward the sentence which denies the obligation of nourishing the offspring, although he admits in the adulterers an obligation of restoring to the husband and legitimate children at least as to part for the damage inflicted upon them from adulterine offspring.
But to come to the remaining allegations, St. Alphonsus, as we have seen, cites for himself Zacharias, that is, Croix, Lib. 3, P. 1, n. 704. But behold, the same St. Doctor a little later, l. c., writes: Nevertheless Croix himself, Lib. 3, P. 2, n. 337, with Lugo, n. 24, speaking of adulterine offspring, says absolutely with Illsung that adulterers are held to support pro rata of the doubt. How, therefore, does St. Doctor allege Croix for himself, when, by his own admission, Croix says absolutely that adulterers are held to furnish support? Nor is it permitted to conjecture that the question of St. Alphonsus, who treats generally of restitution of damages, differs from the thesis of Croix, who perhaps speaks of support alone. For 1. Croix, Lib. 3, P. 1, n. 704, which place St. Alphonsus cites for himself, asks namely by whom the offspring is to be supported; 2. in the other place, P. 2, n. 337, he speaks also of restitution of the hereditary part subtracted from the legitimate children. What certain thing, therefore, can be deduced from this? St. Doctor then brings forward Gobat, but he does not indicate the place; and perhaps he took this allegation from Croix, Lib. 3, P. 1, n. 704. But indeed 1. Gobat is there alleged by Croix not concerning the present question, but concerning another; 2. in the present question, however, Gobat (Quin., Tr. V, Cap. 28, n. 58) calls the sentence of Molina, against which he is cited by St. Alphonsus, most probable.
Then St. Alphonsus brings forward Bonacina also for himself. But the Salmanticenses themselves (Tr. 13, C. 3, n. 31), whom St. Doctor alleges, report Bonacina for the opposite sentence. And in fact Bonacina (De Matr., Q. 4, Punct. 15, n. 10) has these things: When two adulterers have known one and the same married woman, who conceived at that time when the husband was absent, each one is held both to restore for his part, etc. Thus Azor, Rebell., Molina, and others.
St. Doctor adds the allegation of Sanchez, which seems to have been taken from the Salmanticenses. But this seems to touch the matter even less than the others. For Sanchez asks (Cons. Lib. 4, C. 3, Dub. 1) who are called natural children, who spurious. But he infers (ibid., n. 3) that those whom someone had from a concubine outside the house are not to be called natural if the father does not recognize them as sons; otherwise, if he has always recognized them as sons. These things, as is plain, pertain nothing to the present question.
As regards the allegation of Soto, in the first place this argument would prove too much; since in whatever hypothesis Soto (De Iust., Lib. 4, Q. 3, art. 2, ad fin.) denies that the adulterer is held from justice to any restitution. In truth, he says, I do not plainly see why an adulterer would be held to any restitution from justice. This opinion Sayrus also refutes with others (Lib. 8, C. 3, n. 20-21).
But Lopez (Instr., P. 4, C. 90), to whom here must be added Villalobus (Sum., Part 2, Tr. 11, Diffic. 34) and Sayrus (l. c.), does not define that two adulterers are held to no restitution, but these only say that neither of them is held to have that offspring as his own. But that this sentence does not exclude the obligation of restoring is plain both from the nature of the matter and from fact. From the nature of the matter indeed, because the obligation of restitution is not sought here from this, that each adulterer ought to believe the offspring to be his own, but from another reason, which also the Author intimates in the text. From fact, moreover, because in reality the Doctors reconcile each sentence in such a way that they teach each as true. Thus, besides those alleged, Molina also (Part 4, Disp. 103, n. 3), and Trullench (Lib. 7, C. 9, Dub. 7, n. 5), whom therefore the Salmanticenses (l. c., n. 32), and after them St. Alphonsus, allege undeservedly for the opposite sentence.
There remain Lessius (Lib. 2, C. 10, n. 40) and Filliuccius (Tr. 32, C. 8, n. 223). But these in no way weigh this controversy concerning uncertainty between two adulterers, but only establish the question generically concerning the case in which someone merely has a doubt whether he himself is the father. But that this does not exclude a diverse sentence concerning the case about which we are treating is manifestly plain from this: that Bonacina, Molina, Lugo, Trullench, etc., establish those same general principles as Lessius and Filliuccius, and yet consequently did not think that the same sentence was to be held concerning our case. And the reason for a diverse sentence according to the diversity of the case is not obscure: namely, as we have already intimated, the obligation of restitution is not sought from this, that one or the other adulterer is certainly judged to be the father.
Finally, what the suffrage of the Salmanticenses is worth can be judged from this, that their whole furnishing consists of the allegations here weighed.
St. Alphonsus adds (l. c., n. 650) that the opinion which he follows is called common by Lugo, Disp. 13, n. 19. But in fact here Lugo asserts precisely the opposite. The common sentence, he says, certainly affirms that each one must concur in part toward support, etc.
But as regards intrinsic reasons, St. Alphonsus is not far from admitting the force of the argument which is used by the patrons of the opposite sentence, and which is set forth thus apud Croix (Lib. 3, P. 2, n. 337): The reason is that although one who doubts whether he caused unjust damage is held to nothing, which is the argument of St. Alphonsus, nevertheless here each one, by common work, is the cause of the uncertainty itself, which unjustly impedes the due restitution from being able to be exacted from one determinate person, and into this damage each consented by willing copula of itself causative of damages of this kind, as Ills. argues, n. 97, etc. And Dicastill., Reding, Pettschacher, Illsung, Mezger, etc., apud Babenstuber (Tr. 7, Disp. 5, art. 3, § 3, n. 38), and Elbel (Theol. Sacr., Part 3, Conf. 18, n. 452), indeed urge this reason excellently. Moreover St. Alphonsus does not deny the force of the argument, but merely requires that the adulterers had foreseen this damage; and what sort of foresight this ought to be, the same St. Doctor teaches (De Act. hum., n. 10), where he postulates that the agent, in placing the cause, advert at least in a confused way that an effect of this kind would follow from that cause. Indeed these words are not to be accepted as if the agent ought to know that that effect will certainly follow from his action, but thus: that if the effect follows, the agent knows that the effect must be attributed to his action. Therefore, although it is uncertain whether the woman will conceive from the adultery, or whether death will follow from the explosion of arms, nevertheless if either offspring follows from adultery, or death follows from the explosion of arms, no one doubts that the effect must be ascribed to the cause placed. Moreover, since from the adultery perpetrated either the conception of offspring, or the uncertainty about which there is speech, if perhaps another adulterer has approached the adulteress, are effects of this kind, which follow not by accident, but of themselves from the adultery of each, an excuse can certainly be pretended with too much difficulty, that no foresight of the damage that followed, not even implicit, preceded. Otherwise even the adulterer would seem to be excused who had thought absolutely nothing about offspring to follow from his own crime, or even who had persuaded himself firmly that no offspring would follow from that adultery. But over excuses of this kind there prevails the fact that whoever undertakes a crime also explicitly or implicitly takes upon himself the burden of consequences of themselves coming from it. Hence we see it done that, although so many most grave Authors have treated this controversy accurately on every side, nevertheless Pettschacher alone, whom Elbel and Babenstuber afterward followed in some way, produced this exception in passing.
Q. 3. Whether a son is held to believe his mother, even when she swears, that he is illegitimate?
Resp. Negatively, because from right and common sense no one is held to believe one witness, even of the most approved faith. Otherwise, however, if besides the testimony of the mother evident indications were to accede, for example, the absence of the father for a long time. - St. Lig., n. 654. - Laymann. - Roncaglia.
- Q. 4. Whether, if adulterers or wealthy fornicators have sent offspring to a foundling hospital, they are held to reimbursing the expenses?
Resp. It is controverted. First Sentence, the more common and more probable, affirms. The reason is that foundling hospitals were instituted for the sake of infants, not indeed of parents; nor is it to be presumed that their founders wished to exempt the rich from paying expenses. - Lugo, D. 13, n. 3. - Billuart. - Bouvier, de Restit., p. 2, art. 2. - Carrière, n. 1373. - Rousselot, opusc. de sexto praec.
Second Sentence denies, because foundling hospitals were erected for all infants indiscriminately who are cast off by parents. Nor is it an obstacle that subsidies are furnished by the Government or by the Municipality for these little ones; because these are generally assigned for abandoned little children, without attention being given to the parents. Moreover, hospices of this kind were instituted for this end, that illegitimate infants might be freed from the danger both of eternal and of temporal death, to which they would be especially exposed unless they were received in those pious places. For how many impious and barbarous parents has fear of infamy driven either to procuring the abortion of their offspring, or to bringing death upon it? Besides, the children of the rich incur such danger no less than the children of the poor. - Thus St. Lig., n. 656, who thinks this sentence more probable.
Nevertheless the patrons of this sentence also agree that in practice the parents must be earnestly exhorted to give something to the foundling hospital, at least by title of penance.
- Q. 5. How much must be given to the hospice, according to the patrons of the prior sentence 3?
3 Since the second sentence also is sufficiently probable, indeed in the judgment of St. Alphonsus is more probable, this question seems useless; because the Confessor cannot impose the obligation of paying something as owed from justice; but if the speech is about alms to be freely given, the quantity seems to be permitted to the judgment of the one giving.
Resp. No certain rule can be defined. For the solution of the question depends upon various circumstances of things and places, upon the prolonged life or upon the premature death of the offspring. But scarcely, they say, a sixth part of children reaches the age of twelve years, and often it is unknown to the parents whether they live or not. Whence, they conclude, it will be enough if the parents pay 200 or 150 francs to the foundling hospital pro rata of the doubt. - Bouvier, ibid. - See Casus, n. 743 and following.