§ I. Previous Notions

63. • For a clearer understanding of the matters to be treated in this article, it will help to premise certain notions. And indeed:

I. Concerning liberty and law.

1° A twofold liberty is distinguished: one physical, and it is the force of choosing one's actions, concerning which we treated in nn. 4, 8, and 9; the other moral, involving the right and power of licitly doing or omitting something. Hence physical liberty, or liberty of choice, is also called liberty from necessity; but moral liberty is called liberty from law. In this place, as is clear, the dispute is about moral liberty.

2° Law is the bond of liberty, obliging it to certain acts and prohibiting it from certain others.

64. • II. Concerning doubtful law.

Law can be doubtful in two ways: 1° Simply, that is, with respect to existence, namely when it is doubted whether it has been enacted; whether promulgated; whether the time of obligation has already begun; whether it comprehends such a case or such a burden; whether it extends itself to such persons; whether it commands something or only counsels it.

2° In a qualified sense, that is, with respect to cessation, when the existence of the law is certain, and a doubt only supervenes whether its obligation has ceased; whether someone has an excusing cause; whether he has been dispensed; whether he has fulfilled the law, and so forth.¹

65. • III. Concerning the possession of law and of liberty.

Since St. Alphonsus applies to liberty and to law the known principle of law: "In doubt the condition of the possessor is better," we must explain what that possession of liberty and of law means for itself.

This possession signifies here, the due proportion being observed, exactly the same thing as in the matter of justice; for by analogy it is extended from the matter of this virtue to the matter of the other virtues. For the understanding of this matter, the principle of presumption must be explained by us: "In doubt one must stand for that part for which presumption stands," as that from which the principle of possession draws its force. Presumption is defined by jurists: an anticipated proof of a doubtful thing, drawn from valid arguments and indications. It is called anticipated because presumption, before every legitimate proof (that is, a proof held by law as sufficient), takes something as true; namely, as long as the contrary is not proved, that which is presumed is held as true.

These indications are distinguished in various ways according to the diverse nature of things. One of them, which pertains to the present matter, it helps to unfold in this way: as often as something is known to exist which of its own nature perseveres until it is removed by some contrary fact, it is judged to persevere in its own condition as long as the contrary is not established, so that this judgment yields only to sufficient proof, the burden of which rests upon the other part which impugns it. But it does not yield to an arising doubt; indeed, neither does the doubt effect that even the presumed certainty itself be brought into doubt. Wherefore that which was known to exist, even while the doubt has arisen, is judged to continue and to remain entire. Thus, for example, boundary markers are presumed to be where they were before, unless they are proved to have been changed. Finally, the principle of presumption is plainly general and is accommodated to very many particular cases, the chief of which it helps to enumerate:

1° When suspicion is had concerning someone's crime, his antecedent probity, while the doubt stands, is judged to persevere as long as wickedness is not established; whence the adage: "Everyone is presumed good until he is proved evil."

2° If someone possesses an estate which another contends to be his by doubtful right, the possessor remains in possession until the competitor proves his right; because possession gives birth to a presumption of dominion; whence the axiom: "In doubt the condition of the possessor is better."

3° A law or precept concerning which it is doubted whether it is just is held as just until injustice is proved; whence the principle: "In doubt one must obey the Superior."

These things having been premised, it is permitted to hand down the following notion of possession. Just as in the matter of justice possession is called - a pre-existing exercise of dominion in a certain thing on the part of someone, with respect to another contending concerning dominion, from which possession the thing is presumed to be the possessor's until the contrary is demonstrated - so in like manner, in the matter of honesty, possession of liberty is nothing other than its antecedent certain right with respect to a doubtful law; but possession of law is its antecedent certain obligation with respect to doubtful liberation. This priority effects that, when a doubt supervenes, that which was certain first has for itself a presumption of law, and therefore transfers the burden of proving to the other part. Therefore possession in this matter is taken analogically for any certain right preceding a doubt; whence it follows that the force and sense of the principle of possession can be rendered in this way: "A preceding certain right is not taken away by a supervening doubt, but perseveres until the cessation of the same is proved."

From the given notion we conclude in the following way: just as in the matter of justice, where two dispute about the property of some thing, he who, when the doubt has arisen, possesses the thing is presumed to be its owner, and therefore preserves the right in the thing until the contrary is proved; so in the matter of honesty, as often as there is a doubt between man's liberty and the obligation of law, that which was certain first is said to remain in possession until the contrary is proved.¹

66. • IV. Concerning reflex principles.

Some are for doubts of law, others for doubts of fact. The chief ones are those which follow.

For doubts of law. 1° In doubt the condition of the possessor is better. Moreover, that which was first certain possesses and is presumed. Hence, where liberty was first certain, but an obligation arises as doubtful, there liberty possesses; where, on the contrary, obligation was first certain, but liberation is doubtful, there the law possesses, according to the things just said. To this pertains that other principle of law: "In doubt one must stand for that part for which presumption stands"; for presumption begets moral certainty, at least broad or imperfect certainty. Cf. n. 47.

2° A doubtful law does not oblige. This is understood of a law simply doubtful, that is, with respect to existence, not however doubtful with respect to the cessation of a law certainly existing; for then the law continues to oblige, because, just as certain liberty is not taken away by a supervening doubt, so neither is a certain law. Therefore in this case the principle must be converted, and one must say: "Doubtful liberty does not liberate."¹

Hence, for example, in doubt whether sins doubtfully mortal, or mortal sins doubtfully committed, must be confessed; whether notably aggravating circumstances must be explained, there is no obligation. On the contrary, he who, certain that a mortal sin was committed, doubts whether he has already confessed it, must confess it. In like manner, one who doubts whether he has a sufficient excuse from the observance of the fast, when he cannot conveniently approach the Superior for a dispensation, is bound to observe the law, unless he prudently judges that in the case an excusing cause is probably present, while no probability stands to the contrary; for then there is imperfect moral certainty.²

As to the principle: "In doubt the safer part is to be chosen," applied to a speculative doubt concerning only the honesty of the action, it is proper to the rigorists and altogether false, as will be proved clearly below. It is true in this case alone, when practical doubt is not laid aside or cannot be laid aside, as we showed above in Article III.

67. • For doubts of fact. 1° In doubt a fact is not presumed, but must be demonstrated. That principle proceeds when doubt concerns the principal fact, for example whether you emitted a vow, whether you confessed, etc.

Hence a doubt of law resulting from a doubt of fact must be resolved according to the diversity of the fact to be proved, according to the following rules.

a) In doubt of a fact founding the law, that is, upon which being posited the law or obligation is born, liberty possesses. Hence, for example, in doubt whether the time is present at which the law begins to oblige, you are not held by the law; whether someone is fasting, he can receive Communion; whether or not he sinned mortally, he can receive Communion without having confessed (practically [n. 60, I] contrite). Likewise, in doubt whether counsel given was directed to harm, or, if indeed this is established, whether it is doubted whether harm followed from it, no restitution is to be made after the due inquiry, of course.¹

b) In doubt of a fact supposing the law, that is, upon which being posited the law ceases or has been fulfilled, the law possesses. Hence, for example, in doubt whether the time during which the law obliges has elapsed, you are held by the law.² Likewise, if you doubt whether you have fulfilled the law, for instance whether you have recited the Hours or fulfilled penance, you are obliged, unless from a prudent reason, to which another is not opposed, you can probably judge that you have fulfilled it; for then there arises probable certainty, which, where a legal debt is concerned, suffices so that you are excused. In this way those things must be understood which St. Alphonsus says in L. I, 29-99 at the end, L. IV, 112, q. 3, Second sentence.² It is confirmed from Question I recently reformed, from which it is clear that the reformed doctrine must be restricted to the case in which probability is present for and against. As to L. I, n. 99 at the end, the passage according to the mind of St. Alphonsus seems to have to be reformed according to the cited Question I recently reformed, inasmuch as it was not corrected by the Holy Doctor through forgetfulness.

Likewise, when the debt is certain, but the fact of payment is doubtful, the debtor is bound to pay, or a composition must be made between the parties according to the proportion of the doubt.³

c) In doubt of a fact inducing a conflict of laws or rights, the stronger law prevails. By this reason, for example, a sexagenarian is excused from fasting, because the natural right of preserving life preponderates over an ecclesiastical precept. Likewise, he who prudently doubts whether the hearing of Mass in church on a feast day, or the recitation of the Office, or fasting, is not perhaps going to harm his health gravely, if he cannot conveniently seek counsel or a dispensation, is excused.⁴

2° In doubt one must stand for the validity of the act, or: In doubt every fact is presumed to have been rightly done. This principle holds when the principal fact is established and only some accessory fact is doubted, for instance concerning some circumstance or necessary condition, or concerning the due manner, whether it was present. Then, namely, this kind of accessory fact, due by law or customarily done, is presumed to have been present; its defect, on the contrary, must be demonstrated. This is customarily enunciated by the following axioms: In doubt the fact is presumed which had to be done by law, or which ordinarily is customarily done; and this other one: Delict or defect is not presumed, but must be demonstrated.¹

It is useful to clarify these axioms by some examples, so that it may appear to which cases they can be accommodated, and to which they cannot.

If, for example, someone truly vowed, but doubts whether in vowing he knew or adverted to the obligation of the vow, or whether full deliberation was not lacking, whether he did not vow compelled by fear, whether that fear was grave - one must stand for the validity of the act. But it is otherwise if doubt concerns the very emission of the vow, or whether that which someone vowed is matter capable of a vow, or whether it was not a simple proposal. Likewise in doubt whether a sacramental confession was valid: if it is doubted whether some one of the conditions required for validity was lacking, one must stand for the validity of the act, because then the fact is presumed which by law had to be done. On the contrary, if it is certain that something was lacking, even if required only probably for the validity of the sacrament, for instance knowledge of the mysteries of the Most Holy Trinity and of the Redemption, or an explicit purpose, one must not stand for the validity of the act, but the confession must be repeated. For then it is certain that the fact was not done which by law had to be done; namely, the sacrament had to be received with all things required for validity, even only probably required. Hence from the reflex principles themselves it is clear that St. Alphonsus by no means fights with himself in Theol. Mor. L. III, 2 at the end, L. VI, 450 compared with n. 505.²

3° From things commonly occurring a prudent presumption is made. Hence in doubt whether boys, who before the seventh year certainly arrived at the use of reason, are held by merely ecclesiastical laws, they are not held; because the Church is presumed not to oblige except according to things commonly occurring. But after the seventh year, in doubt whether reason has been attained, they are held; because then from things commonly occurring the obligation is presumed. - In doubt concerning voluntary adherence in venereal delight, if a pious and timorous person who is not accustomed to consent doubts, he must be presumed not to have consented, at least not fully; but if he doubts who is accustomed easily to fall into mortal sins, he is presumed to have consented. - In doubt concerning the validity of the confessions of recidivists, if the recidivist after his confessions has for the most part relapsed quickly and without any resistance, he must be presumed to have had no sorrow or a too slight sorrow and purpose. But it must be said otherwise if he persevered for some time, or before the fall offered at least some resistance.¹