Article III. On the Use of Probability, and on the Special Rules for Forming Conscience in Doubts

75. • Besides the general principles by which the theory of probabilism was established in the preceding article, namely: An obligation is not to be imposed unless it is certain concerning it, or a doubtful law does not oblige, certain special rules also are enumerated, by which those principles are confirmed, or applied in particular cases. They are the following:

I. In doubt one must stand for that for which the presumption stands. The reason is that presumption for the most part effects moral certitude, at least broad. Hence if you are accustomed at such a time diligently to recite the Breviary, and you doubt whether you have recited some part, the presumption favors you, and exempts you from the obligation of reciting or repeating. Likewise if you doubt whether the Superior rightly commands or dispenses, the presumption stands for him; because he can be led by reasons unknown to you, or is considered to judge prudently concerning known reasons. Besides, right order and the common good require that in such a case deference be given to him. - Thus commonly theologians.

II. In doubt judgment must be made from things ordinarily happening. An axiom commonly received. - St. Lig. everywhere. This rule falls back almost into the preceding one, since in each presumption is the reason for judging thus. But the prior rule extends more broadly; since presumption can be drawn not only from things ordinarily happening, but also from particular circumstances. - St. Lig. ibid.

III. In doubt one must stand for the value of the act. It is a rule of civil law, commonly applied also to theological matters. This must be understood if the principal fact is certain, and there is doubt concerning some necessary circumstance or condition, or concerning the due manner: for example, if you doubt whether you confessed a sin with sufficient sorrow, you are not held to confess again. - St. Lig., book 1, no. 26, etc. This principle seems also to be understood 1. in favor of liberty, provided that a contrary presumption, or the common good of the Republic or of Religion, does not stand in the way; 2. against liberty in the external forum, or even in the internal forum, when there is question of the public good, for example of contracts, especially of matrimony. But the reason why that principle is not to be applied in every case against liberty is sought from another principle mentioned above, namely: An obligation is not to be imposed unless it is certain concerning it. Moreover the obligation is not certain, unless some evident reason of justice, of Religion, of the public good, or of another end necessarily to be obtained, urges. - St. Lig., book 1, no. 26, book 6, no. 505. - Voit, no. 38.

76. • IV. In doubt favors are to be enlarged, and odious things restricted (Rule of Canon Law 15 in VI); that is, in doubt the more benign things are to be preferred. Hence according to this principle, and the more common interpretation, these things seem to be established: 1. As often as odious things and favors can be separated, odious things are to be restricted, and favors enlarged, as much as can be done without violence being inflicted on the sense of the words. 2. If odious things and favors are indivisible, then judgment must be made concerning the intention of the legislator from his words, from the subject matter, or from the adjoining circumstances. 3. If the intention of the legislator cannot be clearly determined, attention must be given more to favor than to odium. - St. Lig., book 1, no. 99.

But by odious is here understood whatever tends to punishment, or harms the right of a third party, or is opposed to common right. But favor, or favorable, whatever indulges liberty, or grants grace, without detriment to private persons, or to the community, or to the right itself.

V. In obscure matters, what is least must be held (Rule of Canon Law 30 in VI). This rule is to be understood thus: Where the true sense of a law or statute is not clear, and after inquiry has been made it cannot be determined either from the nature of the thing, or from the context of the words, or from the custom of the place, or from another circumstance, the less burdensome interpretation or the one more benign to liberty is to be admitted. The reason is that the legislator is not considered to wish to oblige beyond that which is clearly expressed in the law. Hence in doubt concerning the quantity of penalty to be inflicted, the least is to be chosen. Likewise, if the delict is not certainly clear, the accused must be absolved.

VI. In doubt of fact the following axioms, or rules of civil law received among all, are valid, namely 1. In doubt, a fact is not presumed, but must be demonstrated. But this must be understood of doubt concerning a principal act, for example if there is doubt whether someone struck another, this fact must not be presumed, but he who affirms must positively prove it. - 2. In doubt, a fact is presumed, or that which by law had to be done is presumed to have been rightly done. This must be understood of doubt concerning an accessory act, the certitude of the principal act being supposed; for if something had to be done by law, or if it is ordinarily accustomed to be done, or is favorable to the one acting, it is presumed to have been done. - 3. In doubt no one is presumed evil, unless he is proved so. This is valid whenever there is question of doubt concerning some delict. For that must not be imputed unless it is certainly clear concerning it. The reason is that delicts are not presumed; nor is anyone presumed evil, but he must be proved so.

VII. In doubt the safer part must be followed (a rule of canon law). This rule must be restricted to cases of practical doubt, or to those in which the end is necessarily to be obtained, namely where probability would not remove the danger which the law commands altogether to be avoided, as for example in confecting the Sacraments, according to what was said above, no. 56, and is known from all the things thus far set forth ¹.

¹ Above (in the note to no. 70), with St. Alphonsus it was observed that, from the common sentence of the Doctors, this rule, or others of this kind, as to speculative doubts, is of counsel, not however of precept.

77. Resolves. - 1. It is not licit to follow an opinion only probably probable against the law, because that opinion is not properly and solidly probable ², and therefore cannot be had as a sufficient reason for rendering the law uncertain.

² If you apply the words probably probable for a merely nominal and arbitrary definition, so that you wish to signify an opinion for whose probability there militates no grave and solid reason which could move to prudent assent, let what the Author has stand. But if you use the words, as is proper, according to their proper sense, the matter stands otherwise. For to affirm something probably, by the consent of all, is the same as to assert something because of a grave, solid, and prudent reason. Therefore if you say something to be probably probable, with the proper sense of the words considered, it is necessary that you be led to affirm it by a prudent, grave, and solid reason. Therefore it is beside the matter that what you say is probable, being moved probably, that is, by a grave, prudent, and solid reason, you would deny this same thing to be properly and solidly probable. On this matter, to remove ambiguities, it is indeed useful to recall to memory what Suarez, after St. Thomas and very many Doctors of the Scholastics, admonishes (On Penance, disp. 22, sect. IX, no. 5), that in moral matters solid and prudent probability is equivalent to a certain moral certitude; precisely because in matters of this sort greater certitude cannot be had. And this indeed common practice also suggests. For is not someone believed, by common consent, to act prudently enough if he holds as probable that which he finds handed down as probable, for example, by St. Antoninus after St. Thomas, or by St. Alphonsus after Suarez, etc.? Yet what certitude at last do we have in this beyond that prudent probability which, as we have said, ought to seem sufficient in matters of this kind to each wise man?

2. It is not licit for you to follow a sentence probable to others, but actually altogether false to you ³. The reason is that if you actually judge something to be illicit, and you do it, in the present act you have a conscience of sin, and therefore you act against your conscience. Therefore that you may licitly follow the sentence of another, you must first make it your own, that is, judge it to be probably true ⁴, or its object to be probably licit. - Reuter, no. 105.

³ Thus if there is question, for example, of the sentence handed down as probable by St. Alphonsus, that there is no obligation of denouncing a Confessor who has merely consented to solicitation. For it will be altogether false to you, if you know that it was condemned by the Congregation of the Holy Office, as we shall see in its own place, and indeed that that decree of the Sacred Inquisition was confirmed by Benedict XIV (in the constitution Sacramentum Poenitentiae) by Apostolic authority.

⁴ That you may make the opinion of another your own, it is not necessary that his intrinsic reasons move you to assent; but it will suffice that the authority of another induce you into a prudent doubt concerning your own sentence.

3. It is not always licit to follow any opinion whatever that is speculatively probable; because sometimes a speculatively probable opinion is not practically probable; namely, there can be an action indeed licit in itself, which nevertheless in practice becomes illicit because of danger of scandal, irreverence, injustice, etc. ⁵.

⁵ Then especially the Doctors called an opinion only speculatively probable, not practically, when the licit use of the same opinion requires those conditions which in practice can scarcely, or not even scarcely, be hoped for.

4. It is not licit to follow a probable opinion when the opposite appears most probable; because a grave motive does not seem able to stand in conflict with a most grave motive; whence such an opinion must be held as doubtfully or slightly probable ⁶.

⁶ Perhaps it will never happen that, with intrinsic reasons considered, someone judges probable an opinion whose opposite he holds as most probable; but it is otherwise if only the judgments of Authors concerning the same matter are considered. For you will certainly find that some hand down as probable, indeed hold as more probable, an opinion whose opposite others defend as most probable, and even morally certain. See St. Alph., book 6, no. 443. But then the matter itself admonishes the prudent reader that inquiry must be made more diligently into the matter; and thence it will easily appear either that the one opinion is called most probable without cause, or certainly that some probability is vainly attributed to the other, as we shall see in its own place in the cited place of St. Alphonsus.

78. Questions. - QUESTION 1. Whether it is licit to use probability not only in the matter of positive law, but also of divine and natural law?

I answer affirmatively, because in any matter it can happen that the existence of the law is not certain, namely whenever a true and solid probability militates against it; and therefore concerning such a law there is truly invincible ignorance. Moreover God, the author of law and the principle of the natural order, is not considered to wish to oblige us when we invincibly are ignorant of the existence of the law. - Lacroix, etc.

QUESTION 2. Whether a Confessor can, or ought to, absolve a penitent who wishes to follow an opinion indeed probable, but opposite to the sentence which he himself holds?

I answer affirmatively, if the penitent adheres to a truly probable opinion with formed conscience. The reason is that the penitent has a right of following a truly probable opinion, nor does the Confessor have a right of imposing his own opinions on him, even if they seem more probable to him. For the Confessor is not the judge of opinions which the penitent is held to follow, but is only the judge of the disposition of his penitent, as is clear from Trent, session 14, ch. 5. - Thus St. Lig., book 6, no. 604, and others commonly ⁷.

⁷ Concerning this matter St. Alphonsus says (book 6, no. 604): But the Confessor, whenever his opinion is not evidently certain, cannot oblige the penitent to follow it; whence then he not only can, but even is held to absolve him.

QUESTION 3. Whether extrinsic probability constitutes an opinion truly probable?

I answer affirmatively, at least speaking generally; indeed in questions whose solution depends very greatly on the estimation of prudent men, greater authority constitutes greater probability. For it is difficult for something to be extrinsically probable without a truly grave reason being for it. But it must reasonably be presumed that such a reason is present when many and grave Authors hold some opinion to be probable, since they are rightly considered to have looked thoroughly into the truth of the matter, and to rest on solid motives. - Hence St. Thomas: Someone of little knowledge is made more certain about that which he hears from some scientific man than about that which seems to him according to his own reason, 2. 2, q. 4, art. 8.

There is also added the authority of the Sacred Penitentiary. For when the Sacred Congregation was asked whether a Confessor who follows the doctrine of St. Ligorius, without weighing his reasons, but only because of his authority, is to be disturbed, it responded negatively; and this response was approved by the Supreme Pontiff Gregory XVI. Therefore extrinsic probability supposes intrinsic. Therefore...

79. • QUESTION 4. What must be thought concerning that principle most familiar to not a few probabilists: HE WHO ACTS PROBABLY, ACTS PRUDENTLY?

I answer. That principle, enunciated thus, is false ⁸, if it is had as a primary principle and one having force per se. The reason is that an action cannot be prudent by the force of probability alone, but has this from certitude alone. But it is true if it is had only as a consequence of another primary principle, which is per se the ultimate rule of acting, such as this one can be: There is no obligation unless it is certain concerning it.

⁸ To a question of this kind perhaps it would have been better to respond that that principle certainly could have seemed false to probabiliorists. For since according to their own system they contended that the certitude necessary for acting honestly must be sought only from the direct and innermost reasons of the subject matter, and in no way from reflex principles, they rightly and deservedly concluded that he would by no means act prudently who would put after the less verisimilar that which also appeared to him more verisimilar, as though, namely, he preferred as truer that which he himself judged less true. But now he would plainly rave who attributed these so absurd and rotten things to those innumerable and most grave Doctors to whom it was most familiar to use the principle concerning which the discussion is had. Namely, they used that saying by the same reason by which even now in many schools it is most familiar to use as a certain principle that sentence which is proposed in the present thesis, namely that he acts prudently and honestly who follows a probable opinion, even with the more probable left aside. But the principles which gave the reason of the same saying the Doctors sometimes expressed, and sometimes, as obvious and very well known, passed over in silence. Cf. Suarez (On 1.2, tr. 3, disp. 12, sect. 3, no. 3, and sect. 6, no. 8), Laymann (On Conscience, ch. 5, § 2, nos. 7 and 8), Vasquez (On 1.2, q. 62, ch. 5, no. 27, and ch. 9, no. 44), Sylvester (under Opinion, no. 1), Bartholomaeus Medina (On 1.2, q. 19, art. 6, concl. 3), Sanchez (On the Decalogue, book 1, ch. 9, nos. 14 and 16), etc.

QUESTION 5. How must the axiom be understood: IN DOUBT THE CONDITION OF THE POSSESSOR IS BETTER, and what is its use in forming conscience?

I answer 1. This rule, as it has been accustomed to be handed down and admitted by the Doctors in the schools, was never understood and received concerning the state of opinion, but only concerning the state of doubt taken strictly ⁹. But between doubt and opinion this difference always exists, that the former imports every kind of suspension of assent between two contradictories, while the latter imports assent to one or the other part, although not without fear of the opposite. For this reason all those things manifestly fall which Vincentius Bolgeni (Del Possesso, ch. XV), and some others after him, undertook to draw from that axiom for attacking the use of probable opinions as it was received in the schools; since the arguments applied by them rest only on this preposterous understanding of the axiom, as though, namely, the phrase in doubt also comprehended those cases in which a probable opinion gives its vote.

⁹ Thus Lugo (On Justice and Right, disp. 23, no. 110): The Doctors well observe that this proceeds when there is mere negative doubt; for if it were positive doubt, and probable reasons on each side, then the rules would have to be observed which are commonly given concerning probable conscience, and regularly the debtor can embrace the probable judgment.

** As to positive doubt, you manifestly see in this text of Lugo that probable reasons on each side are supposed. The Author himself also says the same thing clearly enough when he names assent to one or the other part not without fear concerning the opposite. Nevertheless VV. (page 37) write that the Author signifies that opinion is solitary, to which no other contradicts. Thence, certain words of St. Alphonsus having been brought forward (Moral System, book 1, no. 71), they contend that suspension of assent is present even when equally probable reasons militate on this side and on that. Response can be made: Suspension of assent concerning the force and weight of reasons which persuade that each sentence is probable is present, I deny; suspension of assent concerning the doubt whether the law then obliges is present, I deny; suspension of assent as to which opinion is truer in itself is present, let it pass. For in the present matter it is of interest to know this one thing, whether force of obliging belongs to the law when a probable opinion militates against it. But this objection of VV. is so much less to the matter, since St. Alphonsus, precisely because opinions equally probable militate on each side, concludes against Patuzzi that the law does not oblige; which likewise is altogether the conclusion which the Author with the Doctors and Cardinal de Lugo here deduces. As to the mind of St. Alphonsus, see also the note to the following no. 80.

I answer 2. Some judged, but the probabiliorists especially contended, that this axiom is valid only in the matter of justice, not however generally in the matter of other virtues, lest, namely, from this principle, which they saw was received by all, force should accrue to the other principle which they attacked, namely, that a doubtful law does not oblige, or that from an uncertain law a certain obligation cannot be induced. Thus Billuart, On Human Acts, dissertation 6, article 2.

Yet that this axiom is valid also in the matter of other virtues is the more common ¹⁰ and altogether to be held sentence; and Suarez deservedly called the opposite opinion (On Censures, disp. 40, sect. 5, no. 15) false and resting on no foundation.

¹⁰ Cf. Lugo, On Justice and Right, disp. 25, no. 110.

And indeed, as the same Suarez observes (On Vow, book 4, ch. 5, no. 7), the laws from which that rule is taken speak generally and without restriction, as in chapter In pari, 65, On the Rules of Law in VI, it is said absolutely that in any cause whatever the right of the possessor is to be preferred ¹¹.

¹¹ Thus Rule of Law 65 in VI: In an equal... cause the condition of the possessor is stronger. So also Law In pari, 128, ff., On the Diverse Rules of Law: In an equal cause the possessor ought to be had as stronger.

Then, Suarez continues (ibid., no. 8), no reason of difference is assigned, nor does it seem able to be assigned. For in the matter of justice that principle is founded either on this, that when there is doubt concerning the foundation of obligation..., there is a certain equality between the obligation of restoring and the power of retaining, and otherwise possession of the thing confers some right, and therefore the right of the possessor prevails ¹²; or it is founded on this, that because of mere doubt things are not to be changed from the ancient state in which they were existing in good faith, because since in doubt there is equality of both, there is no reason why it should oblige to one part rather than to the other; or it is founded on this, that when invincible ignorance intervenes, an excuse from obligation arises, but when doubt intervenes, ignorance of the thing concerning which there is doubt intervenes, and diligence having been applied to expelling the doubt, and the doubt nevertheless persevering, that ignorance becomes inculpable, because it was not in the power of man to drive it away, and therefore it impedes obligation; or it is founded on this, that obligation is burdensome and in its way odious, and therefore must be restricted so that it does not arise unless its foundation is morally certain, especially where other things are not equal. But all these reasons have place outside the matter of justice... Therefore.

¹² To this pertain the things which are had in § Retinendae, 4, Institutes, On Interdicts: But the advantage of possessing is in this, that even if the thing is not his who possesses, if only the plaintiff has not been able to prove that it is his, possession remains in its place: for which reason, when the rights of both are obscure, judgment is usually made against the petitioner.

All these things are declared and at the same time confirmed from the doctrine of St. Thomas, where he treats of the virtues joined to justice. For, as the holy Doctor (2. 2, q. 80, art. 1) and all the Doctors with him observe, virtues of this kind, which are also accustomed to be called potential parts of justice, have this proper to themselves, that partly they agree with justice, partly they fall short of the notion of justice. Moreover, since the notion of justice consists in this, that it renders to another what is owed to him according to equality, other virtues fall short of the notion of justice in this, that either they cannot preserve equality, as religion toward God, or that they render not a legal debt indeed, but only a moral one, without which, namely, honesty cannot be preserved; but they agree with justice in this, that they render to another what is owed to him, of which sort will be obedience toward God or toward the laws, which embraces all necessary virtues. But if there is any force to the axiom concerning which we are treating in the matter of justice, this whole force is exercised in that which is common to justice with other virtues, and which is contained by the general notion of debt, namely by defining whether, in the case of a doubtful debt, something ought to be rendered. Therefore it is manifest that this rule is equally valid in the matter of justice and in the matter of other virtues, insofar as, comprehended under obedience due to God or to the laws, they are reduced to the virtue of justice as its potential parts ¹³.

¹³ You have the use of this principle in Suarez (On 1.2, tr. 3, disp. 12, sect. 5, no. 7): If there is simply doubt about the whole law... that is, whether it has been enacted or not; ... the general rule is that it does not oblige. The reason can be sought from that principle, that in doubt the condition of the possessor is better; but man holds (namely, possesses) his liberty.... But if the law and its sense are clear, there can be doubt whether it obliges in this case; and then the general rule is that if there is no sufficient and probable reason for excusing, then one must obey the law, because it itself or the superior holds his right.

80. • QUESTION 6. If you doubt whether you have already satisfied some obligation, are you still held to satisfy it?

I answer 1. Altogether affirmatively, whenever there is question of doubt properly so called, or of negative doubt, or of practical doubt; the reason is that in such doubt it is never licit to act against the law, as follows from the principles placed above, nos. 39, 41, and 70 ¹⁴.

¹⁴ This also follows from the principle: In doubts the condition of the possessor is better. Hence Lugo (On Penance, disp. 16, no. 59): All agree in this, that he who knows that he has sinned mortally, but doubts whether he has confessed that sin, ought to confess it: for then possession is against the penitent; for the sin and the obligation of confessing are clear, but the confession is not clear. But observe here that the discussion is about negative doubt; for in the same place Lugo denies that there is an obligation of confessing when it is thought even only probably that that sin was said in confession.

I answer 2. But if there is question of positive doubt, or of true and solid probability, it was controverted.

Concina, Collet, and Antoine affirm with certain others; and they take the reason from this principle: A certain obligation is not satisfied by a doubtful fulfillment. For, they say, a law once existing and commanding has the right of exacting rigorous obedience, or an undoubted fulfillment of the obligation. But when only probably, or even more probably, you judge that you have fulfilled the law, you have by no means rigorously satisfied it. Therefore it still urges and presses you, until you have certainly satisfied.

Yet the very common ¹⁵, and altogether reasonable, sentence is that he who probably satisfied some obligation is held to nothing further.

¹⁵ Lugo (On Penance, disp. 16, no. 58): All commonly teach that someone is not held to confess that sin which he probably judges that he has... already confessed; because he now follows a probable judgment, which as in other matters, so also in this one, suffices for fulfilling the precept. And below, no. 59: Nothing is more frequent among Theologians than to excuse from repeating confession one who has confessed... according to some probable sentence concerning its value. See Suarez (On Penance, disp. 22, sect. 9, no. 6), Bonacina (On Penance, disp. 5, q. 5, sect. 2, § 3, diff. 4, nos. 3, 4), the Salmanticenses (On Vow, ch. 1, no. 45), Roncaglia (tr. 8, On the Second Precept, ch. 2, q. 4, resp. 2), etc.

It is proved 1. Since probability is supported by grave and prudent judgment, therefore whoever probably satisfies an obligation does that which by prudent judgment suffices for fulfilling the precept. But equity neither allows that more be exacted than what prudently is believed sufficient for fulfilling the precept, nor is a prudent and equitable legislator rightly considered to will anything more. Therefore.

It is proved 2. Any exaction beyond that which probably suffices for fulfilling the precept has against itself the probability of this prudent judgment. But an exaction having a probable judgment against itself becomes, as to this, an uncertain obligation or law, which, as is clear from the things said above, cannot have force of obliging. Therefore.

It is proved 3. From absurdity. For if you demand likewise certain satisfaction for a certain obligation, not only through a probable or more probable satisfaction, but not even through a most probable satisfaction, will the precept be able to be said to have been fulfilled; for there always remains room for replying that the obligation is certain, but the satisfaction uncertain or less certain. But this leads by a straight way to condemned tutiorism. Hence even Billuart (On the Sacrament of Penance, dissertation 7, article 2, § 4) and others, although they held probabiliorism, nevertheless judged it sufficient if you more probably satisfy the law. Therefore ¹⁶.

¹⁶ Some think that St. Alphonsus at last came to the opposite opinion with Antoine and Concina, because in book 1, no. 28, with them he judges that he who probably judges that he has already satisfied a vow is still held to fulfill the vow, although he himself had previously called the denying sentence probable.

But in reality it is false that St. Alphonsus withdrew from the common doctrine. This is evident from these things which he has in the same book 1, no. 99, at the end: What in doubt whether you have fulfilled the law? In negative doubt you are held to fulfill; otherwise in positive. And again, book 3, no. 290: In doubt concerning custom (namely derogating from laws) the precept possesses, whence dispensation must be sought; otherwise if it is probable that the custom is present. And again, book 3, no. 112, q. III, § Second sentence, he writes: Here we are not occupied with doubt, but with probable opinion.... But when it is probable that... a law has been abolished, then presumption for the law ceases, and liberty possesses.

Therefore St. Alphonsus certainly changed his opinion as to the special question, On Vow, but not as to the general principle. And indeed that resolution as to a vow seems to be taken concerning him who is uncertain whether he has furnished anything for fulfilling the vow or not; not however concerning him who did something, and is uncertain only whether it suffices for fulfilling the promise. For otherwise St. Alphonsus inculcates hundreds and indeed thousands of times that he is safest in conscience who, as to obligations, follows probable judgment, since his whole moral work rests on this principle.

As to the axiom which is objected: A certain obligation is not satisfied by a doubtful fulfillment ¹⁷, response is made that it is true whenever the discussion is about practical or negative doubt, but not if true and solid probability favors liberty.

¹⁷ Others object in other words: A certain debt is not satisfied by an uncertain payment; and if you owe one hundred from a contract, you are not freed from the whole obligation except by certain payment. But Cardinal Lugo responds: First, if that one hundred is owed from a liberal promise, it seems to be satisfied by a probable payment; just as one who owes fasting from a vow, if he fasts by observing the fast according to a probable opinion.... But if they are owed from an onerous contract, as from purchase, exchange, etc., then perhaps it is not satisfied; because equality is not preserved by giving, in exchange for a certain thing, another uncertain thing which by that very fact is worth less; and because the intention of those contracting seems to be that certain money be given to oneself for certain goods: which reasons... do not proceed in all other precepts, in which the obligation is certain of hearing Mass, for example, of fasting, of reciting the Office, etc., and nevertheless a man satisfies if, according to a probable sentence, he fasts, hears Mass, or recites the Office, etc. Thus Lugo (On Penance, disp. 16, nos. 59, 60), who also skillfully says doubtfully about an onerous contract: perhaps he does not satisfy; for if the matter is about contracts which are called of good faith, in which, namely, the judge is given the faculty of arbitrating many things among litigants from equity and the good, now even the equality itself, which must be preserved in an onerous contract, is accustomed to be determined by a prudent, that is, probable judgment.

QUESTION 7. Whether among several probable opinions it is licit to follow now this one, now the opposite?

I answer affirmatively ¹⁸. The reason is that among probable opinions none is given formally safer and more secure than another. For all are equally secure ¹⁹. Besides, if you were held to follow the opinion which appears more probable to you, and could not operate from the probable sentence of others, you would have to be agitated by a thousand scruples, and to vary your work at each hour, since now you adhere to one opinion as more probable, now to the contrary, etc. - Pal. On Conscience, disp. 2, point 2, nos. 2, 3. But see Cases, vol. 1, no. 75.

¹⁸ It is not licit, nevertheless, for the Confessor to use a probable opinion for imposing an obligation, when the opposite also is probable, since from what was said above, no. 78, q. 2, the penitent has the right of following this, and the Confessor is held to absolve him. Nor does it matter whether the penitent knows this. For it would be most unjust so to abuse the ignorance of the penitent, that an obligation be imposed on him which is not imposed by God the legislator, and which besides could fall to the penitent as a snare of perdition.

¹⁹ Beware, nevertheless, lest you so lead the matter to an absurd contradiction, that while you gain some advantage from some opinion, you refuse the inconveniences attached to it under the pretext of the opposite opinion. Thus you would act absurdly if, having used a probable opinion, you entered upon an inheritance coming from a testament which lacks the legal forms; and then, under pretext of the sentence which denies that this testament has force, you refused to pay legacies. For he who assumes the inheritance assumes also the burdens necessarily joined to it.

End of the Treatise on Conscience.