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(α) n. 475. q. 1°. R. 2°. p. 210. col. 2. and q. 2° p. 211. col. 1.

If the mother must not be killed, as St. Thomas teaches,¹ in order that the child may be saved, neither must the child be killed in order that the mother may be saved; and the intention of saving the mother, however much it may be considered principal and predominant, does not prevent the procurement of abortion from being direct, and willed in itself. Nor can those procuring abortion be excused from sin on the ground that they only hasten the death of offspring otherwise certainly about to die; for a direct hastening or anticipation of death, and willed in itself, not I say on account of itself, is true homicide. - For the same reason that is not lawful even on account of conferring Baptism upon offspring which otherwise would not be baptized. And in truth, St. Thomas² says that the mother is not to be killed so that the child may be baptized. But although St. Alphonsus³ says that "it is lawful to baptize with cold water a child soon about to die, if no other can be had, even if it were feared that death would be hastened from this," he permits this only because "such an action does not tend to killing, but to washing," and a just cause is present; but at the same time he warns that "it is never lawful to throw an infant into a river in order to baptize him" (which baptism nevertheless is probably valid), "although he is soon about to die without Baptism; because it is never lawful, for any cause whatever, directly to kill an innocent." Therefore he kills the infant as directly who directly procures abortion as he who throws him into the river.

Notes to preceding text - note sequence 1.

1 3. q. 68. art. 11, ad 3. | 2 Ib. | 3 L. VI. 106.

Nor is it lawful to equate an animated fetus, endowed with its own life, with an unjust aggressor; for one who from the sole course of natural things, for example a man infected with plague, becomes the cause of death to another, cannot be held as an aggressor, either formally or materially unjust. - Nor can he be compared with an innocent who is killed together with an unjust aggressor, because: 1° a dangerous or death-bringing delivery will never rightly be called an unjust aggressor of the mother; 2° it is never lawful to assume the death of an innocent as a means for killing an enemy; but in the case, abortion or the killing of the infant is assumed as a means for freeing the mother from dangerous childbirth. - Finally, from the fact that a mother in shipwreck is not held to sustain a child above the waters with peril of her own life, it would not rightly be concluded that she can provide for her own safety by abortion; for the preservation of another's life by means or positive action, such as sustaining a child above the waters, pertains to the affirmative precept of charity, which does not oblige always nor with grave harm; but the prohibition of abortion pertains to the negative precept of not killing, which never does not oblige. And indeed the mother by abortion not only does not retain, or ceases to retain, the infant within the womb, but rather casts him outside the womb; and in like manner, in the example adduced, although she is not held to sustain the child, she is entirely held, even if she must perish, not to immerse him. Thus rightly Dumas.¹

Notes to preceding text - note sequence 2.

1 P. I. n. 403. 2°. 4°. 9°. 10°.

(β) n. 550. p. 243. col. 2.

Since, beyond my expectation, not a few copies of my work have been sold outside the Federated States and in those regions in which parishes properly so called are had, it has seemed good here to add the following questions concerning the place in which Paschal Communion, by common law, is to be received.

Query 3° Whether the precept of communicating in the parish obliges under grave sin?

Resp. Affirmatively, at least per se. The reason is that the matter seems grave in itself. For to what purpose would there be so many constitutions and decrees of the Supreme Pontiffs for establishing a light obligation? - Thus commonly. - Yet some assert that it is only light if someone once or twice in life should communicate elsewhere, because he does not seem to inflict a grave injury on the pastor, especially if he had communicated several times during the year in the parish. - Tamburini, meth. comm.

Query 4° Whether the precept of communicating in the parish still presses when the Paschal time has elapsed and the precept has not been satisfied?

Resp. Affirmatively, with the common sentence. The reason is that the end of the law always remains to be obtained. Yet in practice here good faith can easily be supposed; and this would be disturbed most imprudently unless fruit is hoped for.

Query 5° Whether he satisfies the precept of the Church who communicates in the cathedral church or from the hand of the Bishop outside the parish?

Resp. Negatively, notwithstanding any custom whatever, even immemorial, as is clear from the decisions of the S. C. C. The reason is that he has not communicated in his own parish. - Thus commonly.¹

Query 6° Who can give the permission by force of which the precept of communicating is satisfied outside the parish?

Resp. 1° The diocesan Bishop and Vicar General; 2° the parish priest himself to parishioners, since the law was made in his favor and otherwise this is clear from custom. Indeed, permission morally certainly presumed is sufficient.² But the parish priest ought not give general permission that any parishioner whatever may communicate outside the parish church. - S. C. C., Sept. 7, 1615.

Query 7° Where can the following satisfy the precept of Paschal Communion: 1) pilgrims and wanderers; 2) soldiers; 3) servants; 4) Regulars and their domestics and boarders; 5) priests?

Resp. to 1). In any church, provided, if it is a question of pilgrims, they are so absent from their own parish that they cannot conveniently approach it.³

Notes to preceding text - note sequence 3.

1 L. VI. 300 sub 4. Sab. | 2 Ib. | 3 Ib. sub 2.

Resp. to 2). Those staying in a station or having domicile in the city, in the parish in which they are staying; otherwise in any church.

Resp. to 3). Servants and all others having quasi-domicile are bound by the same law as inhabitants of the place.

Resp. to 4). If they are exempt, see n. 1195. G). a). But those not exempt must receive Holy Communion either from the hand of the pastor, or, if they are not impeded by enclosure, in the parish church. - Anal.¹

Resp. to 5). If they celebrate, anywhere.²

Query 8° Whether he who has communicated sacrilegiously in the parish is held to communicate again in the parish?

Resp. Negatively, because he has fulfilled the end of the precept as regards the circumstance of place; therefore it suffices that he communicate in any place whatever in order to satisfy the precept of Paschal Communion, which he did not fulfill by sacrilegious Communion. Nor is he held to make Paschal Communion in the parish who in Paschal time has received Sacred Viaticum; for the end of the law has been sufficiently fulfilled.

(γ) n. 552. q. 3. p. 244. col. 2.

To the doubt whether, when either by the Bull of the Crusade or for another cause an indult is granted for the use of melted lard (commonly strutto) by the title of condiment alone, those who are held to fasting can use that condiment also in the evening refection? - The S. Penitentiary, Jan. 16, 1834, by the express oracle of Leo XII, replied ... that those who are held to fasting can lawfully use in the evening refection also the condiments permitted in the Indult, because by force of the Indult they hold the place of oil, provided a restriction has not been placed in the Indult that they may be employed in the one meal.³

(δ) n. 557. q. 2°. p. 246. col. 2.

Most Blessed Father,

"N. sets forth the custom of taking in the morning on days of fast, in a small quantity, coffee or chocolate with a little piece of bread, which has prevailed in many regions, and also in dioceses of the United States of North America, ... but has not yet been introduced into Canada. Therefore, in order that he may be able to reply something certain to those who ask whether it is also lawful in Canada, the said Orator suppliantly begs Your Beatitude that you may graciously deign to declare whether with safe conscience it can be tolerated or permitted in the aforesaid region of Canada that in the morning on days of fast there be taken, in a small quantity, coffee or chocolate with a little piece of bread?" The S. Penitentiary, after maturely weighing the matters set forth, judged that the reply should be given: "Those who follow such a custom are not to be disturbed." Nov. 21, 1843. Nouv. Rev. Théol. T. IV. p. 431.

(ε) n. 891. 1°. p. 357. col. 2.

Someone perhaps will have wondered that I said nothing about the revocability of a donation after its acceptance. The reason why I said nothing is that those causes on account of which Roman Law decrees that even an accepted donation can be revoked (see these, if you wish, in St. Alphonsus⁴) are not acknowledged by English Law. "The English law," says Kent,² "does not indulge in these refinements" of the Roman law, which indeed, if I may say what I think, is to be regretted. Therefore among us, "when the gift is perfect by delivery and acceptance, it is then irrevocable, unless it be prejudicial to creditors, or the donor was under a legal incapacity, or was circumvented by fraud."³ Yet Louisiana does not use English Law. See "Civil Code of Louisiana."⁴

Notes to preceding text - note sequence 4.

1 Ser. 4. col. 2280 sv. | 2 L. VI. 300 sub 1. | 3 Acta, T. I. p. 429. n. 17. | 4 L. IV. 738-740.

(ζ) n. 1138. p. 438. col. 1.

In the Province of San Francisco there are certain parishes properly so called, in which, although they are not ruled by pastors properly so called, the faithful and their pastors or rectors, by force of common law, are bound to one another by the same offices by which parishioners and pastors properly so called are bound. This is clear from the following words of the Fathers of the First Provincial Council of San Francisco, in 1874: "We declare that the Rectors of those parishes which are held as parishes properly so called are held to fulfill all the duties of pastors toward the faithful established within the limits of their churches; but that the faithful have the right to receive spiritual helps from them as from their own Rectors of souls, and are specially held to recur to them for Paschal Communion, Baptism, Viaticum, Extreme Unction, and Matrimony."⁵

Notes to preceding text - note sequence 5.

2 T. II. n. 440. | 3 T. II. n. 440. | 4 Art. 1559-1569. | 5 Conc. Prov. S. Franc. I. n. XVI.

From these things it seems to be concluded that these Rectors, no less than pastors properly so called, are held to offer Mass for the people, and validly and lawfully to hear the Confessions of their parishioners everywhere.

(η) p. LI.

A doubt was proposed by the Bishop of Bayonne, whether the obligation of not mixing fish with flesh-meat on days of Lent touches all who by force of an indult can eat meats, or only those who fast.

On June 23, 1875, in the General Congregation of the Holy Roman and Universal Inquisition, held before the Most Eminent and Most Reverend Lord Cardinals General Inquisitors, when the above-written Doubt had been proposed, and the vote of the Lord Consultors had been had beforehand, the same Most Eminent and Most Reverend Fathers ordered that reply be made: Affirmatively as to the first part, Negatively as to the second part; and let the Decree of March 24, 1841 be given, namely to the Doubt, Whether the law of not mixing permitted and forbidden foods also regards those who are not held to one meal, such as young persons before they have completed their twenty-first year, and others reasonably excused from the same on account of inability or labor; the Most Eminent Fathers decreed: It is not lawful.

(θ) n. 435-440. p. 195-199.

INSTRUCTION ON PUBLIC SCHOOLS TO THE MOST REVEREND BISHOPS IN THE FEDERATED STATES OF NORTH AMERICA.

Extracts.

First of all, there had to fall under deliberation the very plan of educating youth which is proper and peculiar to schools of this kind. But to the S. Congregation this seemed even of itself (1)¹ full of danger, and very adverse to the Catholic cause. For the pupils of such schools, since their own plan excludes every doctrine of religion, will neither learn the rudiments of Faith, nor be instructed in the precepts of the Church, and therefore will lack the knowledge most necessary to man, without which one does not live Christianly. In truth, in schools of this kind young persons are educated already from earliest boyhood and almost from tender years, at which age, as is clear, the seeds of virtue or vice adhere tenaciously. Therefore, if an age so flexible grows up without religion, this is surely a great evil.

Notes to preceding text.

1 The numbers (1), (2), etc. correspond to the numbers of the notes which are found at the foot of this Instruction.

Moreover, in the aforesaid schools, since they are separated from the authority of the Church, teachers from every sect indiscriminately are employed, and otherwise no law has made provision that they not bring ruin upon youth; thus it is free for them to pour errors and the seeds of vices into tender minds. Further, a certain corruption threatens from this also, that in the same schools, or at least in very many of them, adolescents of both sexes are gathered into the same room for hearing lessons, and males are ordered to sit on the same bench next to females. All these things bring it about that youth is wretchedly exposed to harm concerning the Faith, and morals are endangered.

But unless this danger of perversion is rendered remote from being proximate, such schools cannot be frequented with safe conscience. The natural and divine law itself proclaims this. ...

Therefore it is necessary that the Most Reverend Prelates, by whatever help and labor they can, keep the flock committed to them away from every contagion of public schools. But by the consent of all, nothing is so necessary for this as that Catholics everywhere have schools proper to themselves, and that these not be inferior to the public schools. Therefore, with every care provision must be made for Catholic schools, whether to be established where they are lacking, or to be enlarged and more perfectly furnished and prepared, so that in instruction and discipline they equal the public schools. (2.) And in executing so holy and so necessary a design, members from Religious Congregations, whether men or women, will not be employed uselessly, if it has seemed so to the Bishops; and that the expenses necessary for so great a work may be supplied by the faithful the more willingly and abundantly, when a suitable occasion has been offered, whether by pastoral letters, or sermons, or private conversations, it is seriously necessary that they themselves (3) be reminded that they would gravely fail in their office unless with every care and expense they can (4) they provide for Catholic schools. Concerning this, especially to be admonished are all those among Catholics who surpass others in wealth and authority among the people, and who are enrolled in assemblies for passing laws. ...

Moreover the S. Congregation does not ignore that circumstances of affairs sometimes are such that Catholic parents can in conscience commit their offspring to public schools (5). But they will not be able to do this unless they have sufficient cause for acting thus (6); and whether such a sufficient cause is present or not in some particular case will have to be left to the conscience and judgment of the Bishops (7), and according to the matters related then it will generally be present when either no Catholic school is at hand, or the one which is at hand is not sufficiently suitable for instructing adolescents conveniently and congruently to their condition (8).

But in order that public schools may be approached in conscience, the danger of perversion, which by their own plan is more or less always connected with them, must be rendered remote from proximate by suitable remedies and precautions. Therefore it must first be seen whether in the school about whose attendance inquiry is made, the danger of perversion is of such a kind that it cannot be rendered plainly remote, as often as there either are taught or are done certain things contrary to Catholic doctrine or good morals, and which cannot be heard or done without detriment to the soul (9). In truth such a danger, as is clear of itself, must altogether be avoided with any temporal harm whatever, even that of life. Moreover, youth, in order that they may be committed to public schools in conscience, must duly and diligently receive necessary Christian instruction and education, at least outside school time. Therefore pastors and missionaries, mindful of those things which the Council of Baltimore most providently established concerning this matter (10), should diligently devote themselves to catechetical instructions, and chiefly apply themselves in explaining those truths of Faith and morals which are more attacked by unbelievers and heterodox persons; and they should strive to fortify youth exposed to so many dangers, both by frequent use of the Sacraments and by piety toward the Blessed Virgin, and again and again excite them to holding religion firmly. But parents themselves, or those who are in their place, should watch solicitously over their children, and either themselves, or, if they themselves are less suitable, through others, should question them about the lessons heard, review the books handed over to them, and, if they find anything harmful there, should provide antidotes, and should entirely keep and forbid them from familiarity and company with fellow pupils from whom danger to Faith or morals could threaten, or whose morals have been corrupt. But whatever parents neglect to impart this necessary Christian instruction and education to their children; or who allow them to frequent such schools in which the ruin of souls cannot be avoided; or finally who, although a Catholic school is present in the same place, suitable and aptly instructed and prepared, or although they have the faculty of educating their Catholic offspring in another region, nevertheless commit them to public schools without sufficient cause and without the necessary precautions by which the danger of perversion is rendered remote from proximate: if they are contumacious, it is manifest from Catholic moral doctrine that they cannot be absolved in the Sacrament of Penance (11).

Notes to These Extracts.

(1) Therefore public schools are intrinsically or of themselves evil, yet in the sense explained in n. 26 (under 3°) of this Compendium; namely, so that sometimes for a just cause and with the danger of perversion removed, they can be approached, as also the Instruction itself, which wholly rests on this principle, clearly teaches.

(2) Cf. this Compendium n. 440. 3°. b).

(3) Namely the faithful.

(4) Cf. this Compendium n. 440. 3°. c).

(5) Therefore, as a rule, that must be held, that public schools cannot be approached in conscience; but place is given for exception, yet under three conditions, which the Instruction sets forth.

(6) This therefore is one of the three conditions which must be present so that parents can in conscience commit their children to public schools. The second is that the danger can be rendered remote from proximate. The third, that the danger is truly rendered remote from proximate. Cf. note (1) above.

(7) Therefore in doubt about the sufficiency of the cause the Bishop is to be approached. I say: in doubt; for the S. Congregation must not be thought to have wished this, that in all and singular cases the Bishop's judgment concerning the sufficiency of the cause be sought; for a cause judged undoubtedly either sufficient or insufficient does not require the Bishop's judgment.

(8) To this belong Case IV, n. 436, and Case IX, n. 439, set forth in this Compendium.

(9) Here is set forth the second condition which must be present so that public schools can be approached in conscience. See note (6) above. What those things are which cannot be heard without detriment to souls, there is no need to say. But what things cannot be done without the same detriment, you have in Case I, n. 435, of this Compendium.

(10) Cf. n. 440. 3°. d) of this Compendium.

(11) Here you have the three chief cases in which, because one of the three conditions enumerated above in note (6) is lacking, absolution is to be denied to parents.

(ι) n. 370. 4°. p. 168. col. 2.

I add also this resolution of St. Alphonsus (L. IV. 150). "Certain simple persons seem sometimes able to be excused from mortal perjury by reason of lack of consideration, when they use certain oath-formulas, such as: By my soul, may God punish me. For although they know this to be called an oath, nevertheless they do not apprehend that to swear is something grave and is to call God as witness, but they apprehend only some confused notion of evil, not of so great moment. See Bon. loc. cit. Laym. c. 14." Thus Busembaum. St. Alphonsus adds: "Indeed it must be noted that commonly country people do not apprehend the gravity of perjury, when, confessing themselves concerning oaths, they distinguish little or not at all true oaths from false; and I have long since understood this from practice in missions. Therefore for those who have the custom of perjuring in such a way, I judge confessors should rather abstain from instructing such persons concerning the grave sin which truly is in perjury, lest material sins in them, on account of the evil habit they have, become formal, according to the general rule, as Busembaum teaches concerning the Sacrament of Penance with Lugo, Sanchez, and Laymann, etc. See book 6. n. 610. Yet such customary sinners are indeed to be strongly warned that henceforth they cease to swear falsely. Moreover, it is not always expedient to warn a rude penitent of this kind concerning the gravity of perjury, if the warning is foreseen not easily to be profitable."

(κ) p. LXXIII. Note 2 at the bottom of the page, and n. 374. 8°. p. 170. col. 1.

It is useful to add here certain declarations given by Alexander VII, both in the Brief Cum circa, July 20, 1660, and in the Response approved by him of some Cardinals of the S. C. de Propaganda Fide, dated April 8, 1661.

1. In the cited Brief the Pontiff established that the profession of those who, after emitting this oath, were to enter Religion without permission of the Holy See, would be null by the law itself, and that they, notwithstanding profession, could be recalled to their former state by the Congregation de Propaganda Fide (Bullar. S. C. de P. F. T. I. p. 141).

2. In the same Brief the same Pontiff blamed those "who, not understanding the gravity of the office of secular Priests admitted to Apostolic Missions, or what, especially with attention to the circumstances of times and affairs, conduces more to the propagation of the Holy Faith and to the good of the universal Church, still dare to assert that an oath of this kind, in that part in which it prohibits entrance into any Religion, is altogether invalid as impeding a greater good." Ib.

3. To the question (IIIrd): "Whether namely it is of the mind of His Holiness to prohibit Alumni entrance into Religion, even if by the counsel of spiritual Fathers it should be judged most conducive to their salvation": the appointed Cardinals responded: "It has been said that the Brief" (Alex. VII, Cum circa) "does not forbid Alumni from becoming Regulars, but reserves to the judgment of the Apostolic See the weighing of reasons and moments, when it is to be judged fitting, and when not; among which that is certainly most important, namely whether the public good should, in those circumstances, be preferred to the private good of the Alumnus; namely by that reason by which it has been granted to some Orders, that their Religious may not pass even to a stricter one without permission of their own Superiors," Ib. p. 146.

4. To the supplication "for some declaration concerning the perpetual subjection of Alumni to the Holy See, even after, permission having been obtained, they have entered some Religion, because otherwise they will be received with difficulty by Superiors," they responded: "The continuation of the bond of applying themselves to the help of souls, even if with permission of the Apostolic See ... they have entered Religion, is found expressed in the Formula of Oath issued by order of Urban VIII, of holy memory, which from that time has always been furnished by Alumni; nor for that reason have Superiors of Religions abstained from admitting the same, or especially for this reason, that, with one or two excepted, there is almost no Order of Regulars in which they cannot fulfill the office of this kind of helping souls, to which they have devoted themselves; but if Alumni wish to enter some Religion which is in no way vacant for this office, or however much it may have been vacant, or if they are not permitted to exercise in it the offices prescribed in the foundation of the College, or to benefit the Nations to which they devoted themselves, it will be altogether equitable that they be excluded from it." Ib.

(λ) n. 408. 1°. p. 184. col. 1.

It is said: to whom it is harmful to go outside. But from these are to be distinguished those to whom it is harmful to be in church. For there are not lacking those who, although they can go outside without some injury to health, cannot be present in church without the same injury to health. This happens from a twofold cause: from the unhealthy air, namely, which from various causes pervades churches, especially those crowded with many people; and from a physiological condition proper to someone. If one or other of these causes were truly present in a particular case, and from that a probable danger to health truly existed, it would surely excuse from the precept. I say: truly; truly existed; for experience proves more than sufficiently that the danger of hallucination in judging each cause is by no means chimerical. See the excellent work of Dr. Capellmann, Medicina Pastoralis, p. 87 sq., where the matter is illustrated by practical examples.

(μ) n. 409. q. 4°. Resp. to d). p. 185. col. 2.

The words: unless they already go out of the house for other things, are to be restricted to the sole case designated, namely of a custom that women after childbirth approach the church only after some determined time, for example six weeks. For it can happen that within that time they usefully go out of the house for the sake of their health itself, and nevertheless, on account of one or other of the causes just set forth under (λ), are excused from approaching the church. Indeed the above-praised Capellmann, p. 90, says it is advisable that women after childbirth and those recovering from illness, before they approach the church, go out once or twice into the open air.

(ν) n. 553. 3°. p. 244. col. 2.

As regards abstinence from flesh-meat, Capellmann (Med. Past. p. 97) warns that, except those who are truly sick or recovering from a grave infirmity, there are few who are excused from it precisely because they do not receive necessary nourishment from other foods. Eggs, he says, furnish as much nourishment as meats.

(ξ) Before n. 573. p. 250. col. 1.

Exemption or dispensation from abstinence does not of itself include exemption or dispensation from fasting. "Yet the case is excepted in which dispensation to meats is granted on account of infirmity or weakness of strength, as the Doctors commonly say, and as" by Benedict XIV "was declared in the Bull In suprema, where it is said: provided no certain and dangerous reason of affected health intervenes, or otherwise necessarily requires it to be done." H. A. Tr. XII. 9.

(ο) n. 573. 2°. p. 250. col. 2.

Capellmann, Med. Past. p. 92, holds that women in the time of menstruation also are excused from fasting. The same author, ib. p. 98, likewise notes that meats are not permitted to pregnant women who are not weak for this reason, as some think, that they vehemently desire them, but only then when other foods cause insuperable nausea for them; and even in this case he requires the previous counsel of a physician.

(π) n. 600. 3°. p. 261. col. 2.

Thus the common opinion. Yet there are some (among whom is also Lugo, de Just. D. 3. n. 14-16) who contend that their capacity must be derived from civil law alone.

(ρ) n. 768. R. 4°. p. 315. col. 2.

Likewise otherwise, if by his vote he could recall the previous voters from an unjust sentence. But in doubt it ought by no means be presumed that the previous voters will be recalled from an unjust sentence if they culpably carried it; otherwise, if by inculpable error. L. IV. 566. § fin.

(σ) n. 793. p. 324. col. 1.

I said: other things being equal. St. Alphonsus explains this in these words (L. IV. 598. § Secunda sententia, at the end of the §): "Yet Lugo himself, n. 188, and Croix, n. 373, with Illsung and Haunold, rightly warn that the damage of the creditor and of the debtor must be weighed comparatively to the subject: for it can happen that damage of ten coins with respect to a poor debtor is far greater than damage of one hundred with respect to a wealthy creditor; and so conversely."

(τ) n. 807. p. 329. col. 2.

Crolly, de Juris alieni violatione n. 1269, explains the matter very well by this argument of common sense: "If ... Caius should say to Julius: Do you think that it is therefore not lawful for me to kill Marcus, who has violated my daughter, because he owes you money, Julius can reply" (and this response of common sense will indeed be consonant with those principles of theology on which St. Alphonsus relies): "I do not say to you, that it is therefore not lawful for you to kill Marcus because he owes me money, but that it is not lawful to do it in such a way that you prevent me from obtaining my just debt" (credit?).

(υ) n. 828. 3°. p. 337. col. 2.

"The agreement is either under seal or not under seal. If under seal, it is denominated a specialty, and if not under seal, an agreement by parol; and the latter includes equally verbal and written contracts not under seal." Kent, T. II. n. 450.

(φ) n. 828. 4°. p. 337. col. 2.

"These" contracts "are divided by the civilians into four species. 1. Do, ut des: as when I give money or goods, on a contract that I shall be repaid in money or goods for them again. Of this kind are all loans of money upon bond, or promise of repayment; and all sales of goods, in which there is either an express contract to pay so much for them, or else the law implies a contract to so much as they are worth. 2. The second species is, facio ut facias: as when I agree with a man to do his work for him, if he will do mine for me; or if two persons agree to marry together, or to do any positive acts on both sides. Or it may be, to forbear on one side on consideration of something done on the other, as that in consideration A, the tenant, will repair his house, B, the landlord, will not sue him for waste. Or it may be for mutual forbearance on both sides; as that in consideration that A will not trade to Lisbon, B will not trade to Marseilles; so as to avoid interfering with each other. 3. The third species of consideration is, facio ut des: when a man agrees to perform anything for a price, either specifically mentioned, or left to the determination of the law to set a value to it. ... 4. The fourth species is, do ut facias: which is the direct counterpart of the preceding. As when I agree with a servant to give him such wages upon his performing such work: which we see is nothing else but the last species inverted; for servus facit, ut herus det, and herus dat, ut servus faciat." Blackstone's Comm. T. II. n. 445.

(χ) n. 854. Resp. 1°. p. 345. col. 1.

"If the contract be entered into by means of violence offered to the will, or under the influence of undue constraint, the party may avoid it by the plea of duress." Kent's Comm. T. II. n. 453. "If a person be under an arrest for improper purposes without a just cause, or where there is an arrest for a just cause, but without lawful authority, he may be considered as under duress." Ib.

(ψ) n. 874. p. 352. col. 2.

"A valuable consideration is one that is either a benefit to the party promising or some trouble or prejudice to the party to whom the promise is made. Any damage, or suspension, or forbearance of a right, will be sufficient to sustain a promise." Kent, T. II. n. 465. "The rule, that a consideration is necessary to the validity of a contract, applies to all contracts and agreements not under seal." Ib. n. 464.

(ω) n. 892. p. 358. col. 1.

"Though an estate be conveyed, it passes to the grantee subject to the condition, and laches are chargeable upon the grantee, even though such grantee, or his assignee, be an infant or feme covert, for non-performance of a condition annexed to the estate." Kent's Comm. T. IV. n. 126.

(A) n. 930. Resp. to 2nd under 2°. p. 372. col. 1.

Worthy of note is the Response which the S. Penitentiary gave on Jan. 21, 1873, to the Bishop of Como, who asked in these words:

"Most Eminent and Most Reverend Lord:

"Titius, in the year 1860, when this government¹ had not yet given compulsory use to paper money in the Lombard Province, lent to Sempronius at interest by note one hundred and twenty gold coins, commonly called marenghi, with these conditions given and accepted.

"I. The principal will have to be restored in the same species, any other thing substituted for metallic money being excluded, and this even in the case in which some civil law might permit this substitution, namely of paper money, for extinguishing debts of whatever kind, the debtor from now renouncing the privilege which the law perhaps might grant to him.

"II. If it should happen that a law of this kind be passed, and from it the creditor be forced to accept such paper money as payment, the debtor obliges himself to restore the aforesaid sum by handing over paper money, not according to its nominal or legal value, but according to its commutative value, or by handing over such a sum of paper money that from it, by exchange, the aforesaid 120 gold coins can be had; and likewise the owed interest in metallic money.

"With these agreements, Sempronius gave interest according to their tenor up to this day; but now, when compelled by Titius to render the said principal, he refuses to stand by the agreements; namely, he neither wishes to pay gold money, nor to add upon the paper money as much as presently is required so that it may be equated with gold according to the difference, commonly aggio; and he brings forward this reason, that the civil law, by decreeing that paper money is to be accepted by all in place of metallic, has besides declared wholly void the preceding agreement concerning restitution of the capital sum and payment of interest to be made in metallic coins and not in paper coins.

"Therefore for the direction of souls it is asked:

"I. Whether the simple³ condition attached in the note concerning restitution to be made not otherwise than in metallic money loses its force even in the forum of conscience through a subsequent civil law invalidating it? And, if affirmatively:

Notes to n. 4 - note sequence 1.

1 The Italian one, namely. | 2 I report the conditions only substantially, translated from Italian into Latin. 3 That is, with no agreement added by which the debtor renounces the benefit of a law perhaps to be passed.

"II. Whether Sempronius, in this case, that is, by special conditions as stipulated above,¹ can safely conform himself even in the internal forum to this civil law so very useful to himself, when this law, even in these circumstances, would have favored him in the external forum?

"May Your Eminence deign, etc.

"PETER, Bishop of Como.

"Como, on the fourth day before the Kalends of January 1873."

"The Sacred Penitentiary, having maturely considered the proposed doubts, replies:

"To I. Regularly² affirmatively, unless peculiar circumstances obstruct, concerning which recourse must be had in particular cases, after they have been diligently set forth.

Notes to n. 4 - note sequence 2.

1 By which he renounced the benefit of a law perhaps to be passed. | 2 i.e., unless the law, for example, is unjust.

"To II. With attention to the quality of the agreements, and also with attention to the tenor of the law of which there is question in the case, negatively.

"A. PELLEGRINI, Regent of the S. P.

"L. CAN. PEIRANO, Secretary of the S. P.

"Given at Rome in the S. Penitentiary, Jan. 21, 1873."

(B) n. 1159. 2°. p. 447. col. 1.

The Congregation on the State of Regulars, on Feb. 7, 1862, declared that the conventual Chapter must indeed be heard for the instruction of the mind of the Superiors; but that the Superior General, or his subdelegate, is by no means bound to stand by the resolution of the same Chapter. Bizzarri, Collect. p. 912.

(Γ) n. 1159. II. p. 447. col. 1.

"Profession is distinguished as twofold; one express, the other tacit. The former is that which is expressed by word, writing, or another sign sufficiently declaring consent. But the latter is that which is made neither by voice, nor by writing, nor by another sign, but is judged to be induced through one or more acts proper to those professed. - As regards religious, tacit profession has been abrogated (S. C. on the State of Regulars, June 12, 1858, n. XL. Cf. Bizzarri, Collect. p. 907). In monasteries of Nuns there can still be place for it, either by wearing the habit of the professed for the time required by law, c. 1, 3, de Regul. in 6°; and Clem. 2, de Regul.; or by involving oneself in acts proper to the professed. But that tacit profession be valid, besides age and novitiate, it is required 1° that the habit was taken, or the act exercised, with the consent of the Superior who can admit to Religion, or at least that it was done with him knowing and not contradicting. 2° That the novice know that tacit profession is induced through such an act or wearing of the habit. 3° That the act or wearing of the habit be done with the mind of professing. 4° That the act or wearing of the habit be done freely and not by compulsion." Van der Velden-Piat, T. I. n. 241 (4).

(Δ) n. 1163. R. to 2nd. p. 448. col. 2.

St. Alphonsus adds, L. V. 18: "Yet Elbel, t. 2. p. 632. n. 644, and Lugo, n. 128, with Suarez and Sanchez, warn that after such acceptance a religious is held, if he conveniently can, to manifest the matter to the Prelate, so that thereafter he may lawfully retain it. The same" (namely, that presumed permission suffices) "Elbel says, p. 631. n. 640, if the Superior is accustomed easily to grant permission for certain things, especially things to eat and drink; but in well-ordered monasteries such permissions are not usually granted everywhere, as Lessius says, l. c., except for very small things and those frequently occurring."

(E) n. 1203. IV. p. 466. col. 2.

Under the name of Mendicants are comprehended those to whom by rule or constitutions approved by the Apostolic See revenues and possessions in common are forbidden, although they may have these by dispensation of the Pontiff, just as today in Trent, sess. 25 de Regula, cap. 3, dispensation is given to all Mendicants except the Friars Minor of the Observance and Capuchins. Therefore to the Mendicant Orders belong the four more ancient Orders of St. Dominic, of the Friars Minor, of the Hermits of St. Augustine, and of the Carmelites, of whom mention is made in cap. unic. § sane, de Relig. domibus in 6; and besides these the Orders of the Servants of Mary, of the Minims of St. Francis of Paola, of St. Jerome, as St. Pius V declared in Const. 35 Romanus Pontifex, and 48 Apostolicae Sedis; and the Society of Jesus, from the Bull Dum indefessa (Acta, T. I. p. 727).

(Z) p. LXXII. Fac. 27.

To the doubt proposed by the Bishops of the Province of San Francisco in California, "whether by force of the general faculty made to Bishops under n. 27, namely: of dispensing, when it shall seem expedient, concerning the eating of meats, eggs, and lacticinia in the time of fasts and of Lent, all the faithful of the diocese can be dispensed by a general decree concerning abstinence from meats on some days of Lent": the S. Inquisition, Feria IV, Sept. 15, 1880, replied: "Negatively."

(H) p. LXXII. Note 2 at the bottom of the page.

In the year 1750 the S. C. of the Holy Office wrote these things in rescript to the Procurator General of the S. C. de Propaganda Fide dwelling at Macao: ... "The principal hinge of your doubts rests upon consideration of the faculties which are contained in the first formula, under n. 28 of the aforesaid formula. Since you have seen it noted that the aforesaid faculties cannot be communicated by Apostolic Vicars except to suitable priests who shall labor in their dioceses, for this reason, since you dwell at Macao, where you discharge the office of Procurator for this S. C. de Propaganda Fide, not undeservedly do you suspect that you could indeed have been appointed and declared Vicar General of the province of Houkouang by the Reverend Father Lord of Ecrin, Apostolic Vicar of the same province; but that he could not communicate to you apostolic faculties for the diocese of Houkouang, from which, since you are far absent otherwise, for that reason you do not labor in it. ..." Collect. p. 24. n. 35.

(Θ) n. 116. p. 56. col. 1.

A fiction of law "is a disposition of law contrary to truth in a possible matter and from a just cause." Reiffenstuel, L. 1. T. II. n. 176. The words: in a possible matter, import possibility not only in fact, but also in law; which others express in this manner: that is, for inducing some juridical effect not repugnant to natural equity. Id. ib.

(I) n. 117. p. 56. col. 2.

Therefore it can be asked whether Titius, a Bostonian, contracting marriage at Philadelphia with Bertha before a magistrate, would incur excommunication? For in each diocese those contracting thus are punished with excommunication. According indeed to the sentence of St. Alphonsus he would incur it. But whether he holds his own sentence as certain can be doubted somewhat; for he states it with the addition: "although Sanchez with Diana contradicts this." L. I. 156 § fin. It can be added that censure is not incurred unless the sin was certain. - Yet take care not to confuse this question with that concerning the faculty of a simple confessor as regards absolution from a sin reserved to the Bishop with excommunication, in the case in which, because of ignorance of the censure, the excommunication had not been contracted: concerning this question see n. 1401. q. 2°. R. 2°.

(K) n. 146. Query. p. 65. col. 2.

You ask why in the use of epikeia, outside the case in which observance of the law would become harmful, the Superior must be approached, if he can easily be approached, but not in interpreting law? I respond, because, as I hand down in n. 140, there is place for interpretation where the words of the law are more obscure, but for epikeia where they are clear. Therefore, positing the case in which the more obscure words of the law admit with equal probability both the stricter and the milder signification, without consulting the Superior you will apply the principles of Probabilism; but if it were not lawful to apply these in this way, it would follow that Probabilism could not be reduced to practice, while the Superior can easily be asked about the sense of the more obscure words of the law. - But the matter stands otherwise in epikeia, since from what is equitable and good it conjectures the mind of the legislator contrary to his clear words. See St. Thomas, 1. 2. q. 96. a. 6 ad 2.

(Λ) n. 151. 4°. p. 67. col. 2.

To the doubt of the Vicar Apostolic of Western Tonkin, whether after the time for which faculties (of the formulas) are granted has elapsed, they still avail in the case in which, without his fault, their prorogation has been delayed, the S. C. de Propaganda Fide, Jan. 16, 1797, replied that they avail until the obtaining of a new prorogation. Collect. p. 25. n. 40. - The same Congregation, April 2, 1740, with the Most Holy approving, declared that the time of the same faculties is to be computed from the day of reception, not of concession. Ib. n. 39.

(M) n. 151. 6°. p. 68. col. 2.

Citation (verbal, namely) is an act proceeding from the command of the judge, by whose order someone is called into judgment, by words or letters, for the sake of trying a right.

Joinder of issue is a legitimate act by which the plaintiff before the judge proposes his petition, but the defendant denies that he will yield to the petition, taking upon himself the judgment and the lawsuit.

(N) n. 170. at the end, p. 76. col. 2.

Yet De Angelis judges that the force of authentic collection must be denied to the Extravagants, whether of John XXII or the Common ones, Prel. Jur. Can. T. I. P. I. p. 14. Nevertheless he affirms that they have universal force of obliging, since all their Chapters have it; which, however, others deny. See Zeitschrift für kath. Theol., Innsbruck, 1880. p. 526.

(Ξ) n. 172. 3°. p. 77. col. 2.

On Sept. 19, 1671, by mandate of the Most Holy (Clement X), it was enjoined that whenever resolutions of doubts made by the S. C. of the Holy Office and Propaganda Fide are sent to missionaries and the other ministers of the S. C. de Propaganda Fide, they are not sent as definitions, but as simple instructions by which in occurring doubts they can and must be governed. - Collect. Const. etc. ad usum Soc. Miss. ad exteros, p. 3. n. 5.

(O) n. 174. p. 79. col. 2.

It is useful to add also certain other formulas which the Holy Congregations use.

A cause is said to be argued while preserving the order of law, when the parties appoint procurators, and the cause is discussed by chosen advocates. Otherwise it is said to be treated economically.

By summary of prayers: this indicates that it is not a question of some doubt from the graver ones or of a contentious cause (for if it is a question of these, the formula is used: let it be placed on the sheet); but only of prayers exhibited to the Holy See, or of the manner in which the prayers deserve to be heard.

Let him consult approved authors. There are not lacking those who always would wish in their doubts an authentic response from authority; as if the laws of moral prudence were lacking, or these did not suffice for acting rightly. To these such a response is usually given.

(Π) n. 349. q. 4°. p. 158. col. 1.

It is asked whether it is sacrilege unjustly to retain legacies left to the Church for its service? Lessius affirms, L. II. c. 16. n. 30. But Tamburini and others deny, because until the said goods are possessed by the Church, they are not sacred. St. Alphonsus, L. IV. 42. q. 3.

It is likewise asked whether it is sacrilege not to pay tithes? Some affirm; others deny. Yet they say it is a graver sin of irreligiosity, because the payment of tithes is ordered to the recognition of divine dominion. Ib. q. 4.

(P) n. 391. II. p. 177. col. 2.

That the sentence of the Holy Doctor is not to be contemned is clear from the Response which the S. C. de Propaganda Fide gave on May 3, 1828, to the Vicar Apostolic of Eastern Tonkin: "But concerning the doubt which you proposed, asking whether the faculty of commuting and dispensing simple vows is extended also to simple vows confirmed by the bond of an oath, it was consulted, and by Decree it was established that supplication should be made to the Most Holy for sanation, insofar as there is need, as regards the past, and for caution for a faculty in the future also as regards sworn vows. Which likewise was done, as you will know from the document of the Apostolic Indult already mentioned." Collect. Juris miss. p. 630. n. 1183.

(Σ) n. 434. q. 8. p. 194. col. 2.

"In mixed marriages the Catholic party near death sometimes not without reason fears that the faith of the children will be endangered, if they are committed to the care and guardianship of heretics" (Marres, De justitia, L. I. C. 3. n. 41). By what juridical means this danger can be forestalled will have to be discerned from the laws of each State.

(T) n. 468. q. 19. p. 208. col. 2.

The obligation of abstaining from the killing of a materially unjust aggressor, who is known certainly to be in mortal sin, supposes that the person attacked prudently judges himself to be in the state of grace. Therefore if either this prudent judgment or that certain knowledge is lacking (and both will rarely be present together), the one attacked cannot be deprived by this uncertain obligation of his certain right of defending himself. Nor is he deprived of it if there shines no prudent hope that the aggressor, if spared, will obtain salvation. Cf. Marres, p. 368. n. 238 under 2°. Haine, T. I. p. 280. q. 132.

(Υ) n. 469. q. 4°. p. 209. col. 1.

What in regions where the civil law permits the killing of an unjust aggressor only for legitimate defense of oneself or of others? There are those who pronounce a law of this kind just and therefore to be observed (Marres, p. 369. n. 240 under II). Yet even those who contend for the justice of such a law admit that it is lawful to protect one's goods even by force and arms, and if a thief either of his own accord or induced by this defense uses force also, and now no longer attacks the goods but the very body of the owner, it is lawful, as is clear from the things set forth in n. 469. q. 3°, to provide for one's own safety even with the death of the thief; likewise that it is lawful in the nighttime to slay by a weapon, even sent from a distance, thieves violently breaking doors, since from aggression of this kind not only loss of goods but also danger of death is to be feared.

(Φ) n. 476. 1°. p. 211. col. 1.

"In doubt whether the fetus lives, it must be presumed by the physician to live, no otherwise than any sick person, concerning whose death it is not certainly clear." Marres, p. 387. n. 274.

(X) n. 480. q. 2° p. 213. col. 1.

"It easily happens that a defensive war is just, even if cause has been given for war: for if reparation of the injury has been offered" and no response to it is given by the enemy, or "excessive vengeance is sought, the citizens justly defend the fatherland." Kenrick, Tr. V. 26.

(Ψ) n. 480. q. 3°. R. 1°. p. 213. col. 1.

"While civil war is raging, he who obtains mastery over affairs judges citizens resisting him to be rebels, and kills them when captured by hanging, or by another infamous death. As often as it is a question of seditious persons, namely of those who from a slight cause or from the sole lust of ruling or growing rich disturb the republic, punishment is just; but if it happens that a great part of the people contends with arms, even without a just cause, fear can be struck into the rest by the punishment of a few, without raging against the multitude. If a people oppressed by tyranny seeks its rights by arms, the prince ought to satisfy it by conceding what is equitable; for this reason, if he cannot placate it, he will be able to punish after the manner of rebels those who labor to overturn public order and government." Kenrick, Tr. V. n. 28.

(Ω) n. 521. p. 232. col. 2.

"To this sentence a new strength is added today from the fact that through railways the distance of places almost vanishes, and the things which ancient theologians taught concerning inhabitants of a very neighboring place, namely that a matter can be manifested without the fault of detraction, now have force for the inhabitants of an entire region." Marres, p. 416. n. 330.

I add from St. Alphonsus, L. IV. 974: "Fr. Concina in this question distinguishes, and says that when a delict is public by notoriety of fact, that is, if it has been perpetrated publicly, then it can be manifested in every place; but when it was public only by notoriety of fame, with respect to its manifestation he thus concludes: All must be cautious, because this public fame is easily feigned."

(a) n. 524. p. 233. col. 1.

"Yet he seems to be excused from mortal sin who privately fishes out the crime of another without any intention of further publishing it, because then ... no grave harm is brought upon the other's reputation; or who, having suspected something light, contrary to opinion induces another to grave detraction, since that is done outside his intention." Marres, p. 417. n. 332, from Sporer, Tr. V. C. IV. n. 105.

(b) n. 527. p. 234. col. 2.

"That someone sin mortally by detraction, these conditions are required:

"1°. That someone either truly bring grave harm upon another's reputation, or believe that he is bringing it;

"2°. That he not have, or not invincibly believe that he has, a legitimate reason for injuring another's reputation;

"3°. That he attend at least in confused fashion to the mortal malice of the action, or to the grave harm to be inflicted on another." Marres, p. 416. n. 332.

(c) n. 532. q. 4°. p. 236. col. 2.

From the things said in this place concerning compensation, and at the same time from the things handed down in n. 531 under 6° concerning presumed condonation of the obligation of restoring reputation, some (see Marres, p. 431. n. 362) adhere to Sporer (Tr. V. C. IV. n. 116), who writes: "I think that commonly men, especially common people, are excused among themselves from restitution of reputation; for since generally they know that others everywhere detract, and that restitution is never made, nor do they themselves demand restitution, they can be judged to wish mutually to remit to one another the debt of restoring; or certainly to wish to use mutual compensation in not restoring."

(d) n. 532. q. 5°. p. 236. col. 2.

They ask whether it is lawful for one to compensate himself by money in secret for reputation which another either cannot or does not wish to restore. St. Alphonsus denies against others. See L. I. 35 in the note of Fr. Heilig to this number.

(e) n. 568. q. 5°. p. 249. col. 1.

The S. Penitentiary, under June 14, 1880, declared that meats seasoned with fish sauce are not comprehended under the forbidden mixing of fish and flesh-meat.

(f) n. 569. p. 249. col. 1.

We transcribe here the response given on Jan. 24, 1881, to a certain Bishop by the Most Eminent Prefect of the S. Congregation de Propaganda Fide, and graciously transmitted to me. "I have received your letters ... by which you sought an Indult concerning the eating of meats outside the one meal on days of fast, in favor of those who, by daytime labor in procuring livelihood for themselves, could with difficulty obtain other food. As regards this, you know that an Apostolic Indult is by no means necessary; for according to the doctrine commonly received from approved authors, those who are devoted to heavy labors, since they are by no means held to fast, can eat meats on all the days on which dispensation concerning the eating of meats was granted by the Apostolic See, whenever they eat. Although the response does not speak about those who by reason of age or affected health are not held to fast, nevertheless it must also be applied to these, since the reason of the resolution has force for them also: 'since they are by no means held to fast.'" This is clear from the response of the S. Penitentiary, Acta, T. 14. p. 568.

(g) n. 723. p. 300. col. 2.

Where the civil law attributes to a possessor of good faith all fruits perceived up to the day on which the action of eviction (n. 988) was begun against him, in the forum of conscience he seems able to use the favor of this law no less than the benefit of prescription. Natural fruits are judged perceived when they have been separated from the fruitful thing, for example from branches or roots; civil fruits are judged to be received by days, so that they fall to the possessor of good faith according to the proportion of time through which he possessed another's thing in good faith. Marres, p. 252. n. 30. 31.

(h) n. 731 R. 1°. and R. 3°. p. 302. col. 2.

If anywhere the civil law establishes that a thing bought in good faith in a forum or public market, or from him who is accustomed to sell things of this kind ("a sale made in market overt"), must be restored to the owner only after the price has been paid, the owner who refuses to pay the price cannot recover the thing and is deprived of the right mentioned under Resp. 1°, and the buyer is not held by the obligation of which there is discussion under Resp. 3°.

(i) n. 734. p. 303. col. 2.

Where the civil law does not free a thief from the civil obligation in the cases in which we have said in this number that he is freed by natural law, that is, if the civil law obliges him, in whatever way finally the thing perished in his possession, this burden of restitution will have the character of a penalty, which is to be undergone from obedience only after the sentence of a judge. Marres, p. 255. n. 34.

(j) n. 738. p. 305. col. 1.

"When restitution of another's thing must be imposed, the confessor should not compute with the penitent too anxiously the sometimes very uncertain price both of the thing itself and of its fruits, and the expenses to be deducted, either perhaps spent or perhaps incurred for labor and industry; nor should he scrupulously estimate damage of any kind perhaps brought upon the owner; but, after looking at the circumstances, in the name of the owner whose affair he usefully manages, he should compose the matter from what is equitable and good with the unjust possessor: 1° lest by asking too much and obtaining nothing, he harm rather than favor the owner; 2° because he can reasonably presume that the owner, so that he may recover his thing more certainly, does not demand the last farthing in the restitution owed to him; 3° because unjust possessors are not usually foreseeing every damage inflicted, not even in confused fashion.

"Prudence requires that the confessor also attend to the good faith and mind of the penitent, more or less ready to make due restitution; he should also note, as de Lugo warns (D. 17. n. 53), that it can happen that an unjust possessor who was of bad faith by reason of the thing has nevertheless perceived the fruits in good faith and either consumed or destroyed them." Marres, p. 257. n. 39.

(k) n. 747. p. 307. col. 2.

"He who has suffered damage by the juridical fault of another can with safe conscience ask for its repair, even after imploring the sentence of a judge, although he knows certainly that the other acted without theological fault, because anyone can lawfully use a faculty granted to him by a just law." Marres, p. 267. n. 59.

(l) n. 769. q. 3°. p. 315. col. 2.

Hence, supposing theological fault and efficacious influence, he is liable to restitution who abstains from giving a vote when he ought to give it from office, by which he is to protect the public or private good, for example a judge in a tribunal, members of a college which must provide for the good of the Republic, State, County, Municipality (members of Congress, of Legislatures, County commissioners, Members of city councils), or also members of a college to which the private affairs of others are to be managed, as trustees of a moral body, society, etc.; because by taking up that office they have obligated themselves by a tacit contract, and therefore from strict justice, to manage the affairs of others and forestall the harm of others.

The right of electing magistrates, where it has been granted, as among us, is an Office and not only a privilege; for society has the right that only worthy magistrates be set over it, and the office of appointing these has been entrusted to citizens by legitimate authority. Therefore those who abstain from giving a vote can sin, yet not against commutative justice, but against legal justice, and accidentally against religion, in the case in which by not excluding an unworthy man they harm it. But that they sin in fact, it is required 1° that a worthy man whom they may elect can be found; 2° that they foresee that by abstaining they effectively promote the election of an unworthy man; 3° that they are not excused from giving a vote by a sufficient reason, for example by notable harm threatening them from it. Marres, p. 295. n. 117. 118; 4° that, as more often happens, they do not invincibly ignore this obligation of theirs, for example holding their right only as a privilege.

(m) n. 928. p. 371. col. 1.

The dominion of an individual thing which is received by mutuum is transferred to the borrower to this extent, that that very individual thing is no longer the lender's. But the lender, by force of the contract of mutuum, reserves for himself a personal action against the borrower himself for a thing the same in species and goodness. But since this action itself, as an incorporeal thing (n. 593), is the object of dominion, it follows that this transfer of dominion in mutuum is not to be accepted in that exclusive sense in which, for example, it is accepted in donation. Pruner, Mor. Th. p. 608.

(n) n. 932. II. p. 372. col. 2.

Oppressive usury, even with a title otherwise just, toward the poor, such in fact and in hope, injures not only charity but also justice. The reason is that, although a mutuum is owed to them from charity alone, nevertheless oppressive exaction cannot be the object of a valid contract. Pruner, Mor. Th. p. 607. 1.

(o) n. 1017. p. 402. col. 2.

To these our and the English jurists add lease of custody, which differs from the contract of deposit only to this extent, that the latter is gratuitous, the former onerous; lease of work for carrying goods, which can be referred to lease of work (this number under 4°); and lease of work to be made, concerning which we treat in n. 1023 in the Note. Kent treats of the dispositions of our law concerning various species of lease, Lect. XL. LII. LIII.

(p) n. 1019. p. 403. col. 1.

The necessary expenses of repairing a leased thing, a building, are called in English "substantial repairs," which "include repairs to the main walls, roofs, timbers, etc."; they are distinguished from repairs which are called moderate, in English ordinary repairs, for instance, "the common reparations to windows, shutters, doors, etc." (Smith, n. 157). Whether the lessor is held to moderate expenses, or rather the lessee, in defect of a special agreement, must be determined from particular laws or the custom of places.

(q) n. 1072. q. 3°. p. 418. col. 2.

"At common law an appellate court takes cognizance characteristically only of matters of law. Matters of fact in that system can be revised only upon a new trial. ... The review upon points of law is had, at common law, upon a writ of error." The Amer. Cyclop. V. Appeal.

(r) n. 1098. q. 10°. R. to 2nd. p. 426. col. 2.

The S. C. of Rites, Aug. 4, 1877 (see Acta, T. XIII. p. 429. col. 2), in one case of the Order of Premonstratensians, to the doubt whether Premonstratensians absent from Choir are held under some sin to the private recitation of the Office of the Dead on Nov. 2 and of the Litanies on the day of St. Mark and the triduum of Rogations, replied: "Affirmatively, that is, they are held, as all are held who have the burden of reciting the Canonical Hours."

(s) n. 1150. p. 444. col. 2.

Among the Doctors it is controverted whether a special vocation, distinct namely from that general one by which Christ the Lord commends the evangelical counsels, is necessary for the religious state. Yet even those who deny the necessity of a special vocation universally admit these things: 1. There are those who by divine or ecclesiastical law are impeded (n. 1157) from taking up the religious state. 2. They sin who, led by an undue end, embrace this state; likewise those who know that there are lacking to them, with or without their own fault, those conditions of soul or body without which they either will not be able to observe, or in fact will not observe, the evangelical counsels or the rules of the special Religion which they are going to profess.

(t) n. 1184. p. 454. col. 2.

A regular Bishop is held to retain the habit of his Religion as to color, not as to form. Except Canons Regular of St. Augustine, regular clerics, and universally those who have emitted only simple vows. Ferraris, V. Episcopus, art. VII. n. 62. Th. C. T. III. 65.

(u) n. 1189. 5°. p. 458. col. 2.

The periodical Revue des Sciences ecclésiastiques, T. 40. p. 379, limits the power of a Superioress of depriving some nun of Communion, from the practice, as they say, of the City, to the sole case in which some nun, after her last Confession, had admitted a fault which the sisters would reasonably judge scandalous; and they contend that the prohibition ceases after the nun has confessed again. They teach besides, ib., from the declaration of the S. C. C. of April 14, 1725, that determining the greater or lesser frequency of Communion is left to the judgment of the ordinary confessor alone, not of the extraordinary confessor.

(v) n. 1189. 6°. p. 458. col. 2.

Rules which impose upon nuns that they render an account of conscience to Superioresses can scarcely be held among preceptive ones today; for the matter has given occasion to such abuses that the S. C. of Bishops and Regulars constantly expunges from articles of rules submitted to its approval those imposing this burden upon nuns.

(x) n. 1194. I. p. 460. col. 2.

In the Constitution Romanos Pontifices, Leo XIII, May 8, 1881 (Acta, T. XIII. p. 481 sq.), it is read: "By common law it has been constituted that houses which do not contain at least six religious members must be altogether in the power of Bishops." Cf. Bizzarri, Collect. p. 396. Minorum Conventual. Yet Regulars dwelling in residences of missions, such as universally are those which are had in the Federated States, however few they may be, are not subject to Bishops, "except in cases expressly named by law, and generally in those things which concern the care of souls and the administration of the Sacraments." The same Const. - Monasteries of men which are deprived of regular connection with a Province, and are not subject to General Chapters, if they have neglected to do those things which according to the decree of the Council of Trent, Sess. 25 de Reg., c. 8, must be furnished by them, are subject to the Bishops in whose dioceses they are situated, as delegates of the Apostolic See. Trent, ib.

Chapels and altars of laymen are called those which are erected not by ecclesiastical authority, but from lay funds or revenues, although the funds had been accepted by permission of ecclesiastical authority, and clerics were named to them by the same authority. Craisson, Man. n. 5378. Van de Burgt treats at length of these, De eccles. n. 298 sq.

Lay confraternities erected in the churches of Regulars are withdrawn from the visitation of the Ordinary only as regards the chapel, altar, and furnishings of the confraternity. Yet if "the burden of maintaining the altar and its worship lies upon the confraternity," the Bishop's visitation is not excluded "concerning those things which regard the maintenance itself, the worship, and the ornaments of the altar or chapel, the burdens of Masses and of divine offices to be celebrated there, and concerning all those things which have a relation to the obligation of the same confreres." S. C. C. in Nucer. Pagan., June 23, 1719. See Luc. Ferraris, V. Confraternitas, art. III.

(y) n. 1193. F). p. 462. col. 1.

"Yet as regards the forum of goods which were bestowed upon the mission or Regulars in view of the mission, Bishops have the right to exact an account from the same regular missionaries, equally as from pastors of the secular clergy." Const. Romanos Pontifices, May 8, 1881.

(z) n. 1196. 9°. p. 463. col. 1.

Hence in another church also and among Regulars, it will be lawful to sing a Requiem Mass for the deceased (if the Rubrics permit it; otherwise of the day), with relatives and friends also called together as is customary in obsequies, even if the funeral Mass for the same is not celebrated in the parish church (Acta T. XII. pp. 333, 334). On this occasion, namely outside the case of burial chosen in a church of Regulars, the funeral fourth is not owed. What today is to be understood by burial chosen in a church of Regulars, see, if you wish, in Acta, T. XIII. p. 416. The case of this election among us is not practical.

(1) n. 104. IV. p. 51. col. 1.

"It is certain that there is in men a power of making laws; but this power, as regards civil laws, belongs by nature to no one except the community of men, and from this it is transferred into one or into many, by whom the community is ruled." St. Alphonsus, L. I. n. 104. What Busembaum writes, ib. n. 94, with St. Alphonsus not reproving it, agrees. Cf. law 1. Quod principi placuit, Dig. L. I. T. IV. Yet some received it immediately from God, as Saul and David.

As regards Bishops, Pius VI writes in a Brief to the Bishop of Mottola, Sept. 16, 1788: "The episcopal dignity as regards order is immediately from God, and as regards jurisdiction from the Apostolic See" (Haine, T. I. p. 55. q. 7), that is, as regards the jurisdiction of this or that see or person (Zaccaria apud Bouix, de Episcopo, P. I. S. I. C. VI. § 1 at the end).

(2) n. 164. p. 72. col. 2.

There are those who explain the matter in this way. If the dispensation is concerning an individual matter, which namely consists in one act concerning some impediment of Marriage or irregularity, it does not cease: because the impediment has already been removed. Otherwise, if it is concerning a divisible and successive matter, for instance concerning the precept of fasting, of the divine office. Haine, T. I. p. 89. q. 90.

(3) n. 178. p. 81. col. 2.

Therefore civil law obliges in conscience even in a case in which by the will of the legislator it is reputed merely penal:

1°. "If the rights of citizens among themselves are defined by law, which otherwise would be uncertain" [for example, many of those things which occur between neighbors (n. 685)], "Blackstone holds ... that conscience is bound." Kenrick, Tr. VI. 20.

2°. If "it prohibits things which are evil in themselves, or commands that those things be observed which are prescribed by divine law; ... since from a higher law, whether natural, or divine" positive, "the obligation is derived, which is fortified by the added civil sanction." Kenrick, l. c. Concerning other civil laws undoubtedly obliging in conscience, treatment will be made in its own place.

To this belongs the distinction between natural and civil obligation. Civil obligation is called that which rests on mere civil law, and it can be called civil obligation, provided that by this name the bond of conscience is not excluded, supposing that the legislator wished to bind conscience; for example, the obligation of the owner toward the owner of a neighboring estate, insofar as it exists not from the nature of the thing itself, for instance from the position of the estate, nor from agreement, but from law alone (n. 681. 1°).

An obligation is called natural and civil when civil law protects the obligation of natural law, for example by establishing penalties against bigamy, or by attributing an action, that is, the faculty of imploring the office of a judge, to one having a right against another, for example from a note.

It can also happen that civil law does not at all care for some natural obligation, for example of paying legal interest, by attributing to the creditor no action against the debtor after some years: this obligation then is called merely natural.

That can be named merely civil obligation which is imposed by civil law giving a right or complaint against the prescriptions of divine law, whether natural or positive; for example, the right of petitioning for divorce, or a complaint against the legitimate owner of some thing granted to the possessor of this thing whose bad faith, although truly such, cannot be proved in a legal manner. Civil laws of this kind not only do not bind conscience, but are opposed to the obligation of conscience. Marres, p. 14. n. 11.

Here, with Marres, p. 13. n. 10, we note that very often civil law attributes to some party the faculty of petitioning for certain things by juridical action, for example the rescission of a testament invalid by civil law, but not by natural law, without nevertheless intending to oblige the other party, whom a testament of this kind favors, to furnish the same things, to renounce the inheritance, before the sentence of a judge.

(4) n. 207. p. 92. col. 2.

It is pleasing here to add certain things concerning the causes and effects of sins.

1°. God cannot be the author of sin, since sin is adverse to Him. It is of faith. Trent, Sess. 6, Can. 6.

2°. The immediate cause of sin is the human will. The mediate causes are either extrinsic, namely the devil (1 Pet. V. 8) and the world, that is, perverse men who try to draw one another and the just to evil, both by word and example and by force and fear; or intrinsic, namely ignorance, that is, lack of consideration concerning motives which could avert a man from sin, such as concerning the baseness and penalties of sin, etc. (Jer. XII. 11), and concupiscence, which is threefold: of the flesh, of the eyes, and pride of life, that is, the inordinate appetite of things which delight the flesh, of riches, and of honors.

3°. The effects of sin are stain, the privation of the brightness of the soul, and indeed total from mortal sin, partial from venial; and the liability of punishment.

One sin per se cannot be the punishment of another, because sin proceeds from the free will of man; but it can be, and very often is, per accidens, insofar as God, in punishment of sin, withdraws helps, deprived of which man voluntarily falls into other sins, as happened to the gentiles, concerning whom Rom. 1. 26. 27. Likewise venial sins dispose to mortal sins.

(5) n. 150. p. 67. col. 2.

If some series of faculties is delegated by the Holy See to Bishops, and of these some are permitted to be subdelegated, the other faculties of the same series, whose subdelegation is not expressly permitted, cannot be subdelegated. You have examples in the extraordinary faculties C, p. LXXII, LXXIII. - Likewise, if certain faculties are permitted to be subdelegated to certain persons, they cannot be subdelegated to others besides these. Let the extraordinary faculties D, p. LXXIII. n. 8, and E, p. LXXIV. LXXV. § fin., be an example. - The reason of each resolution must be sought from that well-known principle: "The inclusion of one" (of some faculties or persons) "is the exclusion of another" (of the other faculties or persons). It is true indeed that one delegated for the universality of causes can subdelegate; but this principle is not so absolute that it can be applied even when its application is excluded: but it is excluded, at least implicitly, in each hypothesis which we have set forth. Cf. T. II. p. 427 (44).

(6) p. LXXI. note 2 at the bottom of the page.

Since this faculty was granted on Jan. 24, 1868, it is deservedly doubted whether it belongs to those of our Bishops who were created after this day. Moreover, to all Ordinaries, when the case occurs, there is ready at hand the faculty of absolving a priest guilty of this crime, if he is impeded for at least five years from personally approaching the Holy See for absolution. See p. LXXXI under 6, and n. 1402. II. 2).

Addenda and Corrigenda

Tom. I.

Page 15, column 2, line 1 reads: dans seu conditiona et. Read: Dens seu conditionata.

Page 67, column 2, line 26 reads: alteri. Read: alteri in perpetuum.

Page 77, column 2, line 29 reads: 497. Read: 479.

Page 82, column 1, line 10 from below reads: 1702. Read: 1704.

Page 91, column 1, line 18 reads: expressa. Read: explicita.

Page 106, column 2, line 2 from below reads: creditor. Read: debitor.

Page 152, column 1, line 5 from below reads: 384. Read: 334.

Page 153, column 2, lines 4 and 25 from below read: 335. Read: 335, II.

Page 169, column 1, line 12 from below reads: At metum passus - excusetur. Read: At metum passus potest juramenti relaxationem petere, ut ab obligatione solvendi excusetur;

Ibid., last line reads: 717. Read: 177.

Page 209, column 2, line 13 from below reads: above. Read: n. 461.

Page 276, column 1, line 20 reads: 661. Read: 651.

Page 316, column 2, line 5 reads: petente. Read: petenti.

Page 427, column 2, n. 1101, q. 5°. I confirm the sentence of St. Alphonsus, according to which more probably the recitation of Matins must be repeated if it was had before that time at which the sun holds the middle of its course between midday and setting, from the declaration which is read apud Muhlbauer. But it was asked whether this declaration is to be understood in such a way that he would not satisfy his obligation who recited Matins with Lauds on the evening of the preceding day before the sun holds the middle of its course between midday and setting. The S. C. responded on 13 July 1883: "Approved Authors are to be consulted." Among the approved authors who have written on this question, that St. Alphonsus is second to none is not something I need say.

Page 431, column 1, n. 1119, and page 432, column 2, n. 1124, q. 12°. Add the Response of the S. C. R., 18 May 1883, in Marionopolitana. "Doubt IV. If it happens in private recitation that Matins is separated from Lauds, it is asked how Matins is to be concluded: ... and how Lauds are to be begun?" The response was: "In the case, Matins is to be concluded with the prayer of the Office of the day; Lauds are to be begun as in the Psalter."

Page 486, column 1, line 2 reads: 000. Read: 427 (44).